1995 Legislative Session: 4th Session, 35th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

WEDNESDAY, JUNE 28, 1995

Afternoon Sitting (Part 2)

Volume 21, Number 17

[ Page 16361 ]

The House resumed at 6:35 p.m.

[The Speaker in the chair.]

Hon. G. Clark: In the House tonight, I call committee stage of Bill 51, continued debate. In Committee A, I call Committee of Supply for the purposes of concluding the estimates of the Ministry of Employment and Investment.

ADOPTION ACT

(continued)

The House in committee on Bill 51: D. Streifel in the chair.

section 3 (continued).

V. Anderson: I think we need to take a few minutes on

section 3 to flesh out the meaning of it, because it's such a crucial

section to the rest of the bill. The validity of the rest of the bill comes from a number of things in this section. The child's safety and physical and emotional needs and level of development are fairly standard, and most people understand that. But you might say about the importance of continuity in the child's care.... One of the concerns we have is that for many children in foster care, for instance, there has been anything but continuity in their care.

So many children are held in abeyance before adoption and are going through a lot of other concerns that it would be important to share the relationship between foster care, which is the guardianship of the government over children.... These are primarily the children who get held up, and there should be some discussion about how children in foster care might more quickly get into permanent care through this act than they would otherwise. I have another question as well.

Hon. J. MacPhail: The hon. member's point is very well taken. In the implementation of the new act we will also be putting in place a case management model that ensures the progress of a child -- a permanent ward; I hate that term but that's the term -- into the adoption process much more quickly, to avoid exactly what the hon. member aptly describes.

V. Anderson: I appreciate that. That's very crucial, and people need to see the breadth of the relationships here.

The other thing that I raised the other day in second reading and also talked privately to the minister about.... When we talk about the child's physical and emotional needs, one of the realities that I'm not sure the community at large is aware of.... So often we hear about a shortage of adoptive parents because there are very few adoptive children. In the sense of healthy, small infants, that's true, but I wonder if the minister would tell us.... It's my understanding that there is a large number of children with handicaps, disabilities and special needs out there.

We need to understand the number of children for whom, at the present time, there are no adoption homes. I don't think that the community at large is aware that there are these children desperately in need of homes and no parents coming forward to provide them. I think we need to clarify what that particular need is in relationship to this act.

Hon. J. MacPhail: There are, sad to say, approximately 2,000 children who are in the permanent care of the ministry, the government. Of those, about 500 are under the age of 12. I don't want to suggest that each and every one of those.... Some of those children are in permanent foster homes or in the care of a relative, but many, many, many of those children are able to be adopted. They have a variety of special needs. There are many hundreds of children out there who are able to be adopted right now and are not.

V. Anderson: There are 2,000 children in permanent care at this point, and 500 of those are under the age of 12, so 1,500 are over the age of 12. Could you describe some of the special needs some of these children have? One of the reasons I raise this is that when we were going through an adoptive process ourselves, we discovered that there were some persons who felt very qualified to look after a person who had a mental handicap. On the other hand, there were persons who felt extremely qualified to look after a person who had a physical handicap, and others who felt well qualified to look after an older person.

There were persons who would be willing, even, to take a family of two or three into their household if they knew that that need was there, and there are those who would take youngsters of, as they used to be called, mixed-race background for whom there were no homes available in their own culture -- or they may be a culture of one group, but their homes were not readily available, so it was more difficult to find them placements.

I think this is a good opportunity for us to understand that adoption is about a whole range of children -- up to 2,000 of them -- who do not have adoption placements at this point. It is those 2,000 that we are talking about as much as the 100 or 200 that may be adopted, which is what we usually think of. I think it is important that we highlight that group.

Hon. J. MacPhail: Let me say first that the hon. member has listed many of the categories. Unfortunately, those categories that you have outlined of children who are available to be adopted still exist: siblings, minorities as you say, children with physical health problems, children with behaviourial problems, children born addicted to drugs, FAS and FAE children. They are all wonderful human beings, capable of being loved and of loving, but they are still available for adoption.

I hope -- and I believe -- that this new act will reinvigorate the entire adoption process so that there will be great hope for these children. We're bringing to light adoption as a viable way of looking after our children and really opening up the adoption process. I have great hope that the children now on the waiting list will be adopted.

[6:45]

V. Anderson: If it doesn't come back and revive the adoption process, I'll be after the hon. minister for her false promises. It's extremely important, as an adoptive parent, to know the joys and excitement of that opportunity.

Though it comes up later in the act, it's relevant to say here, when we're talking about the physical and emotional needs, to have the minister confirm -- as I understand we'll be discussing later -- that if parents adopt some of these children with special needs, and if they have medical needs which are going to cause extra financial hardship, the act is there to help provide some of the financial support for those parents if they come forward to respond in a caring way.

[ Page 16362 ]

Hon. J. MacPhail: That exact provision is under

section 80.

J. Tyabji: Subsection 3(1)(

e) talks about the effect of maintaining that relationship. Is it the implied effect on the child of maintaining that relationship, or is it the effect in general?

Hon. J. MacPhail: It reads, as it does on the face, "the effect on the child if there is delay...." But the entire clause has to be read in the context of the best interests of the child.

J. Tyabji: Someone might judge the best interests of the child as being the effect in general rather than just on the child, so that's reassuring.

What are the factors in security?

Section 3(1)(

d) talks about a secure place. What kinds of things are taken into account regarding security? Or will those be determined while drafting the regulations?

Hon. J. MacPhail: It's always.... The security is in the context of the specific needs of the child who is being adopted, but it's basically a safe, stable and consistent home.

J. Tyabji: Under

section 3(2), we see again the differentiation of aboriginal versus non-aboriginal. Since subsection (1) of

section 3, which is titled "Best interests of child," says "all relevant factors must be considered," and subsection (1)(

f) says "the child's cultural, racial, linguistic and religious heritage," that seems to be covered. Yet subsection (2) of

section 3 says: "If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered...." Why is it separate? Wouldn't that be covered under subsection (1) automatically?

Hon. J. MacPhail: Again, this is a replication of what exists in the Child, Family and Community Service Act, so I say with the greatest of respect that the debate that occurred last year applies here. This is in recognition of the reality that 30 percent of our children who are adopted -- or 30 percent of our children who are in care -- are of aboriginal descent or aboriginal heritage, and that there is a wealth of communities ready and willing to participate in planning for the future of their aboriginal children.

J. Tyabji: Just a quick follow-up. I do recognize that we had a lot of this debate last year when we were talking about protection of children, but now we're talking about placement and adoption. The last question I have on this is that subsection (2) talks about the importance of preserving the child's cultural identity. Last year we covered this to some extent, and I haven't reviewed Hansard to see if we asked this specific question. But we know that in subsection (1), when they're non-aboriginal children, we're talking about the child's heritage. In subsection (2) we're talking about the child's identity. In the

definitions

section we talk about aboriginal children as children who have one parent who may be of aboriginal ancestry and who considers himself or herself to be aboriginal; that's a very loose definition.

The cultural identity of the child could be something that the child has never encountered. That's one thing I'd like to ask: could the cultural identity be something that runs with the child's ancestry rather than the child's upbringing to that point, if the child is not a baby?

Hon. J. MacPhail: Yes.

J. Tyabji: In that case, how do we reconcile the continuity of care in subsection (1) and the continuity of care which could be in a non-aboriginal home with absolutely no aboriginal surroundings -- if it's a foster parent, for example, and the child is going to be adopted? Could there be a situation or is subsection (2) supposed to permit, for example, an aboriginal child in foster care with a non-aboriginal family being taken into a new context, which would be an aboriginal context because of that child's biological heritage?

Hon. J. MacPhail: The courts will use this whole

section to determine the best interests of the child. Where cultural identity is a factor to be considered, the courts will put that as a factor to be considered. The continuity of care has to be read in the context of whatever is in the child's best interest for continuity of care. The court can also consider, where it is being asked to consider -- if one of the birth parents suggests it is important -- that the cultural identity be a factor as well.

R. Neufeld: I know there's been lots of discussion about "aboriginal child." I recall the studies that were done and the aboriginal community asking, in the main, that their children be returned to the communities for adoption or for foster homes. I fully agree with that, so I don't have a lot of questions about the aboriginal child.

But I do want to go to the cultural, racial and linguistic

part in subsection 3(1)(

f) regarding other races. We place an awful lot of importance on that, I understand, because the aboriginal community asked for that. What importance do we place on children of Chinese or Japanese descent or of other races? Are there homes available in the spectrum of homes that we have for those other races? Or are they maybe not being adopted out because there's not a home that they can go into?

Hon. J. MacPhail: One of the things I've learned about adoption is that there are cultural issues around children being put up for adoption. There's actually an entry issue around culture. The extended family in some cultures look after the child, and therefore they're not available for adoption.

However, where children of a specific cultural or racial background are available for adoption, part of the process is to consider a match wherever possible. If that's not possible, then I know that as part of the arrangements, courts often say that there should be a consideration for the adoptive parents to expose the child to his or her cultural background in some other way. I think it's safe to say that there are certain cultural backgrounds where children just aren't available for adoption; they just aren't there.

R. Neufeld: Will this

section of the act hinder the ability to adopt children out when there may not be a home that their culture would fit into? I would hope that someone would have some authority to bypass this part -- the child's cultural and racial and linguistic heritage -- so that if there is an opportunity for a child.... I'm sure there are homes that specify -- in fact, I know there are -- that they would like to take in a child of a different race. I just hope that this would not be held so hard that it would disallow the opportunity for a child to be placed.

[ Page 16363 ]

Hon. J. MacPhail: Yes, you're quite right; it's not mandatory and it's not overruling. There would not be a hindrance to a child being adopted into a home that's not of his or her cultural background. All this is saying is that it's a consideration -- that's it.

V. Anderson: I would like to comment just briefly, first of all, on subsection (h), which is the effect on the child if there is a delay in making a decision. I know that in his study about children, Judge Gove indicated that a great deal of lasting harm had been done to children because so many processes were so slow in taking place -- reminding us that a day or a week in the life of a child is maybe a year in an adult's life. So I really appreciate that timeliness being there.

It's one of the difficulties of using the term "aboriginal." It's a shorthand which is useful, but it is historical shorthand; it's not a racial or an ethnic shorthand.

I think we're acknowledging that there has been an inappropriate relationship created with the people of this early heritage. That is what is returning to people: that which is rightly theirs -- their heritage and their inheritance. I'd like to stress that I appreciate that this is not a racial discussion; it's a historical reality which the courts have said we must deal with, not racially but historically. I'd like to stress that and support it on that basis -- not on a racial or an ethnic background....

Aboriginal people don't consider themselves part of the multicultural community. That is terminology which is not appropriate as far as they are concerned. They stand in their own historical primary reality, and I think it's important that we consider it in that context and in that context only.

J. Tyabji: I don't want to get back into second reading debate, but given that there are people monitoring this debate, I'd like to put on the record that I obviously have strong disagreements with both the minister and the previous speaker on this issue. When we write legislation directed at someone's race and we differentiate in this way, it's racist. We have been racist toward the aboriginal people since we started to pass laws in this country, and they won't be equal until we start to treat them equally in all respects, in the eyes of the law.

Section 3 approved.

section 4.

J. Tyabji: I note that usually, in drafting legislation, things are placed in a certain sequence, usually for emphasis. If that's not the case, maybe the minister could tell me. But here, where it says, "The following may place a child for adoption:..." the superintendent is listed first, then an adoption agency and then a birth parent or other guardian of the child. Is that because everything is now going to fall under the umbrella of the superintendent? Are we to read in there that it could be in any order of particular importance?

Hon. J. MacPhail: No, there is no ranking in this section.

Section 4 approved.

section 5.

Hon. J. MacPhail: Hon. Chair, I would ask that we stand down

section 5 until later in the debate.

The Chair: Would that be to stand down the vote, or the debate on it? The member for Vancouver-Langara.

[7:00]

V. Anderson: When we discussed this earlier, we had a suggested agreement that we deal with

section 5, both the debate and the vote, at the same time that we deal with

section 29, because it's the same issue. Let's not repeat it. We understand that division will be called, and therefore it can be done all at the same time.

I would support standing down both the debate and the vote on

section 5, and dealing with that when we come to

section 29, which is essentially the same.

The Chair:

Section 5 is stood down.

section 6.

Hon. J. MacPhail: I move the amendment to

section 6, which is in the possession of the Clerk:

[SECTION 6, in the proposed

section 6(1)

(

a) by deleting paragraphs (

b) and (

c) and substituting the following:

(

b) if the birth parent or other guardian requesting placement wishes to select the child's prospective adoptive parents, provide the birth parent or other guardian with information about prospective adoptive parents who have been approved on the basis of a homestudy completed in accordance with the regulations, , and

(

b) by deleting paragraph (

e) and substituting the following:

(

e) give the prospective adoptive parents information about the medical and social history of the child's biological family, .]

On the amendment.

Hon. J. MacPhail: I just want to give a very quick explanation of it.

The amendment to

section 6(1) first of all clarifies that the birth parent or other guardian requesting placement can choose the adoptive parents for their child if they desire to do so, and it clarifies that information regarding the home study and the child's biological family must be shared between the parties. It's not permissive; it's required.

In no way are we doing anything to limit anybody's rights here; we are just saying that in order for the process to be as fully informed, open and inclusive as possible, this information must be shared.

[ Page 16364 ]

V. Anderson: Just as a clarification, I am presuming that it balances out that the full information about the child being placed is provided to the adoptive parents in the same fashion that full information about the adoptive parents is provided to the child. I just want to make sure that that's working equally in both directions.

Hon. J. MacPhail: I think you meant to the birth parent. Yes, the information flows both ways.

J. Tyabji: Certainly the change to

section 6(1)(

e) is much better, obviously, because it makes it mandatory to give prospective adoptive parents information about medical and social history. But I am confused about the change to subsections (1)(

b) and (1)(c). We are deleting subsection (1)(b), which says that the superintendent or an adoption agency must "complete, in accordance with the regulations, a homestudy of the prospective adoptive parents," and are putting in its place: "... if the birth parent or other guardian requesting placement wishes to select the...adoptive parents," provide them with information.... Would these parents who have been approved on the basis of a home study?

What I am concerned about is when we take out subsection (1)(b). If the intent of the amendment is to amalgamate (1)(

b) and (1)(c), where does insistence on the completion of a home study come into play? Have we taken that out? It almost seems like we have now taken out the legal requirement for a home study. If not, could the minister point to where it is still in the bill?

Hon. J. MacPhail: Well, to clarify, the new subsection (1)(

b) says: "...on the basis of a home study completed in accordance with...." So it's in there. But it's also in

section 6(2): "The superintendent or an adoption agency may only place a child...who have been approved on the basis of a homestudy."

Interjection.

J. MacPhail: That is

section 6(2).

J. Tyabji: I understand subsection (2) being there. It's just that prior to the deletion of

section 6(b), which said very simply the superintendent must "complete, in accordance with the regulations, a homestudy of the prospective adoptive parents...."

Interjection.

J. Tyabji: No, I understand that. We have taken that out.

The amendment says "if the birth parent or other guardian requesting placement wishes to select the child's prospective...parents." If they wish to select, then the superintendent must provide them with information on these parents who have been approved on the basis of a home study. So there's an "if." If they don't want to select the parents, I'm assuming that there still has to be a home study completed in accordance with the regulations, because we make reference to it not only in this amendment but also in subsection (2).

But we've just taken out the legislative requirements for a home study to be completed in accordance with the regulations. Now, if it's enough for it to be implied, then that's fine. But if it does have to be somewhere by legal requirement, then maybe we'd want to leave subsection (

b) and just take out (

c) and put that amendment into (c).

V. Anderson: I would like to support that discussion. It seems to me that if you simply replace (

c) with the new one and leave (

b) in, then you have clarified the issue and made it much clearer that the home study is a requirement -- (

b) replacing (

c) simply does that. If the minister is willing to move that amendment, I'm certain she would get support on doing that. Leave (

b) in and replace only (

c) with this amendment.

Hon. J. MacPhail: Let me try to give some assurance that what you're asking for is already there under two parts. One is that the language included in (

b) is on the basis of a home study being completed. Don't forget we're talking about parents who have already been approved. Then subsection (2) of

section 6 covers the fact that home studies have to be done generally and always.

J. Tyabji: Could the minister, then, tell me where we will find a home study completed in accordance with the regulations if the birth parent or other guardian giving the child up for adoption doesn't wish to select the prospective adoptive parents?

Hon. J. MacPhail:

Section 6(2) requires that a home study be done for the placement of any child, and

section 91(2)(

f) talks about the regulations for home studies.

Amendment approved.

section 6 as amended.

J. Tyabji: Just on sub-subsection (2)(f), where the superintendent has to "make sure that the child, (

i) if sufficiently mature, has been counselled about the effects of adoption, and (ii) if 12 years of age or over, has been informed about the right to consent to the adoption," how is this going to be determined? Is this determined at the superintendent's discretion? Or are there going to be regulations which provide guidance to the superintendent?

Hon. J. MacPhail: The

section around 12 years of age or older is under the old act as well, so there's no change there. But it will depend -- I know the hon. member is the mother of three children, and I speak as a mother here -- on the individual situation of the child, the determined maturity.

J. Tyabji: Is there going to be any expectation of psychological assessments? Will an actual clinical psychologist or family court counsellor determine whether the child is mature?

Hon. J. MacPhail: No.

J. Tyabji: Then I repeat one of my first questions: is it solely at the discretion of the superintendent?

Hon. J. MacPhail: No, it's not the sole interest. It could be the agency; it could be the adults around the child. The fact of the matter is that the court will be using that as a determination of the child's best interest, so it will have to be sought.

[ Page 16365 ]

V. Anderson: On

section 6(2), we had a little bit of this discussion during the

definitions. Here we are stressing that a home study is required for adoption. I think this is the key factor in this area. Could the minister expand on the nature of the home study here? There is very little understanding of the comprehensiveness of a home study. That was one of the concerns that was raised by certain private agencies -- that the kind of home study was not involved or was not there for international or interprovincial adoptions. I think we need some assurance that the whole new validity and strengthening of the home study is here.

In that regard, since we have been through the unfortunate circumstances of the Gove inquiry and discovered that we did not have qualified personnel in the field to deal with children, what are the upgrading qualifications? What is going to be done to qualify social workers in the field to do the new kind of home study which is required by this act? A different kind of home study, in effect, has been generally available in many adoptions.

Hon. J. MacPhail: Actually, it's the reverse of the situation, and I'm pleased to report this. Ministry social workers now do the home studies and carry the expertise in that area. It's outside of the ministries that there will need to be an expansion of home study expertise. Again, as I suggested earlier, the purpose of the home study is to assist prospective adoptive parents in evaluating their abilities to meet the needs of a child by adoption and, then, also to gather information which will enable the birth parent, the ministry or the licensed agency to make placement decisions.

The regulation of home studies, of course, is to be determined in a broad public consultation process and also -- there is no question -- within the licensed agencies themselves. The agencies in the adoption community understand that they will have to become expert in the area of doing home studies. Many of them are already, but if they are not now, they will have to become expert.

V. Anderson: The other part of it that I think is not well understood, if you haven't been through the process yourself.... Many of the people who are interested in this act are people who have not been through the adoption process. I'm discovering that people who have not experienced the process have a different understanding of what is going on from that of people who have been through the process. It seems to me that we need to clarify that the home study is not only to indicate that these parents are qualified and able to adopt a child but that there is a match.

In putting a child together with a particular parent, it's the needs of the child rather than the needs of the parent that are uppermost.

Let me give a simple illustration. In our own particular case, it was the understanding of those doing the casework for our daughter that her parents were musical in nature. So one of the things that they were looking for were parents who had a musical interest, because they felt that would give her the best opportunity to develop that musical nature. What I'm saying is that there are a variety of characteristics in the home study that, I think, are broader and on which we need to focus. There may be a dozen parents who are all approved for home study.

They don't necessarily get the first child who comes along, because that child has to be matched with a home that meets the needs of the child. It's that need that is primary. It's not the needs of the parents; it's the need of the child to fit in. I think we need to stress that so that people really highlight the needs of the child in that regard.

Hon. J. MacPhail: There's nothing like personal experience to clarify legislation, and the hon. member is exactly right.

J. Tyabji: Under subsection (2), would a home study be where this act is captured by the Criminal Records Review Act that has just been passed? In that debate and in discussions with the minister, there was a reference that there would be criminal record checks on prospective parents.

Hon. J. MacPhail: Yes.

R. Neufeld: Further to that question, which I was going to ask further on in the act, I have a question on criminal records. Maybe I should know this, but how far do we define criminal activity before someone is not able to adopt? I believe that drunk driving, for instance, is a criminal offence. Would that record prohibit someone from being able to adopt a child?

Hon. J. MacPhail: The criminal-record check is an indicator for assessing the best interests of the child, and it's.... How can I say this?

R. Neufeld: You commit one crime and you're out.

[7:15]

Hon. J. MacPhail: No, I don't want to indicate that. I'm not addressing your specific example yet; I'm talking about the general parameters of the criminal-record check. It's to determine your ability to parent. I don't want to speculate on hypotheticals, but consistent abuse of alcohol that leads to a criminal offence may be a factor or it may not -- but it's a consideration. It's all in the context of the ability to parent.

Section 6 as amended approved.

section 7.

J. Tyabji: When we look at

section 7(1)(b), this is obviously where there is a philosophical difference, because we're dealing with aboriginal communities here. I note that it says that if the child "is not registered or not entitled to be registered as a member of an Indian band," then the superintendent has to make reasonable efforts to discuss the child's placement "with a designated representative of an aboriginal community that has been identified by (

i) the child, if 12 years of age or over, or (ii) a birth parent of the child, if the child is under 12 years of age."

When we were dealing with the Child, Family and Community Service Amendment Act, 1995, we found that it could be a member of an aboriginal community who could have input with the minister. In this, it's fairly narrow. We're talking about either the child, if the child is over 12, or a birth parent, and I'm assuming that the birth parent may be the non-aboriginal birth parent of the child. I'm not clear on that,

[ Page 16366 ]

because we could have a birth parent of the child who is non-aboriginal, and I would assume that under this section, the parent would have to identify a designated representative to assist the minister in deciding which aboriginal community or which band would be relevant to this child's placement, when we go back to

section 3, the child's best interests.

Could the minister clarify that? In the event of the child being under 12 and a birth parent not being a member of an aboriginal community, would it still be the birth parent assisting that representative? If the birth parent is not available for some reason, what would the process be in this section?

Hon. J. MacPhail: There are so many hypotheticals here. If there is no birth parent who is aboriginal to identify with an aboriginal community, it doesn't happen. I'm really unclear as to which hypothetical we're talking about here.

J. Tyabji: Maybe if I'm more specific.... The birth mother is non-aboriginal, the father is a full-blooded aboriginal, and the child is being placed for adoption. The father is not in the picture, and the mother is the one who is placing the child for adoption. What happens in that case?

Under sub-subsection (2)(b), I note that a birth parent can object to a discussion taking place with respect to designation, but I don't know what form that objection takes. I don't know if they would have to be aware of that

section of this act first, or if they would just have to say: "I'm not interested." If they say they are not interested, does that cancel out the provisions under subsection (3)?

Hon. J. MacPhail: The parent has to say "I'm not interested" and this

section doesn't come into play.

V. Anderson: One of the realities we have at the moment in relationship to aboriginal parents is the understanding of a moratorium, which is not referred to in this act. My assumption is that when this act is passed, that moratorium ceases, and this act in its proper form -- as it is written here -- will apply. I hope so, because I think that what is written here covers the bases. The moratorium, in effect, has deprived some children of the opportunity to be adopted in a timely manner. It has kept them on hold when there was no hope of adoption at that particular time.

I want to clarify that once this bill is passed, the moratorium -- which is not in here -- does not have an override and is now done with. I hope that is true.

Hon. J. MacPhail: Yes, and I'm sure the hon. member opposite knows that the moratorium was only in place as policy and for children who were wards of the state, in the care of the ministry. It didn't apply to private adoptions. What the new act does is say that no matter what agency or method the aboriginal child is being placed by, considerations around background, etc., have to be taken into account.

I want to clarify that we're not in a rush to change our policy around the moratorium for children who are wards, mainly because it's working okay; it's working in the best interests of the children. But we'll assess it as the new act unfolds. Certainly more and more aboriginal communities are saying: "Give us more ability to look after our children and be responsible for adopting our children." I note that that specific point was the issue of discussion between your leader and the First Nations Summit delegates.

The act doesn't actually.... There is no moratorium that is invoked by the act -- you're quite right -- and certainly the policy of the past is limited to children who are in the permanent care of the ministry. We are going to monitor that and keep a very close eye on it, to make sure that we're doing the right thing from the point of view of implementing the new act and ensuring the best interests of children of aboriginal background.

V. Anderson: I'm surprised at the answer. Because what it says is that regardless of what the act says, for children in the care of the ministry, they can override the act and create any policy they want. It's not a question of regulations; she's talking about policy. That wasn't in the old act, and I think they were acting improperly in doing it. It denies the timely fashion that we just discussed in a previous section: the effect on the child if there is delay in making a decision.

I've been made aware very recently of children who are being placed in long-term foster care and moved from place to place, because this policy of the moratorium was in place, which prevented them from receiving timely, continuous care and from having -- as this act provides -- the developing relationship in a family that would develop their heritage.

To have as a policy a moratorium as a policy that overrides the act is unconstitutional and improper, I think, and should be challenged in court. If you're going to say, "This is the act, but we have a policy that says we'll do something else," that is inappropriate. I think it's a shame to do that. I know all the reasons for putting it in place. But once the act is in place, it must stand on its own feet. You cannot have policies that contradict and override the act.

The act is there: the children will be placed in a timely fashion, they will have continuity of care, their cultural background will be assured, and the contact will be there. There is no reason whatsoever for a moratorium. There hasn't been, except that it pushed the ministry to get on with what it should have been doing anyway. I agree that they should have been doing that, but to carry the moratorium, to deny the validity of a legal act that's being put forward and to say....

If that policy holds true with the rest of the act, you're saying: "Well, it doesn't really matter what we pass here; we'll have a policy to override it." I just don't think we can do that, so I object strongly.

Hon. J. MacPhail: The hon. member misunderstood what I was saying. In terms of this act and in combination with the Child, Family and Community Service Act, it is exactly what the hon. member espouses. That the ministry must now do under law what it should have been doing all along is exactly the case. In fact, it's working very well. Fewer children are coming into the system, because aboriginal communities are being informed, are participating in the process and are looking after their children.

The aboriginal communities themselves say: "Keep on doing this with us, and eventually the problem will not even exist." You and I are not disagreeing. We are saying is that we should carry on doing exactly what we always should have done, which is, in the best interests of the child, to maintain their aboriginal heritage, etc. And that's exactly what we're doing. We will continue to do that until this is absolutely a non-issue, which I hope is very soon.

Section 7 approved.

section 8.

Hon. J. MacPhail: I move the amendment to

section 8 which is in possession of the Clerk.

[ Page 16367 ]

[SECTION 8, in the proposed

section 8 (2) by deleting paragraphs (a), (

c) and (

e) and substituting the following:

(

a) provide information about adoption and the alternatives to adoption to the birth parent or other guardian proposing to place the child,

(

c) give the prospective adoptive parents information about the medical and social history of the child's biological family,

(

e) give a copy of the pre-placement assessment to the prospective adoptive parents and to the birth parent or other guardian of the child, and .]

On the amendment.

J. Tyabji: Just a quick question. I note that the amendment has the effect of taking out the provision to give "to the birth parent or other guardian a written statement of alternatives in the prescribed form." Why was that taken out? Is that somewhere else, or is that just implied by the first part of that section?

Hon. J. MacPhail: This amendment is just to make this consistent with subsection 6(1), which we've already discussed. But it will still be in writing, and it could take many different forms.

Amendment approved.

section 8 as amended.

R. Neufeld: A quick question to the minister about pre-placement assessment. The minister gave us a brief outline of a home study. Do you have something that you could give us that would outline what a pre-placement assessment is?

Hon. J. MacPhail: To reiterate, we're talking about a direct placement, where the birth parent places directly. It will be made of the prospective adoptive parents. It's a little less formal, but it will include a criminal and personal reference check. Because it's a direct placement it won't be quite as comprehensive as the home study, due to the nature of the direct placement and the time constraints.

R. Neufeld: I appreciate that. I realize what a direct placement is. So a pre-placement assessment is going to deal very narrowly with a criminal record search and that's about it. Is that what I understand?

Hon. J. MacPhail: It's like an initial glance at suitability, to make sure that that's in the best interests of the child. A fuller assessment is completed in preparation for the post-placement report that occurs before you go to court to finalize.

R. Neufeld: What authority does the superintendent have if, on a quick look, he or she does not feel comfortable with what he or she sees?

Hon. J. MacPhail: We would make that assessment available to the birth parent to assist her in deciding whether she wishes to proceed. Also, that kind of information will be included in the post-placement report, prior to.... It will be put into the court for the court's final determinations.

[7:30]

J. Tyabji: I have just a quick one on subsection (1). Perhaps this is my lack of familiarity with the process. This says: "As soon as possible before a direct placement, the prospective adoptive parents must notify the superintendent or an adoption agency...of their intent to receive a child in their home for adoption." Why wouldn't the superintendent already have known of this from the birth parent? Isn't that already covered by the act?

Hon. J. MacPhail: Actually, that's just the point. If this act were not implemented, we wouldn't know about it. But it would be.... This is the first notification.

Interjection.

Hon. J. MacPhail: By the adoptive parents, yes.

J. Tyabji: Then, if one is a birth parent who is thinking about giving a child up for adoption, I assume that under this "Before a direct placement" section, if they didn't have prospective adoptive parents to deal with, they could come straight to the superintendent or adoptive agency. In which case, if they went to an adoption agency, at what point does the adoption agency notify the superintendent -- only when prospective parents have been found?

Hon. J. MacPhail: Okay, let me just try to clarify. This is where it's a direct placement. No agency is involved. I think the hon. member understands that. Therefore it's up to the adoptive parent to inform us. That's the first notification.

If a birth parent were going to the adoption agency, it's an inclusive.... We're not involved. The adoption agency takes care of everything. Then the adoption is completed in the courts.

Section 8 as amended approved.

Section 9 approved.

section 10.

J. Tyabji:

Section 10 -- yes, that's what I'd like to talk about.

Interjections.

The Chair: They're popping up so quickly here, the Chair is having a tough time.

J. Tyabji: To what extent will a birth fathers' registry be a continuation of something already in existence? Will there be more regulations if there's nothing in existence?

Interjection.

J. Tyabji: There's nothing in existence? I had never heard of it before. Is this the only

section that actually creates a birth fathers' registry? Is there somewhere else in the bill that we can get to later on that will be much more specific? I couldn't find anything more specific than this section.

Hon. J. MacPhail: It does say it's "in accordance with the regulations," so it will be established under regulations. But if you've got questions, let's hear.

[ Page 16368 ]

J. Tyabji: It appears to me that this birth fathers' registry says: "A birth father may...register...to receive notice...." I'm assuming, then, that we've got a birth mother who has already communicated to the birth father that she is considering giving the child up for adoption. The birth father then can register on a birth fathers' registry to receive notice. The birth father would be contacted, in the case of a direct placement, at some point after the superintendent had been contacted by the prospective adoptive parents. Is that correct?

Hon. J. MacPhail: This registry, which is the first of its kind -- and it's great news for kids and actually great news for men, too -- is for all adoptions, regardless of how the child is going to be placed. If a man believes that he is the father of a child, he will be able to register his name with the ministry in order to receive notice of a proposed adoption of the child. That will give the birth father the opportunity to become involved in the planning very early in the process and therefore really reduce the risk of a custody application later in the placement process -- or perhaps after the placement, as well.

J. Tyabji: Going back to the last question that I had, in the previous

section that we discussed, we talked about the adoptive parents in a direct placement. The prospective adoptive parents will notify the superintendent prior to a direct placement. So if you are a father who is on that registry, and if the birth mother or the prospective adoptive parents haven't communicated with you directly, I would assume that it would follow that your first notification of the prospective adoptive parents being all ready to receive your child would be after the superintendent finds out.

Hon. J. MacPhail: That may be. One of the requirements will be that the lawyer has to search the registry before placement.

J. Tyabji: Is this registry held in the office of the superintendent?

Hon. J. MacPhail: Yes.

J. Tyabji: The minister said yes. Okay. Why was there no provision for automatic registration? I just wonder why it wouldn't have come out in language that would say that with any prospective adoptee, a birth father would be registered wherever possible. The reason I ask that is that in the event of an adoption taking place and no birth father registering, are those records automatically covered in another

section if the child comes back later for that information? If the mother might not be sure who the father is, at what point do we make reasonable efforts to ensure that when the child comes back for those records, there's something there about the birth father?

Hon. J. MacPhail: This has nothing to do with the birth registration; that's separate and apart. That's information that would be sought later. Really, I would be the last person to say that a father has to register or that a birth mother has to register the father. This is a voluntary process.

J. Tyabji: A last question on this, then. So the onus is placed on the birth father. This is not the birth registry; this is just about the father's legal rights and having a provision for notice of the father. Will there be any provision in the regulations for the birth mother having to provide some notice to the birth father ahead of time, or is that going to rest with the superintendent if the father happens to register on the birth registry? That's one.

I guess the second part of that question would be: what happens if the birth father doesn't know that he has the right to register, so he doesn't register, and then later on he finds out that his child has been sent for adoption without his notice? Don't we end up with the same problems that we had before?

Hon. J. MacPhail: There are two ways for the father to access his rights. One is through this registry. It really is the obligation of the father to do this. I think it was the hon. member for Peace River North who said that he hopes that a lot participate in this. Or if the birth mother names the father, then that....

Interjection.

Hon. J. MacPhail: No, she names the father, and then that becomes the information of the superintendent, and the superintendent puts it on the birth registry, etc.

R. Neufeld: I do agree with the birth fathers' registry. I think it is a move in the right direction.

I don't like to deal with hypothetical questions, but some enter in here. It's not unknown that there are birth fathers who do not know that they are fathers; they find out later on in life and start a custody hearing. We hear of those things happening in the U.S. on a regular basis. It seems as though this has been widespread, and they've actually taken children back from adoptive parents because the birth father did not agree to the adoption. I'm just wondering.... Although it's a good idea, if we open up the door, it may cause us a few more problems in the end. Or will it be such a small problem that we can probably get by?

Hon. J. MacPhail: Let me start by saying that birth registry is there to prevent exactly those kinds of problems. It's very innovative, and it's good news to prevent exactly those kinds problems. Let me just say that once the adoption order is.... There are all sorts of avenues here, but once the adoption....

Interjection.

Hon. J. MacPhail: No, I know. But how can the state interfere in that? The state can't interfere in too many things, and certainly the state would be.... I wouldn't want the state to interfere to the extent that the birth father's name has to be registered, by any means. That would be the only way to prevent that, and we are not going to do that. Once the final adoption order is made, that's it.

R. Neufeld: Just following on a little bit with subsection (2), it says: "Notice to a person registered on the birth fathers' registry is properly given if it is sent, in accordance with the regulations, to the address recorded in the registry." Later on in the act --

section 17, for instance, if you just want to turn to sub-subsection (1)(b) -- we talk about reasonable efforts being made. I just wonder if an address recorded in the registry.... Maybe the birth father moves, doesn't leave a forwarding address, and it just comes back. Would the minister be

amena-

[ Page 16369 ]

ble to putting in something about "reasonable," as we do in other parts of the act where we are talking about reasonably trying to do things? I'm not saying that we have to send out a private detective, but there should be some reasonable try.

Hon. J. MacPhail: The test is the test of reason within the context of the legal meaning of it. Really, I think this is probably hypothetical, because any father who is going to register on this registry.... It's the opportunity for us to advise him how to keep it current and how to participate fully. I actually think that, with the fathers who participate in this registry, we won't be facing that hypothetical situation.

R. Neufeld: I guess I'll get away from the hypothetical and go to the voters list. I used the most up-to-date voters list the province has to mail out questionnaires to people in my constituency. Out of 16,000 questionnaires that went out, 3,000 came back. This is what we are talking about in up-to-date.... That's what I'm trying to say: how easily it can happen. All I'm asking for is that "reasonable" be put in. We use "reasonable" in other areas of the bill, but here we are intent not to use it.

V. Anderson: A question that I think will come up from others here, and just to clarify the process.... The birth mother has decided to give the child up for adoption; the birth father has registered, so the notice of adoption is there. The birth father says: "Whoa, if she's going to give the child up for adoption, I want to be part of this." What's the process for the birth father who wants to contest the adoption against the birth mother at that point?

Hon. J. MacPhail: That's

section 93 of the bill, and it outlines how the regulations will be established for providing notice and participation.

J. Tyabji: I think everyone agrees that

section 10 is an excellent provision. I can't find.... I have some research somewhere, but I don't have it here. There was a case in Ireland -- the minister may be aware of it -- where a father was not notified before his child was put up for adoption, and he took the Irish government to court through the Hague and won. Not only was it a wrongful adoption, but he won compensation because the government had not notified him.

The member for Peace River North is talking about the fact that in

section 10, the onus is on the father. The state could actually be assisting in the adoption or agreeing to an adoption of a child where one of the parents doesn't even know the child exists, and that may end up with a wrongful adoption. I guess we go back to the question: why wouldn't there be a little bit stronger provision -- maybe it will come in by regulation -- that at some point the superintendent has to be sure that the father knows the child exists. Otherwise, how will the father know to register?

Hon. J. MacPhail: I apologize if I sound short on this. This is groundbreaking. This

section is to prevent those kinds of....

Interjection.

Hon. J. MacPhail: This is why these situations won't occur: because of this birth registry, for the very first time.... The obligation is on the birth parents to keep the registry current, just as when you move it is your obligation to get your licence changed. The obligation is on you to update the records, etc. This process will work in keeping the birth father informed. But if he doesn't know.... This is exactly what this is all about. It is for the father to take on his rights, as a parent, to participate through registering.

[7:45]

Section 10 approved.

section 11.

J. Tyabji: Once again, we get back to the same question as before. If the minister sounds short, I can understand that she's frustrated, because she's making a provision -- finally -- for a birth fathers' registry, and she should be congratulated for that. We are saying that if the father doesn't know the child exists, he wouldn't know that he has that right.

Interjection.

The Chair: Through the Chair, hon. member -- all debate through the Chair.

J. Tyabji: If someone has rights that are enshrined in law, they should at least know if those rights are applicable. If I were a man and there might be a child out there that I may have fathered, I'd want to have some provision to know before the child is given up for adoption; I'd like to at least be notified. Then I would register and take whatever action is necessary. If I don't know the child is there, how will I know I have any rights? That's the only point we're raising.

Although this registry will prevent many of the cases the minister has referred to, in the case that I referred to in Ireland where a precedent was set in the Hague for a father to sue because he didn't know the child existed.... There are those precedents in international law that the government will be held liable for in not making those provisions the law.

Section 11 says: "...the court may dispense with notice of proposed adoption to a birth father if it is satisfied (

a) that it is in the child's best interests to do so, or (

b) that the circumstances justify dispensing with the notice." There's no reference here to a father who is registered on the birth registry. In this

section are we to assume that unless it's in the best interests of the child not to do so, or the circumstances justify dispensing with the notice -- and I don't know what that means -- that the birth father named by the birth mother would be notified of a proposed adoption, even if he's not on the registry and that may be the first time he's aware that there is a child?

Hon. J. MacPhail: This subsection provides the ministry or an adoption agency representing the birth mother to apply to the court for an order dispensing with notice to the birth father. The action would be taken in circumstances such as sexual assault or where there is a history of abuse or violence, when providing notice of the proposed adoption to the birth father may be inappropriate or puts the birth mother at risk. It also provides for the ability to plan in a timely fashion for a child if a birth father cannot be located. It provides a balance of rights of birth fathers to be given notice of a proposed

[ Page 16370 ]

adoption so that they have the opportunity to assert their interests in planning for a child if they so desire, and the rights and interests of the birth mother to ensure that the best interests of her child are met and that her own safety and well-being is protected.

Section 11 approved.

section 12.

V. Anderson: I just want to clarify.... One of the concerns we have is to make sure that the interests of the child are protected. When an adoption goes through the adoption system, we are assuming that all the legal things have been taken into account. If a child is adopted by a relative, are we assuming that it's the responsibility of the court to make sure that the interests of the child are protected by the court order rather than the system of the ministry?

Hon. J. MacPhail: Yes.

Section 12 approved.

section 13.

J. Tyabji:

Section 13(1)(

c) says: "the father." Is that supposed to be the birth father? That's the first time I've seen it appear as "the father" instead of "the birth father." It says "the birth mother" just above that. If so, perhaps we would want to amend that just so it's consistent with the rest of the bill.

Hon. J. MacPhail:

Section 13(2) in that same clause defines "father" further, so you can just....

Interjection.

Hon. J. MacPhail: The hon. member asks why I didn't put it into subsection (1). Well, it's broadening what a father could be. It's only specific to

section 13. I think it goes quite a way towards taking care of the concerns expressed throughout this debate around the interests of the father. You see, it actually requires the consent of the father, rather than having paternity imposed upon him. It lists exactly what the definition of a father is. I mean, proving motherhood is straightforward; it's less so for fatherhood.

V. Anderson: I'm curious to know.... Perhaps it's covered some other place that I haven't been able to find, but if the birth mother and the birth father disagree -- one says yes and the other says no -- how is that resolved between the two of them? Which of the two would stand, or does it mean that the child cannot be adopted because they...? According to this, they both have to agree. Is there a clause someplace that overrides that?

Hon. J. MacPhail: There could possibly be two avenues: one is the course determining whether to dispense with consent of one or the other, or it's a custody battle.

R. Neufeld: Point of order. I noticed the minister wanted to tighten up the procedure and get moving with this. I would suggest that we need a quorum in the House, so I ask for a quorum to be called.

The bells were ordered to be rung.

The Chair: We can call the committee back to order; we have a quorum.

J. Tyabji: With respect to the definition of "father" in

section 13, am I correct in thinking that there could be more than one person notified under this?

Hon. J. MacPhail: It could be possible.

J. Tyabji: Is it mandatory that someone will at least be named as a father under this section, or would it be possible to adopt a child without someone actually being listed as a father?

Hon. J. MacPhail: It is possible if the mom doesn't name someone or if there's no registry, yes.

Sections 13 and 14 approved.

section 15.

J. Tyabji: I'm a little concerned about

section 15, "Birth parents under 19 years of age," where it says: "A person under 19 years of age may give a legally valid consent to the adoption of a child." I'm not sure if that's new; I'm not sure how that correlates with other acts. I do know that in the Child, Family and Community Service Act, if I'm not mistaken, a person between the ages of 12 to 19 is still deemed to be someone who is in the care of the state, if they are in need of protection from their home environment. So given that there are other statutes that recognize that the ages of 12 to 19 are potentially still under the age of majority, why is

section 15 in here? That's the first part of the question. The second is: why is there no provision for counselling or some method of expanding the circle, so that even though the person under 19 may make that decision, there may be somebody else who would be talking to her?

Hon. J. MacPhail: I will deal with the second question first. Counselling is a requirement of all adoptions, so that is taken care of.

This provision is more definitive than the provision in the current Adoption Act. It's consistent with the legislation in other Canadian jurisdictions and with

section 16 of the Infants Act, which permits a mature minor to consent to health care. It reflects the current social reality as well.

J. Tyabji: Then that is unfortunate.

The question I was leading to is: if it turns out that the person who is under 19 is in the care of the state because they fall under the Child, Family and Community Service Act, to what extent would that person be able to keep the child, be counselled to give the child up for adoption, or have his or her legal guardians and parents -- who do not currently have care of the child, because the child is in the care of the state -- give some input into this decision?

Hon. J. MacPhail: Nothing changes, actually, if they are in the care of the state. They get the full range of counselling and the guidance of their guardians and support system. But just to make it clear: when a person is in the care of the state, the guardian is the...

[ Page 16371 ]

An Hon. Member: ...state.

Hon. J. MacPhail: Yeah.

J. Tyabji: I just want to register on the record that I have a bit of a concern. If it turns out that a teenager has been troubled, runs away from home and ends up in the guardianship of the state, but she has parents who would really like to be involved with her upbringing -- maybe she ran away because she was pregnant.... She is in the care of the state; she's in that 12- to 19-year-old age group where she can be taken into care; there could be an investigation going on with her parents, or whatever -- which by statute is required by the Ministry of Social Services....

There should be some provision in here for the parents to have some formal role in addition to the counselling. She may not have direct contact with her parents, because she's in the care of the state, and she's still.... She could be 15 years old, and she could be making a decision that will affect her family -- including her parents, who would be the grandparents of the child -- for the rest of their collective lives.

Sections 15 to 18 inclusive approved.

section 19.

L. Stephens: I have some questions around

section 19(1). During the briefing with the minister's staff, we discussed the issue around this. I would like to know whether or not the minister anticipates making some changes to this section, specifically that the 30 days of a birth mother's revocation begin after she has signed the consent, as opposed to at the child's birth. It seems to me that this is a very difficult time, and 30 days from the time of birth to the consent ending really isn't long enough. Would the minister comment on whether or not she feels that that is something she might like to revisit at some time?

Hon. J. MacPhail: The hon. member made an excellent presentation during the earlier briefing that my staff provided. Let me assure her that we will monitor this very carefully in the context of her points. Certainly we'll look further into it. There may be an opportunity, as the act is implemented, for further modifications, but at this stage, no. Certainly it's something that we're going to monitor very carefully as we implement the act -- yes.

V. Anderson: I'm still debating whether to put an amendment in on this. We did discuss it but still haven't got a satisfactory answer to it. The mother cannot put her child up for adoption until the child is ten days old. Then there's 20 days beyond that to revoke that. But if a mother decides not to put her child up for adoption until the child is six weeks old, then there's nothing in the act that enables her to revoke that within 20 or 30 days.

So I would like to put in an amendment to that effect, which says: "

(1) A birth mother may revoke her consent to adoption within 20 days from the time of consent...."

So if the mother decides after the child is two months old to put it up for adoption, then she has 20 days to revoke that consent. The present act says that after 30 days she cannot revoke the consent. It doesn't deal with the issue that we are trying.... So I'd like to move this amendment.

[8:00]

On the amendment.

Hon. J. MacPhail: Certainly I understand the point that you're trying to make here. There is provision under

section 18 to revoke consent; that is already there. But also, just moving on to some other points that need to be considered.... Certainly we're not insensitive to the direction that the Liberal members are taking, but there are other issues to consider here as the act unfolds.

One is that moving a child over one month of age can have a serious negative impact on the child. The older the child is, the greater the impact on the child. Of course, I know everybody knows that. Both actions are contrary to the best interests of the child, as identified in terms of continuity and a secure place.

What happens to the child if the birth father or another person had custody prior to consent? Does the child return to the birth mother, who may or may not have a relationship with or experience in caring for the child?

Your point is well taken. We will factor it in and consider it, as we also have to answer all the other questions that may flow from that amendment.

Amendment negatived.

Sections 19 to 22 inclusive approved.

section 23.

V. Anderson: On transferring care to the adoption agency, I would just like a little clarification. I understand that care is given when a child becomes in effect the guardian of the child. But are we suggesting here that in putting the child with an adoption agency, the child in effect comes under the care of the adoption agency as of guardian? How is that feasible, for an adoption agency to take that care in the same way that we think of the care that comes under the government? In some cases that would also involve trusteeship. I'm just curious about how all that works out.

Hon. J. MacPhail: Actually, this provision is designed to facilitate the placement of a newborn directly with adoptive parents, although the birth mother is not able to give a valid consent, which would transfer guardianship, until the child is ten days old. It allows the care and custody of the newborn child to be transferred to the superintendent or the licensed adoption agency in that period following the birth of the child and before the mother can legally consent to adoption -- the ten-day period.

Infants are often ready for discharge from hospital soon after birth. In fact, in our Closer to Home policy, it's almost immediately after giving birth. Birth mothers who have firm plans to place their child for adoption and have chosen a family, may want to have the infant placed directly with the adoptive family so that bonding can take place as soon as possible. This

section actually allows the placement to occur but still allows for the period of consent not to be limited in any way for the birth mom. If it's through the agency and not the superintendent, the agency must be able to provide care in order to be licensed.

[ Page 16372 ]

V. Anderson: Does that mean that the agency has the kind of insurance and coverage for liabilities and all the other items that we assume the government would have? What kind of standards...? Are agencies aware that they will need insurance and coverage for liabilities during this time of care?

Hon. J. MacPhail: All of this will be in regulations, and there's going to be a good consultation process that.... For instance, the Board of Registration for Social Workers has clear guidelines on this; there are other jurisdictions to which we can turn. But all of that will be part of the regulations and part of the licensing requirement as well.

Sections 23 to 26 inclusive approved.

section 27.

V. Anderson: Under

section 27(2) it says: "A person having care and custody of a child under this Act may consent to the child's participation in school, social or recreational activities." Under "social" are we including religious activities? Because it's important for that opportunity to be carried on for children who have a religious background. Or do we have to make an amendment in order to put that in? Freedom of religion is.... I just want to make sure that religious activities are included in that possibility.

Hon. J. MacPhail: Let me just take that from another point. Yes, that's included in the concept. What we're trying to deal with here is.... On a school trip, you need consent -- formal, legal consent -- in order to participate; the person has the right to give that consent. But certainly religious activity is not excluded.

V. Anderson: Thank you. I appreciate that, because I know of circumstances where that has been a problem. I think it's important to have it on the record.

Section 27 approved.

section 28.

V. Anderson: In

section 28, "Joint guardianship in direct placement adoptions...." Could you explain what this means so that we understand it clearly?

Hon. J. MacPhail: Actually, the same principle applies here as the one we had previously in

section 23. It's for the interim period, to ensure the continuing guardianship of the child until the adoption order is granted. It's the same principle of a period up until the order.

Section 28 approved.

V. Anderson: Maybe we can go back to

section 5 and take it off the table, please.

The Chair: Would the pleasure of the committee be to debate sections 5 and 29 together and call separate votes, or are we doing the...?

Interjections.

The Chair: We'll vote separately on the sections; they can be debated together.

On sections 5 and 29.

R. Neufeld: I'd like the minister to explain 5(1) for me: "A child may be placed for adoption with one adult" -- I can quite well understand that -- "or 2 adults jointly." Would the minster please explain to me what that would encompass?

Hon. J. MacPhail: The new Adoption Act allows a single adult or any two adults jointly to apply to adopt a child. This will allow common-law and same-sex couples to apply to adopt a child. The provisions in the new act regarding eligibility to adopt are consistent with the Charter of Rights and Freedoms, which provides that everyone is equal before or under the law and has rights to equal protection and benefits of the law without discrimination. A recent Supreme Court of Canada decision found that discrimination on the basis of sexual orientation is prohibited under

section 15 of the Canadian Charter of Rights and Freedoms.

It must be emphasized that this provision only affects an individual's eligibility to apply to adopt -- to put their name on a list. There are a number of checks and balances to ensure that a child is only adopted where the adoption will meet the best interests of the child as ultimately determined by the court. In second reading the premise was put forward that somehow the Charter of Rights and Freedoms exceeded the best interests of the child. This is simply not accurate. It is the courts that will determine the best interests of the child, which is paramount throughout the legislation.

All prospective adoptive adults with whom a child is placed by the superintendent or a licensed adoption agency are subject to an assessment through a detailed home study process before a child may be placed with them for adoption. The assessment includes an evaluation of the adoptive applicant's parental capabilities and a criminal record and personal reference check. In the case of a direct placement, a basic assessment of the prospective adoptive parents will be undertaken by the superintendent or a licensed adoption agency, including a criminal record and personal reference check.

This information will be shared with the birth parents, with the consent of the prospective adoptive parents. Actually, we've amended that: the information will be shared with the birth parents -- period. In most cases, the birth parent will personally choose the prospective adoptive parents.

The provision will also allow the unmarried partner in a relationship to adopt the biological child of his or her partner, as in step-parent adoptions. It is likely that most adoptions by unmarried partners will be of this type. The court will only grant an adoption order if it is in the best interests of the child.

The new act spells out for the court exactly what best interests mean, including: the child's safety, the child's physical and emotional needs and level of development, the importance of continuity in the child's care, the importance to the child's development of having a positive relationship with a parent and a secure place as a member of the family, the quality of the relationship the child has with the birth parent or other individuals and the effect of maintaining that relationship, the child's cultural, racial, linguistic and religious heritage, the child's views, and the effect on the child if there is a delay in making a decision.

R. Neufeld: I have one more question for the minister. On same-sex adoptions, were there any professional polls of

[ Page 16373 ]

British Columbians taken by the government, other than the member for Comox Valley going around the province, who I will say performed very well and did a good job? Were there any professional polls taken around the province as to acceptance of same-sex adoptions?

Hon. J. MacPhail: The provincial government has done no polling regarding same-sex adoptions. Angus Reid-Southam News conducted a national poll from May 24, 1995, to May 30, 1995, which indicated that 42 percent of the 1,500 people surveyed said that same-sex couples should be allowed to adopt -- that was nationally. In B.C., opinion was equally split between approval and disapproval. The same Angus Reid-Southam News poll reported that B.C. residents approved of the Ontario court decision supporting gay adoption rights.

The national adoption study prepared by Daly and Sobol recommended that the opportunity to adopt should be extended to single and unmarried individuals regardless of sexual orientation. The position of the Child Welfare League of America is that applicants for adoption should be selected to be parents on the basis of their capacity to understand, accept and meet the needs of a particular child in need of parents. Sexual preference should not be the criterion on which the suitability of an adoptive applicant is based.

I understand that the hon. member has been provided with detailed study as recently as a month ago on this very issue.

Research up to this point is very consistent, and has generally found that children are not compromised in any way by having gay and lesbian parents instead of heterosexual parents. There is no evidence to suggest that gay men or lesbians are more likely to molest children than heterosexual men or women. In fact, the significant majority of sex crimes perpetrated by adults on children are by heterosexual men.

[8:15]

V. Anderson: I would assume that.... I'm thinking particularly of the 2,000 children we talked about earlier, who are looking for adoptive parents and for whom adoptive parents are not available at the moment within our own province, much less other places in Canada and around the world. The number is unlimited.

It's my understanding, and I want to clarify, that two heterosexual ladies would be able to apply to adopt and that two heterosexual men would be able to apply to adopt.

Interjection.

V. Anderson: Someone asks: "Why would they do that?" Because they have a concern that there are 2,000 children who do not have adoptive parents. They are willing to care for and devote themselves to children who have a physical, mental or medical need, and they have the time and the resources to do that.

I also understand there is no age limit regarding suitability, and there are some persons who may be in their middle years who would be prepared to adopt a youngster who is 15 years of age. This would enable them -- two heterosexual males or females -- to adopt. What I'm trying to get at is that this wording allows an availability of persons who are allowed to adopt that is far greater than what we have had in the past, and there's a significant need for these options.

So from that point of view, these older or handicapped children have the opportunity to go into family relationships. I'm convinced in my own mind that if this opportunity is available, these kinds of persons will come forward. I know that in the past, single heterosexual men and women have adopted children in exactly these kinds of circumstances.

One of the difficulties of doing it as a single person was the responsibility of being single and also of caring for them. At the present time, we have single mothers who are living together in order to share the care of their children. That can go on for five, ten, 15 or 20 years. I'm sure a number of those single parents who have children and are living together would, with the opportunity, adopt both sets of children and create a double-parent relationship with greater financial stability than they would have otherwise.

So it seems to me the opportunities that are brought by this far outweigh any difficulties that we might see in some circumstances. I'm perfectly aware that adoption only takes place, in any case, after a home study has been made, a placement study has been made and the court has heard all of the relevant documents showing that this is in the best interests of the child.

I stand for this because of the expanded opportunities. I'm really concerned that those 2,000 children out there have opportunities for adoptive parents, adults who will support and care for them and give them legal viability and a loving home that is much more permanent than a foster home will ever give them. I am convinced that many foster parents who are now fostering children on a long-term basis would move very rapidly to apply for adoption. In fact, I know many that have already tried to do that, and there have been impediments in their way. So I think that this has a whole host of possibilities and should be affirmed in that regard.

Hon. J. MacPhail: Yes, the hon. member's

interpretation of this is exactly accurate; it is a

section to celebrate. All sorts of opportunities will open up here for people to adopt. There would be every reason why two aunts would adopt an orphaned or abandoned niece -- absolutely. There would be all sorts of opportunities for grandparents, finally, to be able to adopt.

[L. Krog in the chair.]

I just want to clarify that there is an age limitation. You have to be an adult in order to adopt, but beyond that -- the age of majority is 19 -- the barriers to adoption have been removed. This is a celebratory time for the 2,000 children who are in our care, but it's also.... Any time a society can open up the available number of homes that are loving, caring, safe, secure and long-term is.... Who could object?

Who could possibly object, with all of the safeguards in place in this act, and certainly with our strengthening of the act with the amendments we just made, where the birth parents will have all of the information available? It's mandatory to share the information, and the decisions will always be made in the best interests of the child by those who have the best interests of the child at heart.

K. Jones: Could the minister tell us...? I've heard her referring to these 2,000 children who are awaiting adoption. Most of them have great difficulties and for some reason are not acceptable under the normal adoption process that exists today. How many of these children would be adopted with

[ Page 16374 ]

these changes that this Adoption Act now presents? Just roughly how many does the minister feel would be taken up through this act, opening up the opportunity for these children to have homes? Really, how many of these new people, who are being added in to have the ability to adopt, would actually adopt one of these 2,000 young people?

Hon. J. MacPhail: That's a very prospective question. I can't possibly analyze it because, of course, they don't even have the ability to put their name on a list right now. But we can certainly keep track of that and monitor it very carefully as the new act is implemented.

K. Jones: My colleague says he figures that maybe a minimum of 10 percent, maybe 20 percent. What makes this a greater opportunity? Why would these new people be so different from the population that you're currently drawing from for adoption? Why would these people be looking for adoptive children who have disabilities any more than the rest of the current adoptive community?

Hon. J. MacPhail: As I say, you're asking me to predict. I'm sorry; I can't do that. But any time one widens the circle of people eligible to adopt, it's only in the best interests of the children.

K. Jones: Could the minister tell us: by widening the circle, how many new potential adoptive persons or parents are ultimately going to result from this?

Hon. J. MacPhail: I can't predict. We've removed all barriers to eligibility to adopt, but I can't predict what that would possibly mean. I do know that I have received overwhelming interest in the changes to this legislation, and many, many thanks as well.

K. Jones: Perhaps the minister would find it easier to just tell us how many persons currently -- before this legislation is brought in -- are available to become adoptive parents. How many people are potentially able to be qualified under this present legislation?

Hon. J. MacPhail: Well, right now you have to be a married couple or a single person. I could try to get the vital stats or the StatsCan stats on that for you. Then it would be everybody else that would be added to the list.

R. Neufeld: I have resisted to this point to put on the record what was in the previous act, and that was that an adult single person has always been able to adopt. "Power to adopt child,"

section 3(1), says: "An adult person, or an adult husband and his adult wife together, may apply to adopt a child under the provisions of this Act." Further, it's in policy that was taken forward by the ministry before this government came into place. When the minister says "only married couples," I'm sorry. Unless the information she sent me is incorrect.... She said only married couples could. I want to read it out: "Applicants for a child with special needs may be married, single or living together in a stable common-law" -- common-law -- "relationship as husband and wife...." That is for infants over two.

So this has been in place for a long time. When we talk about all of a sudden having.... It's unfortunate that we have 2,000 children in this province who are not adopted out, I agree. There are reasons for it. But for us to stand here and say that all of a sudden we are opening up the ability to have a good part or all of these children adopted out is wrong.

An Hon. Member: Misleading.

R. Neufeld: It's misleading. It's not correct.

We also must remember that 2,000 of those children, if we use the 30 percent figure that the minister gave us, are children in care who are aboriginal and whom there is a moratorium on.

So there's no doubt about it. I'm not going to dispute the fact that some may be adopted out. But to go on the premise that all of a sudden this is going to solve all the ills of the adoption world is pushing it just one step too far.

Hon. J. MacPhail: I just want to make a point here. The hon. member is interpreting policy incorrectly. It is true that in a common-law relationship one person could adopt in that common-law relationship. The child would be left adopted to one partner in the common-law relationship, as a single. So he is incorrect to say that the couple could adopt.

R. Neufeld: I guess that, all of a sudden, we're debating legislation policy that is in place. I did read into the record, and I'll read again.... This is for a child with special needs. A child with special needs is defined in policy. I read verbatim: "Applicants for a child with special needs may be married, single, or living together in a stable common-law relationship as husband and wife, and must...." That tells me that a common-law relationship, which all of us accept, is a male and a female -- a man and wife. That's in the record; that's in the policy now. I understand it quite well.

Hon. J. MacPhail: My goodness, you're stubborn in refusing to understand what actually goes on! Before the court order can be made, the couple must get married. Married couples are currently the only ones who can adopt -- jointly.

L. Fox: I just want to put on record.... The minister read out some statistics a few moments ago from a national poll to show that there is indeed a split, almost an even split, in terms of acceptability of same-sex couples adopting. For the record, and for the benefit of this Legislature, I want to share with the Legislature the statistics from my riding. While I personally have very strong feelings opposing same-sex-couple adoptions, I would feel obligated to represent my constituents if their wishes were different.

But to a recent question of whether or not same-sex couples should have the opportunity to adopt children, over 800 people in my riding answered; 26 said yes, 689 said no, and 60 had no opinion. It is very clear that my riding opposes this particular

section of the legislation, and I just want to put that on the record so there is some understanding as to why, when a vote is called, I will be voting against it.

[8:30]

Section 5 of Bill 51 approved on the following division:

[ Page 16375 ]

YEAS -- 37

Dosanjh

Marzari

Pement

Edwards

Zirnhelt

Charbonneau

O'Neill

Perry

B. Jones

Giesbrecht

Miller

Gabelmann

Clark

MacPhail

Barlee

Sihota

Evans

Randall

Conroy

Doyle

Janssen

Lord

Streifel

Jackson

Tyabji

Stephens

Farrell-Collins

Reid

Jarvis

Anderson

Symons

Boone

Hartley

Lali

Schreck

Copping

Brewin

NAYS -- 8

Mitchell

Serwa

Hanson

Hurd

K. Jones

Fox

Neufeld

Chisholm

Section 29 of Bill 51 approved on the following division:

YEAS -- 37

Dosanjh

Marzari

Pement

Edwards

Zirnhelt

Charbonneau

O'Neill

Perry

B. Jones

Giesbrecht

Miller

Gabelmann

Clark

MacPhail

Barlee

Sihota

Evans

Randall

Conroy

Doyle

Janssen

Lord

Streifel

Jackson

Tyabji

Stephens

Farrell-Collins

Reid

Jarvis

Anderson

Symons

Boone

Hartley

Lali

Schreck

Copping

Brewin

NAYS -- 9

Dalton

Hurd

Hanson

Serwa

Mitchell

Chisholm

Neufeld

Fox

K. Jones

section 30.

J. Tyabji: Before we held those votes I had leave from the minister to raise a few things on

section 29. I just want to speak very briefly to that. There are many people who are monitoring the debate, and I want to put on the record that although many comments have been made on

section 5 and

section 29, both represent dramatic improvements to the act. Here again we have, I think, an improvement that is better than the Family Relations Act -- we have the Attorney General here -- and I said that under

section 3.

On this, I'd just like to put on the record that my comments on second reading stand with respect to

section 29 and

section 5. Provided the best interests of the child are paramount, these sections are excellent sections. I look forward to seeing how they are going to be implemented with respect to adoption.

Section 30 approved.

section 31.

J. Tyabji: I'm sorry, hon. Chair. I thought we were finishing off discussion of

section 29 before going to

section 30. And I just have a quick question under

section 30.

Interjection.

J. Tyabji: Yes, I seem to be running a

section behind.

If the minister doesn't mind, I'll ask a quick question under

section 30. Again, when we talked earlier tonight we were talking about....

The Chair: Hon. member, would you please take your seat. The Chair recognizes the member for Vancouver-Langara on a point of order.

V. Anderson: I haven't heard the discussion. I'm wondering if we could.... We go from the fact that we have no government members here to the fact that we have a noisy bunch, and it would be helpful if we could hear the discussion.

The Chair: Well, thank you, hon. member. I'm sure that all members will take heed of your words.

[8:45]

J. Tyabji: I guess that's the irony of calling a quorum earlier. They're all hanging around now making noise, especially the member for Mission-Kent.

Earlier we talked about the child's views and the discretion of the superintendent. Here again, will it be the discretion of the superintendent that will decide how the child's views will be represented if the child is between seven and 12?

Hon. J. MacPhail: A person will be assigned and authorized to seek the younger child's view in a fashion that is then recorded.

J. Tyabji: What qualifications will the person assigned to the child have? What kind of dialogue will they be developing? Will the person interviewing the child be a counsellor and be making recommendations?

Hon. J. MacPhail: Yes, in fact that will probably be what will happen in the regulations. It will be after consultation, but it will be along those lines.

J. Tyabji: Obviously the next year of discussions on the regulations is going to have a lot of impact on this section. In addition to that, it says that a written report must be made. Would this written report then be given to the superintendent for determination of the best interests of the child, or is it sent to court?

Interjection.

J. Tyabji: The minister is saying "to court."

section 31.

V. Anderson: In these areas when we're talking about the children, I'm sure somebody is going to ask the question: if

[ Page 16376 ]

there is a feeling the children's interests aren't being listened to, is this a place where the child advocate can come in, if invited, to speak on behalf of a child?

Hon. J. MacPhail: So far, the child advocate does not have responsibility for the Adoption Act, but I fully expect that to occur. I don't want to predict the will of the Legislature; but if that does occur that would be exactly the case.

Sections 31 to 35 inclusive approved.

section 36.

J. Tyabji: When we're talking about changing the name of the child, wouldn't it automatically be one of the provisions under the adoption order that there would be a change of name? Or is this being given for children who are older, and that's why it's in here? If so, the child's consent has to be achieved before the courts. Is the child testifying, or is someone providing evidence on behalf of the child?

Hon. J. MacPhail: I want to clarify that. Sometimes we face situations where an older child has attempted to change their first name as well. It's to protect against something being imposed on the child against their will in that kind of situation. But it will be consent, and the court will determine.... There are various methods of giving consent -- the child can appear, write a statement or whatever. But consent has to be proven in the courts.

Section 36 approved.

section 37.

V. Anderson: Under subsection 37(6), perhaps the minister might elaborate so that it's clear: "An adoption order does not affect an interest in property or a right of the adopted child that vested in the child before the date of that adoption order." Most of this indicates that what happened previously is no longer relevant, because you're in a new family and a new situation. But there is an exception here which makes it different, and I think that should be clarified so we understand what it is.

Hon. J. MacPhail: This is just to protect.... If a child has a trust or something vested in him or her in terms of real property or whatever, that interest continues; that remains unchanged by the adoption.

J. Tyabji: Could the minister clarify subsection (4), which talks about the laws relating to incest and the prohibited degrees of marriage? I'm not familiar with that language.

Hon. J. MacPhail: I'm actually just repeating what I was just told: there are degrees of consanguinity in which you're not allowed to marry, like family relationships. You're not allowed to marry your brother, for instance. It's against the law.

Interjection.

Hon. J. MacPhail: That's right. That relationship, that effect, continues after adoption as well.

J. Tyabji: I'm still not clear on this. When they talk about the laws relating to incest and the prohibited degrees of marriage, are they saying that once the adoption is completed, all of those laws will now apply to this family unit as if it's a family unit? So you couldn't have an adopted child marrying a sibling who has become a sibling through adoption. Is that what we're talking about? Or are we talking about people who should never pass a home study anyway? I'm just assuming.

Hon. J. MacPhail: Sorry, you had a right to not understand. There are laws relating to incest and prohibited degrees of marriage which are on blood relations and, therefore, prohibition of mixing blood relations in marriage. What this says is that those laws don't apply if there's an adoptive relationship, but they would apply if there's a biological relationship but they're not listed as your brother or whatever.

Section 37 approved.

section 38.

J. Tyabji: What comes to mind under

section 38, I guess, is that we have a case with Ms. Amandah Sinclaire. In that case we have a child in the care of Social Services who actually has an access agreement that the grandmother carries. The foster parents may make an application to adopt that child. I don't see any provision in here that would say that an access agreement with an existing relative would have to stand or be taken into consideration. In this, it seems like it's pure discretion. In fact, if anything, it says that those access agreements would terminate if adoption takes place. The reason I'm standing up on this is that in the Child, Family and Community Service Act there was an attempt to ensure that....

Hon. J. MacPhail: It's just a point of order, hon. member. A person has been named, and therefore I will not comment under the laws of confidentiality.

J. Tyabji: I understand, actually, because that person may not be within the responsibilities of the ministry, but other people are. Okay, fair enough. Maybe I'll just ask a general question, then. In the child, family and community services debates we had last year, the minister went out of her way to ensure that any relative of a child in question.... Whether that child was in the care of the state or -- in this case, I would assume -- up for adoption, that relative's continued relationship with the child was one of the things that was under consideration.

What I don't see in here is any recognition that an existing access order could be with someone other than the parents who are signing the child away. Okay, so it could be someone else. A good example would be if the state is the one that has guardianship of a child; then the state has a legal right to put that child up for adoption. But there are also relatives.

In any of those cases, whether it's the state or someone else, whether through regulation or through this act, would the government's first inclination be to recognize the rights of the blood relatives of that child who do not have rights in giving the child up for adoption?

Hon. J. MacPhail: Yes, in general what you outlined is possible. Let me just give you an example. In a situation where a biological grandparent wants to continue to have relationship access, this is what that exact provision is for.

J. Tyabji: Perhaps the minister could give me some policy direction, then. Would the policy of Social Services for the

[ Page 16377 ]

purposes of adoption be consistent in this act with that of the Child, Family and Community Service Act, which is to encourage blood relatives?

Hon. J. MacPhail: Yes, clearly.

Sections 38 to 40 inclusive approved.

section 41.

J. Tyabji: I was just wondering why there's a provision for privacy under

section 41. If this goes before the courts, then usually court applications are in the public domain. Here there's a provision for privacy for a hearing with respect to adoption. Is this a court hearing, or is this a hearing before the superintendent?

Hon. J. MacPhail: It's a court hearing. It's just an option that could be made available to the court.

Sections 41 and 42 approved.

section 43.

J. Tyabji: Just quickly on

section 43, how does this correlate to what we will get to -- which will probably be a little more lengthy -- and that's the disclosure provisions of sections 61 on? I see that there's a provision.... "Confidentiality of court files." Are these files going to be any of the files referred to later on?

Hon. J. MacPhail: May I offer this? There's a distinction between court files and vital statistics files, which are dealt with later on.

Sections 43 to 46 inclusive approved.

section 47.

V. Anderson: This has to deal with adoptions outside British Columbia. It would be very useful if the minister would explain the process involved here. What is the effect of this on adoptions that take place outside British Columbia? Why would those adoptions, which take place and are confirmed outside the province, be listed in this particular act?

Hon. J. MacPhail: This is not dissimilar to the existing act. This says that all the tests that have to be met in British Columbia have to apply to adoptions done outside British Columbia as well.

V. Anderson: I'm not quite sure I understood what the minister said. If a couple were able to adopt in Alberta, British Columbia, Ontario or whatever, and if the adoption were finalized, then what is the reason for this being in here? My assumption would be that if it were finalized and legal in one of the other provinces of Canada, it would simply be accepted when you come into B.C. There wouldn't be any looking over the shoulder and saying that it's not acceptable.

[J. Doyle in the chair.]

Hon. J. MacPhail: You're right; this is a reciprocal agreement on laws if the laws are substantially the same. The flip side is that if the laws aren't the same, if they are shadier or much less based in the best interests of the child, then they don't apply. That's basically it. The exchange only applies where the laws meet the same test.

[9:00]

V. Anderson: That leaves it very uncertain. I could see where this might be true for jurisdictions outside Canada, where there's a wide variation. I'm not sure why this is true within Canada when we have been saying that we're all equal Canadians and we apply under Canadian laws. It seems to me that you're setting up a jurisdiction in British Columbia which overrides other provinces' jurisdictions. What I hear here is that if someone is living in Saskatchewan, and they adopt....

Interjection.

V. Anderson: That's what I want to clarify. If they adopt and move into British Columbia, from what you said earlier, someone could say: "Sorry, the Saskatchewan regulations aren't good enough; that adoption won't be recognized here." We have some cases already where this is happening with international adoptions, so I just want a little clarity on that.

Hon. J. MacPhail: As the hon. member knows, adoption law is provincial law. This provision is actually a carryover from the act under which we operate right now. All it's saying is.... And you're quite right: in other jurisdictions of Canada this is not an issue at all. It's just saying that the effect of a provincial law from another province has an equal effect in British Columbia. That's all this is saying.

V. Anderson: I can't help but comment that when we say that it is already in the existing law, that's not a very good argument, because it's the existing laws that we're rewriting and that we should change. There are a lot of other things in the existing laws that we're changing, so I think it still can be questioned.

Section 47 approved.

section 48.

V. Anderson: We're talking here about the scope of the Hague convention, and we shouldn't pass this without highlighting the implications of that. The minister might explain the implications that are new in the act. Prior to this, the Hague convention wasn't in effect, and the province wasn't involved in adoptions outside the country. So there's a whole new process, and I presume that new services will be established for this. I'm asking the minister what services and processes are established to deal with the Canadian office of international adoptions, and what connections are being established with overseas areas where it is possible to have adoptions from these other places.

Hon. J. MacPhail: Actually, this does not deal with the Hague convention. Sections 51 through 57 deal with the Hague convention, so maybe we could wait until then.

Section 48 approved.

section 49.

[ Page 16378 ]

V. Anderson: On sections 48 and 49, before a child who is not resident of the province can be brought into the province for adoption, the parents must obtain the approval of the superintendent of an adoption agency. So, in effect, the question that I raised earlier does apply. You cannot go outside the Hague convention without getting approval.

As I understand it, the minister is saying that residents of British Columbia who want to adopt from outside the province have first to get permission from the superintendent or an adoption agent in B.C. So 48(1) -- I think this is very crucial -- if I understand it correctly, says that a resident of British Columbia cannot adopt.... If you want to adopt, the only thing you can do, if you don't agree with the superintendent, is move outside the province. I want to clarify how rigid this is and the implications of it -- in 48(1). I think it's very crucial that we understand it.

Hon. J. MacPhail: Well, maybe I can deal with the whole range of sections 48 through 57, which deal first with non-Hague convention countries, then the Hague-convention countries. What this requires is that... Sections 48 and 49 deal with provinces or countries that haven't signed onto the Hague convention, but they do mirror the requirements of the Hague convention. So my words will apply to your question and about sections 50 through 57 -- the Hague-convention countries -- as well.

The intent is that in all cases the best interests of the child are served and that all parties to the adoption are provided with the basic protection, even if the child's state of origin has not ratified the convention. It requires that a person bringing a child into the province for adoption is subject to essentially the same basic examination as if the adoption were arranged entirely within the province, in order to ensure that common standards are applied to all adoptions in the province.

So the requirements for the best interests of the child and the placement process have to be followed for Hague-convention-country adoptions, non-Hague-convention-country adoptions and adoptions of children brought to the province from other parts of Canada.

Sections 48 to 50 inclusive approved.

section 51.

J. Tyabji: On

section 51, what definition will we be using for an "adult adoptee"? Generally speaking, when we're talking about adoption law, when we talk about the child we're including the child when the child has grown up, if the child was adopted while under the age of majority. Now, in this bill, I note that in the definition

section we've said specifically that a child is someone under the age of 19. But some of the jurisprudence in other jurisdictions shows that a child has rights that would in this bill accrue to a child but in other sections accrue to adult adoptees -- who, of course, were adopted when they were children. So, first of all, is there a definition that this minister will be using -- especially when we start to deal with the international conventions -- for those adult adoptees? What are we calling them in this section?

Hon. J. MacPhail: The definition is as it is on the face of it. An adult is an adult, and an adult adoptee is an adult adoptee who is no longer a child, and that's when they turn 19.

J. Tyabji: Did the minister, then, canvass that under this section? In international conventions, when they talk about the child's best interest, they are often speaking of people who are adults but they are talking about their interests as adopted children. The reason I'm asking this under this

section is that when we get into the disclosure section, I'm going to have to know what the minister has read into the international convention on that definition.

Hon. J. MacPhail: It's too hard to talk in generalities of conventions, so you'll have to name a convention specifically, please.

J. Tyabji: I'd like to read into the record something that I'm sure all of us have on the national adoption study, which has been provided to us by Parent Finders of Canada. It says:

"United Nations Convention on the Rights of the Child

article 7 and 8 state that, 'Every child has a right to his or her birth name and knowledge of who his or her parents are. If a child is deprived of his name, identity and family relations, signatory states have the responsibility to re-establish the same'."

Now, when we're talking about them.... The jurisprudence in the international arena is using that to say that a child.... We're talking about the person at the time the person was adopted, who was under the age of majority. Those rights will apply even if the person makes the application when the person is over the age of majority.

Hon. J. MacPhail: I think this discussion is appropriate under the disclosure sections.

V. Anderson:

Section 51(1) says: "The provisions of the Convention have the force of law in British Columbia as soon as the Convention comes into force in British Columbia." Can the minister indicate when the convention is to come into force in British Columbia? If we're being guided by that, why isn't it being brought into force now rather than a year from now, which would be the next opportunity to do it?

Hon. J. MacPhail: Canada signed the convention, but it can't come into effect in British Columbia until Canada takes the further step of ratifying the convention. The federal government has to do that.

V. Anderson: Is the minister saying that British Columbia has taken the step to ratify it for British Columbia? Is it only waiting for the final ratification because the provinces have ratified it? Has British Columbia taken its ratification and must it do so?

Hon. J. MacPhail: The process is that the province has to bring their legislation in line with the convention -- and that's what we're doing here -- which then enables the federal government to add to its ability to ratify it.

V. Anderson: I think I'd also highlight

section 51(3): "If the law of British Columbia conflicts with the Convention, the Convention prevails." I think that's very significant. Does that mean that you will make copies of the convention available to all persons who are interested in international adoption? Will copies of the convention be made as readily available as the

[ Page 16379 ]

Adoption Act is, because many people -- about half of our people -- are involved in international adoptions and others would like to be. I think it is important that the ministry make these available.

Hon. J. MacPhail: Actually, a copy of the convention will be attached to the act.

H. Lali: I request leave to make an introduction.

Leave granted.

H. Lali: I'd like to introduce three people in the House. First of all, I'd like to introduce a friend of mine, Tawney Sather. She is the fiancee of Mike Geoghegan, who is the ministerial assistant to the Minister of Small Business, Tourism and Culture. Joining Tawney are her parents, Ron and Janet Sather. Would the House please make them welcome.

Section 51 approved.

section 52.

V. Anderson: Could the minister explain the implication of: "The superintendent is the Central Authority for British Columbia for the purpose of the Convention"? Does that mean that private non-profit societies would also be working through the superintendent for international adoptions and that this would be the one channel for international adoptions?

[9:15]

Hon. J. MacPhail: Yes, you're correct.

Section 52 approved.

section 53.

V. Anderson: What is the meaning of a "body accredited in a contracting state" that "may act in British Columbia"? Under this section, what kind of body may act in British Columbia?

Hon. J. MacPhail: The equivalent of the authority of the superintendent that exists in British Columbia would be allowed to come in from another country or another jurisdiction.

Sections 53 and 54 approved.

section 55.

V. Anderson: Could you explain what is meant by the conversion of an adoption? I think that this conversion you are talking about is important.

Hon. J. MacPhail: Some jurisdictions allow birth parents to consent to a simple adoption. These adoptions differ from B.C. adoptions in that the child's birth parents do not relinquish all of their parental rights. The conversion of a simple adoption requires that at the time the birth parents signed the consents to the adoption they were aware that all their parental rights could be legally terminated in the country where the child and the adoptive family would be living.

Sections 55 to 62 inclusive approved.

section 63.

J. Tyabji: Is it the intent of

section 63 to ensure that an adopted person who is 19 or over will be able to have access to information relating to that person's adoption?

Hon. J. MacPhail: Yes.

J. Tyabji: What will be the limitations around an adult adoptee obtaining that information, if any?

Hon. J. MacPhail: The limitations will be that if one of the birth parents.... If the adoption has taken place under the act in existence now or under a previous act and a disclosure veto is registered by one of the birth parents, there is a limitation on the identifying information that could be disclosed.

J. Tyabji: I had trouble hearing the minister. She referred to a previous act. One question I'm asking under this

section is: is this only for people who originally came under this act, or is anyone in this province over the age of 19 who was adopted going to have access to information? Clearly, the disclosure vetoes didn't exist before.

Hon. J. MacPhail: This

section applies to this act and all previous acts as well.

D. Mitchell: Just a further question on

section 63 so I understand it. I've had some concern expressed to me about this

section and about whether or not it may create -- and I'm not sure if this is the case -- two classes of adoptees: those who.... Under

section 63(2) we create a

section where disclosure to adopted persons 19 or over is allowed, but under

section 63(2)(a), a disclosure veto has to be filed pursuant to

section 65. I think that with these next few sections which deal with disclosure and the openness of the bill -- which I think is commendable and which I support -- there is a concern expressed as to whether or not we're creating two classes of citizens under this legislation: those 19 and over where disclosure must be permitted, and those under 19 -- a child under 19. Maybe the minister could just explain this for my benefit.

Hon. J. MacPhail: I understand the point you are making, but it has nothing to do with the age of the.... It's not over 19 or under 19; it's the act under.... I think you're getting at the point that children who are adopted when this act is passed may have different rights or different access to information than adult adoptees who were adopted under the current act or under previous acts. I think that's what you're getting at. Is that what you're getting at?

Interjection.

Hon. J. MacPhail: Well, there certainly is under.... Children who will be adopted when this act is implemented have

[ Page 16380 ]

access to their birth information. Adoptees who were adopted under the current legislation or previous legislation have access to that information unless a birth parent issues a disclosure veto. It's that fine balancing act. I know that the hon. member was arguing the case of the privacy commissioner in second reading, and it's that very fine balance of protecting the interests of everybody in the adoption circle.

While I may have my personal views on the right of the child to know her birth information -- and I wholeheartedly support that -- the fact is that we also heard from birth moms who had very particular concerns around their issues and about the circumstances of their lives at the time when they gave birth and gave their children up, and around their wishes to have certain information not come to light.

So, it's that balancing. Believe you me, it's one of the issues that we struggled long and hard with in terms of how to balance those rights. I know that some may feel that yes, there are two classes; I would only say that if there's that feeling of two classes, it was society imposing a particular point of view -- very harshly, I think -- on birth moms 20, 30, 40 or 50 years ago that we just can't repeat in this new legislation.

So I'm hopeful that the experience of the adoption reunion registry that has now been in existence for three years and has been proven to be a very positive experience will give guidance to all parties to the adoption, and guide them in the way that they should deal with the disclosure information.

But at the end of the day, we felt it incumbent upon us to ensure that if the birth mom wished to have the contract she made at the time of adoption continue, then she should have the right to do so.

D. Mitchell: I appreciate the minister's answer on this, because I think that what we're doing with this section, and with this whole portion of the bill, is moving from a closed system to an open system, and we're taking the secrecy and the shame out of adoption. That's positive, and that's one of the really very positive features of this bill.

The minister referred to some concerns that were raised by the privacy commissioner which I tried to reflect in second reading debate. I should say that when I referred to the fact that almost 50,000 women in this province have decided in the past to put up children for adoption, and that some information indicated that perhaps only a small percentage of those have sought reunion, I was mistaken.

In fact, it has been pointed out to me since I made that speech, by a very diligent organization called Parent Finders of Canada, that the Canadian adoption reunion registry, which the minister just referred to, contains the names of 13,800 birth relatives, 8,675 male adoptees and 18,610 female adoptees, for a total of 41,085 people who are registered and seeking reunion. Obviously there is a demand, and there is an interest in a more open system.

The one issue that the privacy commissioner did raise -- and I would appreciate the minister's response to this -- is the privacy rights of birth mothers. I've had birth mothers who have contacted my office and who have indicated that they're fully supportive of the legislation, and I don't doubt that. On the other hand, there is a balance that the minister has tried to achieve, and I think it's important to raise it during our discussion of these sections dealing with disclosure. Is the minister comfortable that we have a balance, and that we adequately take into account the privacy needs of birth mothers? I know that it's dealt with in

section 66, the no-contact declaration. Is that sufficient, in her opinion?

Hon. J. MacPhail: I have sought guidance on this from the wide consultations we've done, because I don't have personal, direct experience with this issue. I have a wide circle of friends that have experience with this, and I'm guided by those who are affected, basically. No, not basically -- fully. We did an extensive consultation in this area, as you know.

I actually do believe that we have achieved that balance. I also know that individual needs won't be met; there will be cases of individual needs not being met under these circumstances. I would say that the fact that we've allowed for a disclosure veto.... But then birth moms have also said to us: "Please give them the information, but I can't have contact. In the context of my other family, I can't have contact." So that's why we've done the two levels: to allow for the greatest possible sharing of information while still protecting the birth moms' rights to privacy through no contact. I think it's a creative solution to some pretty emotional concerns.

In England and Wales adult adopted persons have been able to access identifying information, and in Scotland records have been open to adoptees since 1930. They will be implementing the same process as ours in Saskatchewan by September of this year. In Alberta adoptees can get their birth surname. Several states, including Kansas and Alaska, release the original birth information to the adult adoptee. Almost without exception this has been implemented without problems.

J. Tyabji: Just quickly, then, so that I'm clear on this, because there was no provision for a disclosure veto prior to this act.... The minister said that people who are covered under the current or previous acts will have access to this information unless a disclosure veto is filed. How will that be done? Clearly there won't be disclosure vetoes in place, and I would hope that there will be as much openness as possible.

If I can just add an editorial comment, when I hear the kind of intelligent debate that goes back and forth in this House on what a radical change we're making here with this bill, I really lament the focus of the coverage that's existed so far, because it hasn't done justice to the work of the minister. I also refer to the work of the member for Comox Valley. They have made a huge difference in many people's lives, and it's unfortunate that we haven't heard anything about that in the media.

Hon. J. MacPhail: Hear, hear! I absolutely agree with you. Those who are affected by it are hearing us and very much appreciate this. They too laud the work of the member for Comox Valley and her team on the adoption review.

Yes, it is essential that we take time to have a national campaign to inform the public about the changes. We're going to do that through the media and allow people the opportunity to be informed of their rights under this bill, including the right to issue a disclosure veto and the right to have access to the information. We'll do that through the media, nationally and internationally, because many of our children were adopted into the northern border states in the United States, as well.

We will use adoption agencies and information brochures, and we'll do it via the Internet, which has proven successful already. I must tell you that my staff informs me that the process has already started through the public discussion around this bill.

[ Page 16381 ]

J. Tyabji: If I were an adult adoptee in British Columbia -- and I would be celebrating the new openness in the records -- when could I reasonably anticipate being able to exercise my new rights under this bill?

Hon. J. MacPhail: We actually anticipate that it will take us a year to complete the national campaign of information, and so the new act will be implemented at the end of that. My staff just informed me that in three days of calls to our office after the act was introduced, 53 out of the 74 calls were about disclosure, so it's already starting.

[9:30]

J. Tyabji: I'm sure that of those 53 calls, many people were asking the kind of question I just asked: when do I get to exercise my rights? So if it will be a year, it will be a year until this act is brought into effect and at that time all of these provisions will be made. Is it possible for someone to already register themselves as someone who would like to seek that under this? I guess the consequential amendments that go with this bill also won't be proclaimed for a year. Is that correct?

Hon. J. MacPhail: Yes, there is already an adoption reunion registry where this is able to take place, and that will continue. We will continue both the active and passive adoption reunion registries throughout.

D. Symons: I'm probably going to express a differing opinion than what was expressed by many people about this

section in second reading and, indeed, than what has been expressed this evening up to this point. I do have some concerns about disclosure. I have concerns regarding the negative-option feature that is contained in here, where one can put in a veto. It would seem that if we already have an adoption reunion registry, and a good number of people have not, obviously, come forward.... It's more the birth mothers who have not come forward to put their name in there. The member for West Vancouver-Garibaldi mentioned a good number of children seeking parents. He did not give the corre