First

Session, 50th General Assembly

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

S.2 Amdt.

Definitions

S.4 Amdt.

Best interests principle

S.19 Amdt.

Consents

S.28 Amdt.

Required documents

Ss.31.1 & 31.2 Added

31.1 Service of documents

31.2 Variation of notice

requirements

S.36.1 Added

Manager to notify Indigenous representative re: adoption

S.40 R&S

Effect on access order or agreement

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

S.64 R&S

Acts do not apply

Ss.64.1 & 64.2 Added

64.1 Persons who may ob-

tain

information

64.2 Information not to be

disclosed

S.65 Amdt.

Disclosure in the interest of adopted child or person

S.66 R&S

Contact by provincial director

S.68 Amdt.

Disclosure of information

S.68.1 Added

Internal review

S.73 Amdt.

Ministerial regulations

S.74.1 Added

Schedule B

S.78 Amdt.

Appeals

Sch. Amdt.

Sch. B Added

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) 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 Mtis 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;

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

18 th 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 18 th

birthday provided that the consent was signed before the child's 18 th

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).

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.

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

(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.

Section 66 of the Act is repealed and the

following substituted:

Contact by

provincial director

(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.

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 .

(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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