39

 

 

First Session, 50th General Assembly

70 Elizabeth II, 2021

BILL 39

AN ACT TO AMEND THE ADOPTION ACT, 2013

Received and Read the First Time................................................................

Second Reading............................................................................................

Committee.................................................................................. Amendment Oct. 28, 2021

Third Reading...............................................................................................

Royal Assent.................................................................................................

HONOURABLE JOHN ABBOTT

Minister of Children, Seniors and Social Development

Ordered to be printed by the Honourable House of Assembly

 

EXPLANATORY NOTES

This Bill would amend the Adoption Act, 2013 to

·         authorize the designation of Indigenous representatives by Indigenous governments or organizations;

·         expand the factors to be considered in determining the best interests of a child to include the importance of sibling relationships;

·         expand the factors to be considered in determining the best interests of an Indigenous child to include the importance of preserving an Indigenous child's unique cultural identity;

·         prescribe the persons whose consent is required for the adoption of an 18 year old child who was in the continuous custody of a manager until the child reached the age of 18;

·         require that an application to adopt an Indigenous child include a cultural connection plan;

·         require that an application to adopt a child include copies of notices sent by a manager to persons who may apply for an openness order and copies of any openness orders granted by a court;

·         prescribe methods for service of documents;

·         allow a judge to vary notice requirements;

·         require a manager to notify an Indigenous representative where an adoption order is granted in respect of an Indigenous child;

·         specify the orders and agreements that cease to have effect after an adoption order is granted;

·         no longer allow a court to order that an access order or access provision in an agreement continue in force after an adoption order is granted;

·         require a manager to notify persons who may apply for an openness order in respect of a child before an adoption order is granted;

·         establish a process for persons to apply for an openness order in respect of a child and authorize the issuance, variation or termination of openness orders by courts;

·         expand the provincial director's authority to disclose information to authorities responsible for adoptions in jurisdictions outside Canada;

·         expand the provisions dealing with confidentiality and disclosure of information; and

·         add additional regulation making authority.

A BILL

AN ACT TO AMEND THE ADOPTION ACT, 2013

Analysis

        1.   S.2 Amdt.
Definitions

        2.   S.4 Amdt.
Best interests principle

        3.   S.19 Amdt.
Consents

        4.   S.28 Amdt.
Required documents

        5.   Ss.31.1 & 31.2 Added
31.1 Service of documents

              31.2 Variation of notice

                      requirements

        6.   S.36.1 Added
Manager to notify Indigenous representative re: adoption

        7.   S.40 R&S
Effect on access order or agreement

        8.   Ss.50.1 to 50.7 Added
50.1 Manager to notify per-

                      sons re: openness

                      orders

              50.2 Openness orders
50.3 Time to apply for

                      openness orders
50.4 Notice of application

                      for openness orders
50.5 Consent order

              50.6 Grant of openness or-

                      der
50.7 Variation or termina-

                      tion

        9.   S.64 R&S
Acts do not apply

      10.   Ss.64.1 & 64.2 Added
64.1 Persons who may ob-

                      tain information
64.2 Information not to be

                      disclosed

      11.   S.65 Amdt.
Disclosure in the interest of adopted child or person

      12.   S.66 R&S
Contact by provincial director

      13.   S.68 Amdt.
Disclosure of information

      14.   S.68.1 Added
Internal review

      15.   S.73 Amdt.
Ministerial regulations

      16.   S.74.1 Added
Schedule B

      17.   S.78 Amdt.
Appeals

      18.   Sch. Amdt.

      19.   Sch. B Added

      20.   Commencement

 

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

SNL2013 cA-3.1
as amended

        1. (1) Paragraph 2(f) of the Adoption Act, 2013 is amended by deleting the words "the Schedule" and substituting the words "Schedule A".

             (2)  Paragraph 2(g) of the Act is amended by deleting the words "Trial Division - Family Division" and substituting the words "Supreme Court - Family Division ".

             (3)  Section 2 of the Act is amended by adding immediately after paragraph (g) the following:

          (g.1)  "cultural connection plan" means a description of the arrangements made to foster an Indigenous child's connection with the Indigenous child's culture, heritage, traditions, community, language and spirituality to preserve the Indigenous child's cultural identity after an adoption order is granted;

             (4)  Section 2 of the Act is amended by adding immediately after paragraph (h) the following:

         (h.1)  "department" means the department presided over by the minister;

             (5)  Section 2 of the Act is amended by adding immediately after paragraph (k) the following:

 

         (k.1)  "Indigenous child" means

                      (i)  an Inuit child,

                     (ii)  a Métis child,

                    (iii)  an Innu, Mi'kmaq or other First Nations child,

                    (iv)  a child who has a parent who considers the child to be Indigenous, or

                     (v)  a person who is at least 12 years of age but under 19 years of age and who considers himself or herself to be Indigenous;

         (k.2)  "Indigenous government or organization" means the entities prescribed in Schedule B;

         (k.3)  "Indigenous representative" means a person designated by an Indigenous government or organization in accordance with the regulations;

             (6)  Paragraph 2(p) of the Act is repealed and the following substituted:

             (p)  "openness agreement" means an agreement made under section 51 or 52 for the purposes of facilitating communication or maintaining personal relationships or cultural connections after an adoption order is granted;

             (7)  Section 2 of the Act is amended by adding immediately after paragraph (p) the following:

         (p.1)  "openness order" means an order made by a court under Part IX for the purposes of facilitating communication or maintaining personal relationships or cultural connections after an adoption order is granted;

 

        2. (1) Subsection 4(3) of the Act is amended by adding immediately after paragraph (c) the following:

          (c.1)  the importance of the relationship between siblings;

             (2)  Subsection 4(3) of the Act is amended by adding immediately after paragraph (d) the following:

         (d.1)  the importance of preserving an Indigenous child's unique cultural identity;

 

        3. Section 19 of the Act is amended by adding immediately after subsection (4) the following:

         (4.1)  Notwithstanding subsection (1), where a child is 18 years of age and was in the continuous custody of a manager until his or her 18th birthday, the only consents required for the adoption of that child are those of the child and of the manager.

         (4.2)  For the purposes of subsection (4.1), the consent of the manager is valid notwithstanding that the order for continuous custody of the child ceased to have effect on the child's 18th birthday provided that the consent was signed before the child's 18th birthday.

 

        4. (1) Subsection 28(1) of the Act is amended by adding immediately after paragraph (d) the following:

         (d.1)  where the child is an Indigenous child, a cultural connection plan;

             (2)  Subsection 28(1) of the Act is amended by deleting the word "and" at the end of subparagraph (h)(ii) and by adding immediately after paragraph (h) the following:

         (h.1)  copies of all notices sent by a manager under section 50.1;

         (h.2)  certified copies of any openness orders that have been granted in respect of the child; and

 

        5. The Act is amended by adding immediately after section 31 the following:

Service of documents

   31.1 (1) Where a manager or another person is required under this Act to serve a document, service shall be made by personally serving a copy of the original document on the person to be served.

             (2)  Where it is impractical to personally serve a document on a person, the document may be served in another manner permitted by the Rules of the Supreme Court, 1986 or the rules of the Provincial Court.

             (3)  Notwithstanding subsections (1) and (2), a notice or other document required to be served on an Indigenous representative under this Act may also be served by

             (a)  leaving a copy, in a sealed envelope addressed to the Indigenous representative, at the office of the Indigenous representative, with an adult person who appears to be an employee of that office; or

             (b)  sending it electronically to the electronic address for service provided by the Indigenous representative.

             (4)  Service under subsections (1) and (3) may be proved by a written or oral statement under oath by the person who served the document.

Variation of notice requirements

   31.2 A judge may

             (a)  shorten the time period to serve a notice under this Act; or

             (b)  dispense with a requirement to serve notice of a proceeding under this Act.

 

 

 

        6. The Act is amended by adding immediately after section 36 the following:

Manager to notify Indigenous representative re: adoption

   36.1 A manager shall notify, in writing, an Indigenous representative of the appropriate Indigenous government or organization of the adoption of an Indigenous child as soon as practicable after the manager receives a certified copy of the adoption order under paragraph 36(1)(b).

 

        7. Section 40 of the Act is repealed and the following substituted:

Effect on access order or agreement

      40. Where an adoption order is granted in respect of a child, the following orders and agreements cease to have effect:

             (a)  any order that grants a person access to the adopted child, other than an openness order granted under this Act; and

             (b)  any agreement that is enforceable under Part III of the Children's Law Act or Part IV of the Family Law Act that grants a person access to the adopted child.

 

        8. The Act is amended by adding immediately before section 51 the following:

Manager to notify persons re: openness orders

   50.1 (1) Before an adoption order is granted in respect of a child who is in the custody of a manager, a manager shall notify the following persons of their right to apply for an openness order under this Part:

             (a)  all persons who, as a condition of an order for continuous custody under paragraph 32(2)(d) of the Children, Youth and Families Act, were granted access with the child; and

             (b)  an Indigenous representative of the appropriate Indigenous government or organization, where the child is an Indigenous child.

             (2)  A notice under subsection (1) shall

             (a)  be in writing in the form set by the minister;

             (b)  state the time period within which the person is required to apply for an openness order;

             (c)  advise that the manager has the right to apply for an openness order at any time before an adoption order is granted; and

             (d)  be provided as soon as practicable after consent from all persons who are required to consent to the adoption of the child under this Act has either been provided or dispensed with.

Openness orders

   50.2 (1) A person who receives notice under paragraph 50.1(1)(a) may apply to a court in accordance with this Part for an openness order respecting the person and the child.

             (2)  The following persons may apply to a court in accordance with this Part for an openness order respecting the child and a person identified in the application:

             (a)  an Indigenous representative who receives a notice under paragraph 50.1(1)(b); and

             (b)  a manager.

Time to apply for openness orders

   50.3 (1) A person referred to in subsection 50.2(1) may apply for an openness order within 30 days of receipt of a notice under paragraph 50.1(1)(a).

             (2)  An Indigenous representative may apply for an openness order within 30 days of receipt of a notice under paragraph 50.1(1)(b).

             (3)  A manager may apply for an openness order at any time before the adoption order is granted.

Notice of application for openness orders

   50.4 (1) A person who applies for an openness order shall, not later than 10 days before the date set for the hearing of the application under this section, serve

             (a)  a copy of the application on the prospective adoptive parent where the identity of the prospective adoptive parent is known to the applicant; and

             (b)  notice of the date, time and place of the hearing on

                      (i)  the person referred to in paragraph (a), and

                     (ii)  the child, where the child is 12 years of age or older.

             (2)  In addition to the requirements in subsection (1), where the person referred to in subsection (1) is

             (a)  a person referred to in subsection 50.2(1), that person shall also serve the documents referred to in subsection (1) on

                      (i)  the manager who provided notice under section 50.1, and

                     (ii)  an Indigenous representative of the appropriate Indigenous government or organization, where the child is an Indigenous child;

             (b)  an Indigenous representative, the Indigenous representative shall also serve the documents referred to in subsection (1) on

                      (i)  the manager who provided notice under section 50.1, and

                     (ii)  any person who will be permitted to communicate with or have a relationship with the child if the openness order is granted; and

             (c)  a manager, the manager shall also serve the documents referred to in subsection (1) on

                      (i)  any person who will be permitted to communicate with or have a relationship with the child if the openness order is granted, and

                     (ii)  an Indigenous representative of the appropriate Indigenous government or organization, where the child is an Indigenous child.

             (3)  Where the identity of a prospective adoptive parent is not known to a person required to serve notice of an application on the prospective adoptive parent under this section the manager shall serve the notice on the prospective adoptive parent.

Consent order

   50.5 (1) Notwithstanding that a person has applied to a court for an openness order in accordance with this Part, where the applicant and other parties to the application agree on the terms that would be included in an openness order, the applicant may, before an openness order is granted, submit a consent order to the court.

             (2)  Where a judge is satisfied that a consent order submitted to the court under subsection (1) is in the best interests of the child the judge shall grant the consent order.

Grant of openness order

   50.6 (1) The court may grant an openness order under this Part in respect of a child where the court is satisfied that

             (a)  the openness order is in the best interests of the child;

             (b)  the openness order will permit the continuation of relationships with one or more persons that are beneficial and meaningful to the child;

             (c)  all persons who will be permitted to communicate with or have a relationship with the child under the openness order have consented to participate in the arrangement under the openness order; and

             (d)  the prospective adoptive parent will be able to comply with the arrangement under the openness order.

             (2)  Where a judge grants an openness order under this Part, the order may contain reasonable conditions that apply to one or more of the following:

             (a)  a person who will be permitted to communicate with or have a relationship with the child under the openness order;

             (b)  an Indigenous representative of the appropriate Indigenous government or organization, where the child is an Indigenous child; and

             (c)  a prospective adoptive parent,

but shall not contain conditions that apply to a manager or the department.

Variation or termination

   50.7 (1) Where an openness order has been granted, a manager or a party to the openness order may, before an adoption order is granted, apply to the court to vary or terminate the openness order.

             (2)  A person who applies to vary or terminate an openness order shall, not later than 10 days before the date set for the hearing of the application under this section, serve

             (a)  a copy of the application on all persons who appeared at the hearing in which the openness order was granted other than the child; and

             (b)  notice of the date, time and place of the hearing on

                      (i)  the persons referred to in paragraph (a), and

                     (ii)  the child, where the child is 12 years of age or older.

             (3)  A court shall not make an order to vary an openness order unless the court is satisfied that

             (a)  a material change in circumstances has occurred; and

             (b)  the proposed variation of the order is in the best interests of the child.

             (4)  A court shall not terminate an openness order unless the court is satisfied that

             (a)  a material change in circumstances has occurred; and

             (b)  termination of the order is in the best interests of the child.

 

        9. Section 64 of the Act is repealed and the following substituted:

Acts do not apply

      64.  Notwithstanding the Access to Information and Protection of Privacy Act, 2015 and the Privacy Act (Canada), the collection of, use of, disclosure of and access to information in records created by or received by the department in the exercise of all powers, duties and functions under this Act, regardless of where the information or records are located, shall be governed by this Act.

 

      10. The Act is amended by adding immediately after section 64 the following:

Persons who may obtain information

   64.1 (1) The following persons have the right to and shall, on request, be given information about himself or herself:

             (a)  a prospective adoptive parent;

             (b)  a person who has been considered for approval as a prospective adoptive parent;

             (c)  a birth parent who requested that his or her child be placed for adoption under the Act but no adoption order was granted in respect of the child; and

             (d)  a birth parent who considered having his or her child placed for adoption under the Act but decided not to place the child for adoption.

             (2)  Where information excepted from disclosure under section 64.2 can reasonably be severed, a person who is otherwise permitted to receive information under this section shall be given the remainder of the information.

Information not to be disclosed

   64.2 Notwithstanding section 64.1, the provincial director or a manager

             (a)  shall not disclose information where

                      (i)  the disclosure is prohibited under the Children, Youth and Families Act, the Young Persons Offences Act or the Youth Criminal Justice Act (Canada),

                     (ii)  there are reasonable grounds to believe that the disclosure may result in physical or emotional harm to that person or to another person, or

                    (iii)  the disclosure could reasonably be expected to jeopardize a criminal investigation; and

             (b)  may refuse to disclose information that is a transitory record as defined in the Management of Information Act.

 

      11. Subsection 65(1) of the Act is repealed and the following substituted:

Disclosure in the interest of adopted child or person

      65. (1) The provincial director may disclose identifying or non-identifying information to a person where the disclosure is

             (a)  in the best interests of an adopted child or adopted person; or

             (b)  necessary to allow an adopted child or adopted person to receive a benefit.

 

      12. Section 66 of the Act is repealed and the following substituted:

Contact by provincial director

      66. (1) In circumstances affecting a person's health or safety, the provincial director may contact a person listed in subsection (2) for the purposes of

             (a)  providing identifying or non-identifying information to the person; or

             (b)  obtaining identifying or non-identifying information from the person.

             (2)  The provincial director may contact the following persons for the purposes of subsection (1):

             (a)  a birth parent;

             (b)  where a birth parent cannot be contacted, a relative of a birth parent;

             (c)  an adopted person; and

             (d)  an adoptive parent.

 

      13. Subsection 68(2) of the Act is amended by deleting the word "province" wherever it appears and substituting the word "jurisdiction".

 

      14. The Act is amended by adding immediately after section 68 the following:

Internal review

   68.1 (1) The minister shall appoint a person to perform an internal review of a matter referred to in subsection (2).

             (2)  A person who requests information under section 64.1 and who is not given the information requested may apply to a person appointed under subsection (1) for an internal review of the refusal to give that information.

             (3)  An application under subsection (2) shall be made in writing no later than 30 days after the person is notified that he or she will not be given the information requested.

             (4)  An internal review shall be performed within 30 days of the receipt of the written application, and the results of an internal review shall be provided to the person who requested the review, in writing, within 5 business days of being decided.

             (5)  An appeal lies from the decision of the person conducting the internal review to a judge of the Supreme Court.

 

 

      15. Section 73 of the Act is amended by adding immediately after paragraph (a) the following:

         (a.1)  respecting the designation of Indigenous representatives by Indigenous governments or organizations;

 

      16. The Act is amended by adding immediately after section 74 the following:

Schedule B

   74.1 (1) The Lieutenant-Governor in Council may, by order, add or remove an Indigenous government or organization to or from Schedule B.

             (2)  An order made under subsection (1) is subordinate legislation for the purpose of the Statutes and Subordinate Legislation Act.

 

      17. (1) Paragraph 78(a) of the Act is amended by deleting the words "Trial Division - General Division" and substituting the words "Supreme Court".

             (2)  Paragraph 78(b) of the Act is amended by deleting the words "Trial Division - Family Division" and substituting the words "Supreme Court – Family Division".

 

      18. The Act is amended by renaming the Schedule as Schedule A. 

 

      19. The Act is amended by adding immediately after Schedule A the following:

Schedule B

Miawpukek First Nation

Mushuau Innu First Nation

Nunatsiavut Government

NunatuKavut Community Council

Sheshatshiu Innu First Nation

Commencement

      20. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.

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