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: Client Update: Adopting the changes - amendments to the New Brunswick Family Services Act lead to opening of sealed adoption records

June 4, 2018

Vasu Sivapalan and Meg Collins

On May 5, 2017, An Act Respecting the Opening of Sealed Adoption Records ("Act") received royal assent, leading to significant changes for birth parents and adoptees across the province. As of April 1, 2018, eligible persons may now apply to access original registrations of birth and adoption orders containing identifying information relating to biological parents and children. This new means of access signals a remarkable shift in family law given the highly confidential status of such documents in the past.

Prior to this Act, which has the function of amending the New Brunswick Family Services Act, birth parents and adopted children were able to access non-identifying information concerning an adoption with relative ease. Non-identifying information, such as year of birth, medical history or physical description, does not reveal pieces of information that might lead to the identification of an individual. This kind of information therefore does not engage the same kinds of concerns with respect to confidentiality that identifying information necessarily does. Identifying information, however, was only released under very particular circumstances, including: voluntary registration, preparation for contact, settlement of an estate, medical histories for treatment, or where there had been consent to the release. These new legislative changes with respect to identifying information therefore serve as a notable departure from the pre-eminence of confidentiality, striking a new balance between the competing concerns of anonymity and full disclosure that are inherent in any adoption.

Purpose

The amending legislation does not explicitly address the purpose underlying these new changes. However, the civic engagement papers released prior to the bill’s passing, in addition to the parliamentary debates concerning the matter, reveal a desire in the New Brunswick legislature to join other jurisdictions in the steps towards uniting parties to an adoption with their biological identities. Indeed, the discussion paper which sought feedback on this change cited developing and maintaining a sense of identity as one of the primary motivations underscoring the decision to open sealed adoption records. This sentiment was echoed by constituents, with 85% of the persons who responded to the discussion paper agreeing that adoption records should be unsealed. Some of the reasons for this support included closure, connecting with siblings and other family members, and establishing ties with Indigenous communities. However, the paper also listed some of the reservations people had with respect to this kind of release, namely the breach of privacy, the risks associated with that breach, and the fact that the results of divulging information may not be as intended. While the narrative of reunion is perhaps a positive one, the reality behind the reasons for an adoption may inflict more pain on applicants than if that history remained unknown. This kind of tension between closure and confidentiality was similarly discussed at the legislative level. During the bill’s second reading, proponents of the legislation spoke passionately about the new sense of belonging owed to New Brunswickers. Access to family, more complete medical histories, and a sense of self were strong themes propelling the passage of the Act. This too was met with some dissension, as one member pointed out that many were fearful of the repercussions of the Act. As in the discussion paper, these reasons revolved around privacy and disillusionment. Far from providing closure, there is the potential that access to this information will open wounds for adoptees, birth parents and their families. Although the Act ultimately prevailed, demonstrating an overriding concern for identity and belonging, this new Act brings with it real issues concerning the disclosure of identifying information. There are mechanisms to address this kind of disclosure (addressed later in this piece), but this new Act does have significant ramifications for those persons who wish to maintain their own privacy.

Eligibility

Adoptees who were born and adopted in New Brunswick and who are 19 or over are eligible to apply for a statement of original registration of birth and an adoption order (to be defined in the next section). A birth parent of a child placed for adoption is similarly entitled to apply for access to copies of this identifying information. Notably, there are two other eligible classes of persons who may apply: adult children of a deceased adult adoptee and adult children of a deceased birth parent whose child was placed for adoption. Even where a party to the adoption has since passed away, the children of those persons are offered the opportunity to access information pertaining to an adoption of which their parent was a party. These new amendments therefore seek to offer closure for those who are either directly or tangentially affected by the adoption. While all of these persons were formerly able to apply for non-identifying information related to the adoption, this new application process can offer a more complete account of the identity of biological relatives.

What you get

As already stated, eligible persons who apply for information relating to the adoption receive the statement of original registration of birth and the adoption order. The original registration of birth is a document containing all the information originally contained in a birth certificate. The adoption order contains all the information listed at the time of adoption, which only includes the name of the adoption parents and the name of the adopted child. Other documents, such as originating court applications or petitions, home assessments, or other pieces of identifying information still remain confidential. There is no recourse available for applicants seeking further information relating to an adoption. The only exception arises where all parties (including birth parents) consent to contact, allowing for the parties to reveal information about the adoption amongst themselves. The obvious issue with this option is that it requires the consent of all parties. This in turn requires that the parties have registered for contact through, or have been located by, Post Adoption Disclosure Services, and that they consented to the disclosure of contact information. In addition, birth parents or adoptees may have since passed away, barring any opportunity to secure consent or exchange information. This limited access to information is noteworthy for the simple reason that registrations of birth often do not contain all of the information the applicant is looking for. While birth registrations will most often list the name of the child at birth and the name of the birth mother, the name of the birth father often does not appear. This could be for a variety reasons: the father was unknown, was not present, or did not sign the registration. Even if the father’s name was included, if the father did not provide a signature affirming his identity, then his name would have been struck from the registration. In a majority of cases, the name of the birth father therefore will not appear on the birth registration statement. For applicants seeking information relating to their birth father, these restrictions pose difficult challenges. Though access to the name of the birth mother may provide a fuller picture for adoptees seeking information, it does not effectively bridge the gap of lost or unknown information facing adult adoptees.

Another important point of discussion concerns access to medical information. Advocates of the legislation championed improved access to medical information through this amendment. While it is true that access to identifying information offers a means to inquire further about medical histories, health history is a form of information that was always available through an application for non-identifying information. In one of the aforementioned discussion papers, the author noted that more education was necessary with respect to the offerings of Post Adoption Disclosure Services as many were unaware that medical information could be provided to applicants even prior to the amendments. Any medical information that appeared on a file at the time could and still can be disclosed to applicants regardless of whether they were or are seeking non-identifying or identifying information. These files, however, often have dated or incomplete information since it is the information that was recorded at the time of adoption. As such, applicants may also request a priority medical search where their medical needs require it. This must be accompanied by a note from a doctor. These new amendments therefore do not offer new access to such information, but rather open up the opportunity to contact and inquire about any medical histories that may not appear on a file.

Other considerations

Disclosure vetos and contact preferences are another potential bar to accessing identifying information. As its name suggests, a disclosure veto prevents the disclosure of identifying information on an original birth registration or adoption order. As of May 2017, any party to an adoption can file a disclosure veto. This means that individuals who do not wish to publicize their role in the adoption maintain the ability to prevent the disclosure of such critical information. Disclosure vetos are amendable at any point, and expire one year after the individual who filed the veto has passed away. They are also only filed in relation to adoptions that took place before April 1, 2018. Contact Preferences are another point of consideration for accessing documents. They may be filed for adoptions that took or are taking place both before and after April 1, 2018 but they cannot be filed in conjunction with a disclosure veto. Unlike a disclosure veto, contact preferences do not prevent the release of identifying information. Rather, they delineate acceptable modes of contact with the person who filed the contact preference. Thus, while an applicant may receive access to the identifying information of a party to the adoption, they may be prohibited from contacting them. Where there is a contact preference, an applicant must sign an undertaking wherein they agree to comply with the terms of the contact preference. Where an applicant does not agree to sign the undertaking, then identifying information will not be released.

Administrative procedure

To apply for identifying information, clients may access the Post Adoption Disclosure department’s website. From there, they may navigate to the Forms and Packages box and click on the appropriate forms. It is recommended that, in order to get the fullest possible information from Post Adoption Disclosure Services, applicants should apply for both the original registration of birth as well as non-identifying information. This allows applicants to register on the Post Adoption Disclosure Registry, enabling Post Adoption Disclosure Services to get in contact should a family member also register or initiate an active search for one family member in particular. This is also the page where children of adult adoptees or birth parents can access the forms necessary to apply for birth registration. There are no fees associated with these services. However, critical to the application process is the inclusion of identifying documentation. All identification must be witnessed, and all applications list the available classes of persons who may serve as witnesses for any identifying documentation.
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