CHILD AND FAMILY SERVICES ACT (CONCLUDED)
The House resumed at 8 p.m.
House in committee of the whole.
CHILD AND FAMILY SERVICES ACT (CONCLUDED)
Resuming the adjourned consideration of Bill 77, An Act respecting the Protection and Well-being of Children and their Families.
Sections 69 and 70 agreed to.
On section 71:
The Acting Chairman (Mr. Robinson): I have an amendment from the member for Bellwoods (Mr. McClellan).
Hon. Mr. Drea: Mr. Chairman, I think there is an amendment on subsection 71(3), which the member for Brantford (Mr. Gillies) is going to move. It clarifies a clause where there were some lines dropped because of a previous amendment in committee.
The Acting Chairman: Thank you. I was looking at one resolution and had another in hand.
Mr. Gillies moves that subsection 71(3) of the bill be struck out and the following substituted therefor:
"(3) A society that receives a report under section 68 that a child, including a child in the society's care, is or maybe suffering or may have suffered abuse shall forthwith verify the reported information or ensure that the information is verified by another society in the manner determined by the director, and if the information is verified, the society that verified it shall forthwith report it to the director in the prescribed form."
Mr. Gillies: Mr. Chairman, I understand the purpose of this particular amendment is to include the words, "is or may be suffering or may have suffered abuse," which were inadvertently omitted from the subsection when it was amended. The effect of the amendment is to clarify that the duty to verify and report to the register applies only when reports of alleged child abuse occur, not to all reports that a child may be in need of protection.
Motion agreed to.
Section 71, as amended, agreed to.
Sections 72 to 83, inclusive, agreed to.
On section 84:
The Acting Chairman: Mr. Gillies moves that clauses 84(f), 84(h) and 84(j) of the bill be amended by adding at the end thereof in each case, "and operated by or for the minister."
Mr. Gillies: Mr. Chairman, the purpose of this amendment is to clarify that the facilities referred to in these clauses -- that is, open custody, secure custody and temporary detention -- are those under the jurisdiction of the Ministry of Community and Social Services.
Mr. Martel: Mr. Chairman, on a point of order: There is a need for clarification. I thought the member for Brantford was parliamentary assistant to the Minister of Labour (Mr. Ramsay). I am not sure what he is doing carrying these sections.
The Acting Chairman: The House allows certain amendments or sections to stand as part of the bill. Any member is at liberty to move amendments to any section of the bill in committee of the whole House.
Mr. Martel: I have no objection to his moving the amendments, but he is also doing the explaining. I thought that was the duty of a parliamentary assistant.
The Acting Chairman: Order.
Mr. Martel: I know he is trying to help the Minister of Community and Social Services (Mr. Drea), who is tired and all that, but is it usual for the explanation to come from the parliamentary assistant of another minister?
The Acting Chairman: There is nothing out of order.
Hon. Mr. Drea: Mr. Chairman, the member is not acting as anybody's parliamentary assistant. He is bringing forward amendments that have the support of the House. He is helping the member for Sudbury East (Mr. Martel), who is not all that familiar with some of the technical clauses of this bill.
I would also like taken from the record that I am tired. I am not.
Mr. Wrye: Mr. Chairman, I would like a clarification from the mover of the amendment. I suspect this amendment was made necessary by the fact that control under the Young Offenders Act is not with my friend the Minister of Community of Social Services alone. The 16-and 17-year-olds will be placed under the Minister of Correctional Services (Mr. Leluk). If that is so, I would like to have it clarified by either the minister or the member. Is that the intent of the amendment?
Hon. Mr. Drea: Later on in this session, Bill 149, which is under the Ministry of Correctional Services, will be debated. Bill 149 makes reference to Bill 28, which was passed by this House last spring. There is a three-month hiatus before the proclamation of Bill 77, which dispenses with Bill 28. This amendment clarifies the situation and makes it compatible with Bill 149, which has yet to be passed.
Mr. Wrye: Is that the one the Minister of Correctional Services moved?
Hon. Mr. Drea: Yes, the other side. It makes both of them compatible with Bill 28, until Bill 28 is absorbed into this bill next July.
Mr. Wrye: I want to be clear on this because it is important for those of us who oppose, as the minister knows, the decision to split the jurisdiction in regard to young offenders. Would this amendment still be necessary if Bill 149 were to come under the aegis of his ministry?
Hon. Mr. Drea: As I explained, there is a three-month hiatus between April and July when Bill 28 is rolled into this bill. Regardless of which ministry has jurisdiction over Bill 149, this amendment covers the 90-day period until there is a formal roll-in.
Mr. Wrye: For the record, so it is not misunderstood, our party will support the amendment on that basis. We would not support it if it was necessary because of the split in the jurisdiction, but we will support it on that basis.
Motion agreed to.
Section 84, as amended, agreed to.
8:10 p.m.
The Acting Chairman: The next section for which I have an amendment is section 130. Shall sections 85 to 129, inclusive, stand as part of the bill?
Mr. McClellan: Mr. Chairman, I just wanted to make a brief comment about section 99, which deals with the rights of children in care. Personally I am pleased to see this section in the bill and I again want to stress how important I think it is that legislation incorporate statutory rights for clients or consumers in bills as we have the opportunity to have them opened up and re-enacted. I want to tell the ministry I am very pleased to see section 99, section 100 and particularly section 101, which sets out a whole series of statutory rights of children to various service entitlements.
I had indicated in the committee that I would like to see this notion extended beyond the notion of rights defined in terms of statutory entitlements to service. I would like to see this notion extended to the child population in general. I have moved that bill in the past. I do not intend to try to craft an amendment that would fit into a child and family services statute it does not really fit, so I intend not to move my children's rights statute as an amendment to this bill. I will reintroduce it as a separate private statute and hope we can continue the debate.
I think we are making progress in this province as we proceed, statute by statute, to extend the notion of human rights beyond the traditional definitions that have to do with the liberty of the individual subject and to broaden the notion to include a statutory entitlement to certain kinds of service. I am particularly pleased to see subsection 101(2), which sets out the statutory service entitlements of children in care clearly and unequivocally, with sections later in the bill that provide for a means of enforcing those rights.
This is an important step the government and the Legislature are taking and I do not think we should pass by it in silence. It should be pointed out and the government should be encouraged to continue to move in this direction, however slowly it appears to be moving. Whenever there is progress in the right direction -- and God knows, it is infrequent -- I think it should be applauded.
Hon. Mr. Drea: Mr. Chairman, I think the government has moved very rapidly in this particular field, but I must say in fairness that we do welcome the support. These sections were not universally acclaimed when first proposed. I am talking about outside of here; I am talking about the agencies.
Mr. McClellan: You do not have to tell me about that.
Hon. Mr. Drea: I am aware of that. These sections, or the concepts in them, even before the sections were drafted, provoked quite a bit of media coverage that we were giving people too many rights, etc., so I do appreciate the fact that the member has called attention to all of part V. I think some may be more significant or germane to certain situations than others, but the whole of part V, Rights of Children, is a very significant part of the bill.
Mr. Wrye: Mr. Chairman, I also want to make two quick comments before we pass the appropriate sections, first of all to sections 126 and 127.
The Acting Chairman: Sorry. You are in the 120s?
Mr. Wrye: Yes. Do you want to pass to section 127?
The Acting Chairman: I can do it either way, but tell me the section you are going to start with.
Mr. Wrye: Sections 126 and 127.
The Acting Chairman: Shall sections 99 to 125, inclusive, stand as part of the bill?
Mr. McClellan: No.
The Acting Chairman: No? Mr. McClellan, may I know where you are?
Mr. McClellan: I guess we can deal with the concerns I have on sections 127, 128, 129 and 130. I do not know whether my colleague has any questions or amendments. I wanted to try to have a clearer understanding of the due process of the review teams and professional advisory boards which have the responsibility for screening and reviewing what are described as intrusive procedures or extraordinary measures. I will yield to my colleague.
The Acting Chairman: Are you content that we summarily deal with the sections up to 125? I am pleased to recognize you on a specific section if you are not.
Mr. McClellan: Maybe we could carry to the end of section 122, have some discussion on the remaining eight sections as a block and then deal with those.
Sections 85 to 122, inclusive, agreed to.
On section 123:
Mr. Wrye: Mr. Chairman, I have a number of matters in the additional area I wanted to ask the minister about. I want to start with a comment. Those of us on this side in this party have expressed -- as the minister knows; and the Acting Chairman as well, since he sat in our committee deliberations for some time -- a great deal of concern about four matters: nontherapeutic medical or chemical experimentation; psychosurgery; nontherapeutic sterilization, and electroconvulsive therapy, or ECT as it is known. At one point these were permitted in ministry facilities and are now prohibited in ministry facilities under subsection 127(3).
Those of us who had those concerns want to congratulate the minister for making a decision which we think is a good one. I want to indicate how pleased we are, having indicated our firm opposition. Also -- I know it is rare -- I want to congratulate the members of the government, particularly the member for Humber (Mr. Kells), who made representations to the minister. That kind of representation was very worth while.
I would like to get an explanation from the minister -- this is my friend's concern -- as to what the procedures will be now. These matters are now prohibited in ministry facilities, but it would be useful to be taken through the procedure should a physician wish to perform one of these acts on a child in care. How would he get the child out of care and into a hospital? There is a professional advisory board and there is a review on this matter, I understand.
While I am on my feet, I would also like some comments from the minister, and he may be aware --
8:20 p.m.
Hon. Mr. Drea: May we take the questions one at a time?
The review committee would have to examine the case and agree on what should be done. At that point, the parents would have to take the child out of care and give their consent. On the basis of that consent, the doctor would put the child into the hospital and the appropriate agreed upon procedures would be done.
If it were somebody other than the parent, such as in the case of a wardship, the agency or the society holding the wardship would act in place of the parent. The child would have to be removed from the institution. The prohibition is in the institution, and it is really a removal that facilitates a consent for admission to a hospital for certain prescribed procedures, which have already been agreed upon by the review committee, to take place.
The first part would be a proposal to the review committee that procedures be done. In addition, there will be very specific guidelines. Those guidelines will be forthcoming prior to July 1, 1985, when the bill will be proclaimed.
Mr. McClellan: I do not have any particular problems with subsection 127(1). It sets out certain recommended procedures -- psychosurgery, nontherapeutic sterilization or electroconvulsive therapy. I have had the opportunity to discuss with the Ministry of Health the status of each of those three procedures.
Psychosurgery is not permitted, nor is nontherapeutic sterilization, as I understand it, with respect to children. Electroconvulsive therapy has been used in three incidents since 1980, so we are not talking about practices that are widespread in most cases.
I missed something. I came into the proceedings late and I do not quite understand what is meant by intrusive procedures. I cannot get a clear handle on the range of procedures that come under the rubric of intrusive procedure. I may be missing something very simple, but perhaps the minister could help me understand where we can find a complete definitional list of intrusive procedures. Will that be done through regulation, or have I simply missed something in this set of sections?
Hon. Mr. Drea: If the member will turn to page 96, section 108(b), there is a definition of intrusive procedure. It says, "'Intrusive procedure' means ... "
Mr. McClellan: Oh, right.
Hon. Mr. Drea: There are also regulations.
Mr. McClellan: I am aware of this section. For me, the difficulty is that the definition is in three parts: "(i) a mechanical means of controlling behaviour," referring to various behaviour modification techniques with which we are more or less familiar; "(ii) aversive stimulation technique" -- again, that is clear -- but then (iii) is "any other procedure that is prescribed as an intrusive procedure."
Hon. Mr. Drea: That is the part we will bring forward under regulations.
Mr. McClellan: Again, we look forward to receiving as quickly as possible whatever drafts the ministry is preparing.
I realize this is difficult, but could the minister walk us through the review process? Could he do this, first, with respect to intrusive procedures; and second, could he explain how the professional advisory board gets into the picture. I am genuinely a bit confused about what the due process is with respect to this set of sections.
It is obviously not as coherent -- I do not know if that is the right word -- it is not as rigid as the due process that is set out for patients under the Mental Health Act, for example. We have a different kind of process here. I would be grateful if the minister could walk us through it and tell us at what point the client or the representative of the client has an opportunity to make representation against the use of either intrusive procedures or the procedures that are set out under section 127.
Hon. Mr. Drea: First of all, Mr. Chairman, the interdisciplinary committee that is evaluating the case --
Mr. McClellan: Automatically in all instances?
Hon. Mr. Drea: It is a facility-based interdisciplinary committee.
With a child under 16, before the decision is rendered, the child or, obviously, the child's representative has the right to be heard; that is the due process. A child over 16 years of age must give consent, and that is a more formal due process.
The committee meets. It has the criteria necessary to control the particular problem. As I said, the child under 16 has the right to be heard. A child over 16 has the right to be heard too, but in addition, the child over 16 must consent; and parental consent is also involved.
Mr. McClellan: I do not want to belabour the point. I have a feeling that when one gets to the use of certain procedures and, I would think, certain aversive behaviour modification techniques, this is one category of procedures. Another is the administration of psychotropic drugs.
I have a concern that the government is going to find itself running into Charter of Rights challenges with respect to the right of the individual, particularly over 16, to refuse to agree to the intrusive procedures or to extraordinary measures such as psychotropic drugs.
We are all trying to grapple with the implications of the charter at this point. My sense is, and I think it is the sense of the Minister of Health (Mr. Norton) and of the Ministry of Community and Social Services as well in most cases, that as a result of the passage of the Charter of Rights, appeal procedures and review mechanisms have to be pretty scrupulous in their adherence to procedural fairness and rules of natural justice.
Whether or not the review mechanism that has been set out in this section of the bill is adequate to meet the test of the charter is something I question. I think we will find out reasonably soon.
Again, I do not intend to belabour the point. I recognize as well there needs to be a kind of balance: on the one hand, between the requirements of professionals for freedom to practise their discipline without 18,000 lawyers looking over their shoulders and; on the other hand, the need to set out procedural safeguards against the potential abuse of therapeutic authority.
I am really raising the concern in the form of a question. In the case of the professional advisory board, which does not provide for the normal procedural safeguards of an appeal before a tribunal with the right to review evidence and to be represented by counsel in case of an objection, if there was a challenge to the ministry under this section I am not sure the section would stand the test of the charter.
8:30 p.m.
Hon. Mr. Drea: Mr. Chairman, we are as confident as we relatively can be that it will meet the obligations of the charter. There may be a challenge, and we will abide by the results in court. In preparation for this, the ministry's solicitors, who are actively working on the implementation of the charter and other constitutional matters affecting all the legislation and practices of the ministry, gave this matter paramount importance in the drafting of this particular legislation.
We have had professional advice regarding the consent provisions. I would also draw to the members' attention -- it is not all that relevant -- that psychotropic drug administration is not considered to be, by definition, an intrusive procedure.
The Acting Chairman: Any further comments on the section dealing with review teams, which would be section 123?
Mr. Wrye: Mr. Chairman, I want to raise this matter with the minister. He is probably aware there has been, over time, a great deal of lobbying; a number of people, particularly the Ontario Medical Association, have spoken to me, and I have had a chance to speak to some of the ministry people and others in the field. I must tell the minister at the outset I am not prepared to move an amendment because I could not find an appropriate word.
I would like his comments. He is well aware of the concerns with respect to clause 126(2)(c), that is the specification of the psychotropic drug to be administered. It is the consent section. It says, "any risks" -- and then the key word -- "and possible side effects associated with the psychotropic drug, and how they vary with different dosages."
As the minister knows, the particular concern is about the word "possible." We have had a great deal of debate over the use of the words "possible side effects" as opposed to "significant", "probable" and a number of other phrases that might have been used.
It is important for the minister to comment for the record, particularly in view of the representations that have been made by an important group in this province which will be involved in this, as to why he feels comfortable with the word "possible" and why he does not feel it is inappropriate. The concern was that the use of the word "possible" would open up those who are involved in the administering of psychotropic drugs to listing everything that has ever shown up in a medical journal. The minister's friend immediately to his right can tell him that in some cases that could be very long, even if that side effect had shown up only once.
I ask the minister to offer some comments as to whether any other words were looked at and why the word "possible", which does appear to be very general, has been left in.
Hon. Mr. Drea: First, sometimes the drug is new and there may not be any firm evidence on side effects, but there may be some very deep suspicions. If one is an adult in a hospital -- and I give only my own experiences -- when one is given a drug, they now stand there for quite a few minutes and list quite a number of possible side effects.
I think it is very valid. If one is going to have new, or even some tried and true, prescriptions administered, then one should know about the side effects, or somebody who is acting for one or who is going to have to give consent should know.
Obviously, if the medical profession could guarantee what the side effects might be, it would do so. They quite often do not know. Times change and the development of drugs changes. There is constant evaluation. Also, there is a court decision as a guideline that all material risks must be provided before a consent can be given. I think there is a interpretation in the courts that the word "possible" is qualified or mitigated by the word "reasonable." It is now not quite the long duration that perhaps is outlined. I do not think it is a --
Interjections.
The Acting Chairman: Order. The member for Cochrane North (Mr. Piché) will please come to order.
Hon. Mr. Drea: He may very well be more interesting to listen to, Mr. Chairman, but I am trying to deal with what I think is a very important topic, namely, that the person who is going to give consent, or the representative who is going to give consent, should have the widest possible knowledge about any risk, however slight, that may be involved. Bear in mind that in the past nobody knew anything about thalidomide; if they had, it never would have been prescribed.
Because of a great many advances there will probably never be something as widespread as that again, but where children are being administered to the widest possible knowledge and examination is very valuable. After all, if 50-year-olds get that kind of treatment in hospitals, why should a 13- or 14-year-old not be acquainted with some of the things that are involved? I do not think the substitution of any word will necessarily mitigate against the risks or the information that has to be conveyed.
Section 123 agreed to.
Sections 124 to 129, inclusive, agreed to.
The Acting Chairman: I had an amendment from the member for Bellwoods to follow section 129. I understand he is not going to place it.
Mr. McClellan: I do not have it at hand, Mr. Chairman, but it dealt with the application of the common law to this part of the act. I am assured by those who know that the common law applies to the whole act. If I move an amendment restricting it to this part of the act, that would call into question the application to the rest of the act; so I do not intend to move it.
The Acting Chairman: That seems appropriate.
The next amendment I have in hand is one from the member for Windsor-Sandwich (Mr. Wrye) to section 157. Are there any matters between sections 130 and 157?
Sections 130 to 156, inclusive, agreed to.
8:40 p.m.
On section 157:
The Acting Chairman: Mr. Wrye moves that subsection 157(2) of the bill be amended by adding thereto the following clause:
"(ca) The disclosure by a director to a person who is adopted and has attained the age of 18 years of information that relates to the adoption and does not identify an individual by name or make him or her readily identifiable by other means."
Mr. Wrye: Mr. Chairman, we have now reached the point at which we have begun to discuss the first of a series of amendments in the adoption part of this legislation. I want to say at the outset in a general way that if there is a part of this act with which my colleagues and I are most unhappy, this is certainly that part.
I sat through the hearings in February and again in July, as well as through our clause-by-clause deliberations in the latter part of October. Mr. Chairman, I am sure that, having sat on the committee, you know as I do that if there is an area that will strike an emotional chord, this is it.
I intend to place three fundamental amendments and two that are consequential. If there is a single amendment of the five that I deem to be most important, then this is the one, in the sense that I view the failure of this bill to deal with this matter adequately as its most glaring omission. From my perspective and that of my party, it is the one area I am simply at a loss to understand.
The section of the bill this amendment seeks to supersede is clause 157(2)(d), which seems to give the nonidentifying information to the adult adoptee, but only on the narrowest of grounds and only at the direction and whim of the director. I do not think the directors of children's aid societies will take too much offence if I use that word "whim."
The wording of the clause is as follows: "The disclosure of information of a prescribed class to a person whose access to the information, in a director's opinion, is necessary to protect any person's health." That may be well and fine for adopters of an adult adoptee and for others, but it seems to me and to my party that we are talking here about the rights of adult adoptees. I cannot think of any reason in this world that an adult adoptee should not have the total right to obtain nonidentifying information on demand.
The members will notice the key word is "nonidentifying." That is clearly intended in the amendment. I hope we will not be subjected to suggestions from those who might oppose the amendment that a host of information could lead overall to something of an identifying nature. The amendment is very clear and in my judgement clearly puts an obligation on a director to ensure that any identifying information or any identification that proceeds from it is purely happenstance and that the information per se is of a nonidentifying nature.
At the very beginning of this bill we start by talking about the best interests of children. I do not think the best interests of children end -- and I am going to make this argument again a little later with respect to an active register and two-party disclosure, but in particular on this matter -- I do not think the best interests of the adopted children end when they are no longer children. I think their access to the kind of social and medical background and other background that may be useful to them, in a nonidentifying way, is indeed in their best interests as adults. I do not believe this information would in any way jeopardize or replace, although I wish to replace, some of the law that is being written in section 158.
However, I remind the House, that section 157 as it is written, without this amendment, represents a major step backward in my judgement and in the judgement of many professionals in the field, who the minister and the House know are currently continuing to give out nonidentifying information on the advice of their solicitors.
This legislation takes a very major step back as of July 1,1985. That is not just my opinion; it is the opinion of the directors of many children's aid societies who have called. I see the minister looking at me. I must say to him quite frankly, I have been quite surprised. We are not talking about certain individuals who have concerns; they are well known. I am talking about a number of directors, one from my own community who happened to call this very day to ask, "What is happening with Bill 77?" He expressed a concern about this section.
A number of directors have called from other communities represented by members on all sides of the House. They have expressed deep distress over the fact that the right of adult adoptees to obtain nonidentifying information on demand has been taken from this bill. They believe it is a step backward. If they believe it is a step backward, there is no doubt those people who are adoptees, particularly those --
Mr. Piché: Are the cameramen filming?
The Acting Chairman: Order.
Mr. Piché: How will we know if they are filming? Those lights are --
The Acting Chairman: Order.
Mr. Piché: You can call me to order, but I want to know if they are filming. They are? I want those lights turned off --
The Acting Chairman: Order.
Mr. Wrye: With respect, I hope the member for Cochrane North, whose humour I appreciate on many occasions, will realize that this is an important debate. I hope he will not trivialize it. If my friends in the press gallery wish to film or tape certain parts of it, they should be allowed to.
Mr. Piché: How much is it costing the member? How much has he paid?
Mr. Wrye: I think we can do with the lights --
Mr. McClellan: Have we got to put up with this nonsense? I am not going to put up with it.
Mr. Breaugh: Mr. Chairman, on a point of order: I have a solution. Get somebody to roll him out of here so he will not be disturbed by the glare of the bright lights.
Interruption.
Mr. Piché: A bunch of heroes up there.
The Acting Chairman: Order.
Mr. Breaugh: Mr. Chairman, on a point of order --
Mr. McClellan: Somebody get him out of here.
Mr. Breaugh: Get him out of here.
Mr. Piché: Terrible, terrible.
The Acting Chairman: Order. The member for Cochrane North will please resume his seat.
I caution our visitors in the galleries --
Mr. Piché: That is right -- a bunch of heroes.
The Acting Chairman: Order.
Mr. Breaugh: Mr. Chairman, on a point of order --
The Acting Chairman: Order. The member for Oshawa will wait one moment, please.
I must caution our visitors in the galleries that the standing orders of this House prohibit demonstration by any means or in any form. If there is any further outburst from the public galleries, I will be forced by the standing orders to order the galleries to be cleared.
Mr. Piché: Mr. Chairman, on a point of order: I have to take exception to what was just mentioned here. I have made some comments and I am very disturbed. There are some people up there who made some comments they should not have made. You are wrong in coming out with the comments you have made. They do it all the time --
The Acting Chairman: Order. That is not a point of order.
Mr. Piché: It is a point of order.
8:50 p.m.
Mr. Breaugh: Mr. Chairman, I wish to speak briefly to the point of order. I know this is an unusual situation. What I am going to plead is that this a particularly sensitive issue, and the member for Windsor-Sandwich was attempting to put what I think is a rational argument. There may be times when we do have a lot of give and take here and a lot of jokes are passed back and forth --
Mr. Piché: That is below the belt.
The Acting Chairman: Order.
Mr. Breaugh: The point I am making is that this is not one of those occasions when that is appropriate, by any stretch of the imagination.
To the second point of order: I appreciate what the standing orders say about demonstrations in the gallery, and I hope you will forgive those people in the gallery who are very emotionally involved in this debate tonight. I just want to make one final comment to you. The standing orders are silent on what people in the gallery are supposed to do when they are heckled and called names by members of the Legislature. Your first order of business is to keep order down here.
The Acting Chairman: That is exactly what I am attempting to do. However, I also point out to you that the standing orders make no provision for addressing an admonishment or a warning to the public galleries either; only for their clearance. I thought I was being sensitive, as is always the case in the chair of this House, by alerting visitors in the public galleries, who may not be as familiar with the standing orders as we are, that any further outbursts simply would not be tolerated.
Mr. Wrye: I would like to explain to the members what we propose to do in this amendment. I believe very strongly in the other amendments, but they are probably not quite as basic as this one. In its most basic form, without getting ourselves into the matter of identification and roots in terms of names of people and the exact nature of a person's origins, this amendment would allow an adult adoptee to be given information that is pertinent to him or her. I would be very surprised if this -- and I am not a lawyer --
Mr. Nixon: Do not apologize.
Mr. Wrye: My friend the member for Brant-Oxford-Norfolk suggests, as he does on so many occasions, not to apologize for that. However, as a layman, I would be surprised if a section with this kind of retrograde step could survive some kind of a Charter of Rights challenge. I would be truly amazed.
But more important, this amendment restores some fundamental rights to adult adoptees. I urge every member of the House to think about that. I urge the minister, who I know has felt very strongly that he cannot move in these areas, to think about this one area at least. It is important, I believe, that we send a message to adult adoptees. I believe that this and the following section are not different, and the minister knows that.
If we cannot move to make adult adoptees citizens with full and complete rights in terms of nonidentifying information, then we are saying to a group of people who are captured by this bill as being cared for in their best interests, that as they grow older not only do we not care about their best interests but also we no longer care about their interests whatsoever.
I urge the minister to accept the amendment and to indicate to the House what he is prepared to do, if not within the amendments, in regulations and guidelines. I think the amendment is a very reasonable and responsible one, and I hope the minister will speak to it in a positive way.
Hon. Mr. Drea: Mr. Chairman, because of some noise, I did not hear the member's last few words. Could he say them again?
Mr. Wrye: First of all, I urge the minister to accept the amendment or at least to indicate to members of the Legislature, to the people in the galleries and to hundreds of people in every city and town in the province -- I have received hundreds of letters; a number of form letters and some very strong individual letters -- what he is prepared to do in this matter.
Obviously, I hope the minister will accept the amendment. If he is not prepared to do that, I will be very interested to hear whether there is anything he is prepared to do under regulations.
Mr. McClellan: Mr. Chairman, I do not want to belabour arguments we have had at some length in the past, but I have to express complete puzzlement on this section. I understand the minister's position with respect to the disclosure of identifying information to adult adoptees. I understand his position but I do not agree with it, and we will be having that debate again when we get to the next section, 158.
I understand what the minister is saying, and I believe I understand some of the reasons he and a number of his colleagues have put forward, as well as the concerns shared on all sides of the House with respect to the disclosure of identifying information. However, I do not understand why we are moving backwards with respect to the disclosure of nonidentifying information; it strikes me as being beyond the rational.
Prior to the Ferguson case, in adoption situations we had the practice of children's aid societies preparing what is called a life book, which is a compilation of nonidentifying background information with respect to the adoptee. Some of the material relates to the medical, health, ethnocultural and genetic backgrounds; and some of it relates to the circumstances leading up to the adoption, why it was necessary the child be placed for adoption, without identifying the birth parent. I stress that the birth parent is not identified, because the minister raised his eyebrows in that quizzical way.
As a result of the Ferguson case, it became very difficult, if not impossible, to provide even nonidentifying information. The purpose of section 157, as I understand it, is to make it clear that the ruling of the judge in the Ferguson case has been overcome by the draftsman's art. However, I do not understand why it is, when we are doing that, we narrow and constrain so severely the range of nonidentifying information that can be provided.
In clause 157(1)(d), the minister has limited the disclosure of nonidentifying information to information that is "necessary to protect any person's health." All other material that formerly could be in an adoptee's life book, which might be available to him as an adult, will be impossible to disclose, as I understand it.
9 p.m.
So we are moving backwards, and we are moving backwards for no apparent reason. There is no reason under the sun to limit nonidentifying information to one specific category. I invite the minister to put forward the reasons for this severe limitation to the one category, health information. I invite and challenge him to explain to us why other kinds of nonidentifying information are to be forbidden. I do not put it beyond the realm of possibility that I have fundamentally misunderstood this section, but I do not think I have and I would ask the minister to explain why he has taken this giant step backward in section 157.
Mr. Breaugh: Mr. Chairman, I would like to participate in this discussion, but it might facilitate matters if the minister would care to give us a brief reply now.
Hon. Mr. Drea: Mr. Chairman, I can do that. I would prefer to do it at the end; it seems to be a little more logical, but if that is what the members want --
The Acting Chairman: On the same point, it might be more expedient if the minister were to respond to all the questions at the same time.
Mr. McClellan: No, this is not second reading debate; this is clause by clause and I think it makes sense at this point in the discussion to have some reply from the minister.
The Acting Chairman: I am in the committee's hands.
Hon. Mr. Drea: I am perfectly willing to do it; it just seems more logical to do it all at once.
Far from being a backward step, this clarifies what has always been the policy. Second, it is a very substantial step forward from the impact of the Ferguson decision. It is very interesting that certain societies maintain they have legal advice that says they can give out nonidentifying information. It is the opinion of the law officers of the crown from the Ferguson decision that no information can he disclosed.
The member for Windsor-Sandwich looks at me quizzically, but I have said this repeatedly in committee, it has been brought to the attention of the committee repeatedly.
Obviously there is a variance between the thinking of the Liberal Party and that of the New Democratic Party on this matter. The New Democratic Party, through the member for Bellwoods, was quite specific that very little information could be disclosed; in fact, he said it was very difficult to disclose any nonidentifying information at times. Obviously that flies in the face of those who maintain they do have the right to do so.
In the past the policy was -- and this was before the Ferguson decision; and, indeed, it was reaffirmed the last time this matter was discussed legislatively, which I believe was 1978 or 1979 --
Mr. Breaugh: In 1980.
Hon. Mr. Drea: It was discussed at great length in 1980, and the policy has been that adoption information is confidential except where a need to disclose is shown.
Over the years certain practices developed, and then we had the Ferguson case. Just so everyone is fully aware of the Ferguson case, and I am sure everyone is, it was not a government case. It was an application brought to get more information, and the court ruled very specifically that more information was not available. The impact was that it became almost impossible for any information, and I am talking now about nonidentifying information, to be given. So much so that I have even had appeals in one medical case. I am sure everyone is aware of it; and regrettably, it did not work. As the minister, I was asked to declare certain matters to be a health emergency so that therefore we could move to find some information.
This section now provides that medical information that is required can be provided and clarifies this matter. Bear in mind there is an obligation to disclose to the adoptive parent, prior to the adoption order, the very information the member is talking about. It covers far more than just health; it is the very information the member is talking about. I know that is a subjective definition of what is contained in it, but the adopted child surely has the opportunity to obtain that information from the adoptive parents.
If the member is going to say that once the adopted child reaches a certain age he should have absolute rights, there is no difference between that and saying the adopted child has the right to absolute disclosure. It is the same principle.
In summary, it is not sending a signal to adults who were adopted or raised by an adoptive family. Indeed, it is sending a signal to adoptive parents that, if they choose not to share the social background, for whatever reason -- and perhaps they have a very good reason for not wanting to do so. We are not talking about medical information; no one is ever going to be without the medical information necessary to their health.
There are situations in small communities, however, where even the slightest bit of information is more identifiable or ceases to be nonidentifiable, even with the best of intentions. That may not happen in larger communities, but I do not know how we can discriminate on the basis of geography.
We are taking the position that adoption information is confidential, except where there is need to disclose and where that need is shown. In this section of the bill, that need to disclose is shown to be a medical reason. That is quite consistent with the tradition of adoption confidentiality in this province. It is not something that was thought up during the course of this bill.
On the basis of the Ferguson decision, we moved in this regard to make it absolutely clear that necessary medical information can be obtained at any time. That is the reason. It is not something that is moving forward or backward. It is a move that is quite consistent with what has always been the practice. If there are erosions of the practice, that is something else.
The Ferguson decision focused on a particular aspect of the law. It is absolutely clear it was never the intent of this Legislature to ban the transmission of necessary medical information. I think the member for Bellwoods, who was a participant in the last legislative debate on this, would agree that was not the intention.
The wording, the draftsmanship, how it wound up resulted from that decision. We are eliminating the impact of that decision. We are clarifying it in such a way that we will not have another Ferguson decision. We are maintaining what has always been adoption confidentiality in Ontario.
9:10 p.m.
Mr. Breaugh: Mr. Chairman, I want to participate in discussion of this difficult, awkward, sensitive, full-of-conflict part of the bill. It might be useful to take a couple of minutes to reflect my own experience on it.
When I first came to this kind of disclosure concept, I really was not very familiar with it. It is not something for which most people in society have a practical use. It is almost a theoretical or philosophical point of view that begins the process. The first time I had very much of a discussion about it was with the member for Scarborough West (Mr. R. F. Johnston) and a group called Parent Finders.
My first instinct was to ask why people would want to know that kind of thing. What good would it do? What use would one make of it? I was not able to sit through the committee hearings, but I did try to follow what was going on there. I went from those initial preconceived questions and got more and more information about why people would want to know those things and how important those things are to them. As one sits and listens to the very emotional and sensitive pleas of these people for what they consider to be a basic human right, it does move one along the trail. It has moved me along the trail to the point that even though a year ago I think I would have been quite content with the amendment now before us, today I probably want a bit more.
The truth of it is we do not quite have a grasp of this issue yet. This is an area on which I believe we ought to pass for a moment. We ought to stand this section down, set it aside, send it back to committee. Perhaps after we proceed with the legislation here, the minister could simply withhold proclamation of this section until we have focused a little more discussion on it. Most of us are aware there is not a very simple, clear, or black-and-white set of issues here. There are conflicts about different people's rights. Who has more rights?
This is a very complicated bill. I might point out to the minister it is pretty tough to put this much legislation together in one bill and have us give due consideration to all sections of it. It seems to me that this matter is going to go to court. There will be challenges; there will be lawyers' fees, agony and waiting. We know that if this legislation goes through as is, that will be the process. We know the conflicts are there and will be heard. We know there is a Charter of Rights and Freedoms. We know more and more people are exercising their right to go to court to try to get those decisions.
When we write legislation such as this, we are supposed to be sensitive to such areas. It is our job as legislators to try to sort them out. It appears to me that in this instance we have not done that. We know what the conflicts are. If we worked at it a bit more, we could get a better consensus on it.
I want to make a plea to the minister. In introducing the amendment, the member for Windsor-Sandwich has set out the case that he is looking for a little growth and change. I did not sense he had his whole heart in it here; that this amendment is going to solve anybody's problems, but he is looking for some movement on the part of the minister, some compromise, some indication he is prepared to review the matter. Frankly, so am I.
I would like to see this section of the act stood down. I would like to see this go back to committee for a while. I know the minister has an important piece of legislation here and there are lots of things in it he wants and wants now. He is by his very nature a little on the impatient side. So are we all.
I want to make a personal pitch to him. I believe this is a matter that needs a little more thought. I believe it needs to go back to committee and have us wrangle it around the block again. In less than a year I have changed my view on the matter substantially, just because I have had more exposure to it during that time. People have challenged me to think about my limits. That is important.
The amendment before us will cause a little movement. Perhaps it will cause the minister some aggravation. I was interested that when he responded just briefly a couple of moments ago, I did not hear much of a response to the amendment that is being proposed. I heard the minister give the reasons the bill is as it is.
Hon. Mr. Drea: That is what I was asked to do. The members asked me to do that. I will respond in a moment.
Mr. Breaugh: Yes. There is part of my problem, I think. I do not know why the minister has taken his current position. I know it is a difficult issue; I give him that. With all my heart I give him that. I know it is tough to arrive at a consensus; it is tough to draw those lines. But I also know that somebody is going to redraw those lines, and it will be a court that does it. We know this as we pass this legislation tonight, and I am saying it would be better if the Legislature of Ontario were to take more time to look at this particular part of it.
The minister has a variety of ways he can do that. He can stand down one section and send it back to committee. He can say we will not proclaim this section for a while; we will think about it some more. He can go to select committee; he can put it out to the standing committee on social development again. There are a variety of things he can do.
I am simply asking him to pick one of those options and exercise that right to give this more thought to see if we can search for some common ground that all of us can support; to see if we can find something that will address itself to some people who have trusted me, in the first instance, with their sincerity and, second, with something that is a little more important than we have here; some good common sense that there is a need, a rational reason that people should have this information and that it does some people some considerable amount of good.
I think we have to address ourselves to those issues and I am afraid we have not done that so far. Without pointing blame at anybody, without saying it is the government's fault, our fault or anybody's fault, I am asking the minister to give at least some consideration to this amendment and, even better, to give more consideration to the issue itself in a broader sense; to give us a little more time, to let us try to find the common ground between all of us and to draw up some guidelines that make sense to most of the members of the assembly. We should at least show people out there who have identified this as an issue that is very important to them personally, in their lives, that we care enough to pause and give it a little more thought.
Mr. Cooke: Mr. Chairman. I want to make a few comments on this issue. It has been six years since we last discussed this matter in the Legislature. I know there has been a lot of discussion, most of which I have not been a part of, in committee.
I have some very strong feelings about this issue. I must say that, out of all the review that has gone on with all the children's legislation, I am absolutely, totally and completely disappointed that the government has refused to move in any way, shape or form on this particular issue.
Just yesterday afternoon I discussed this whole matter with the executive director of the Roman Catholic Children's Aid Society, County of Essex who, along with his board and the board of the public children's aid as well, is in a state of real upset that this section of the legislation, in their view, is a step backwards.
I know the committee has debated this and discussed it, but I want to put a few of my personal thoughts on the record in the committee of the whole House because it will probably be another six or 10 years before we debate this very important issue again, unfortunate as that may be.
My background, as I said six years ago, was one where I used to work at a children's aid society. I used to work with parents who had given up their children for adoption. I think I have some sense of how difficult that decision is, and I had a heck of a lot of respect for the men and women, primarily women, who gave up their newborn children, and in some cases older children, for adoption. It is a very difficult decision.
I respect that, I understand it and I respect the individuals who make that decision, because it is such a difficult decision. In most cases, in the vast majority of cases, it certainly was the right decision.
But I have to say that when a child is brought into this world, the parents of that child have one final responsibility even if the child is given up for adoption, and that is the responsibility to accept the right of the child eventually to come back at some point and meet his natural parents. This is a basic responsibility I believe should be built into the system.
9:20 p.m.
Unfortunately, this amendment would not accomplish that, although it is a step in the right direction and is better than what we have. Unfortunately, the present legislation before us still treats this whole process, in many ways, as if we were still in the 1800s.
I was absolutely shocked when I heard the minister in committee say he felt the adoptive parents had the right to decide not to tell an adopted child that he or she was adopted. I was absolutely flabbergasted to hear the Minister of Community and Social Services say that is a right in our society in 1984 and that a child does not have to be told he or she is adopted. We might as well be back in the 1800s, still talking about ownership of kids. We are saying that once the adoptive parents adopt the child, they somehow have some ownership of that child.
Children are individuals and 18-year-old adoptees are adult individuals. Surely to God, this Legislature in 1984 should take at least a minor step, as minor as the amendment is from the member for Windsor-Sandwich. I would like to see the major step made where we talk about full disclosure.
My God, if we pass an amendment on disclosure, it would be the year 2002 before that amendment would kick in. It would be 18 years from now before a disclosure would even kick in. I suspect by the year 2002 we are going to look back at the debate in this Legislature and realize how backward this Legislature and this government was on this particular, very sensitive and very difficult issue, but none the less an issue that is important to thousands of adoptees across this province.
The Acting Chairman: On the same point?
Mr. Wrye: On the amendment. I want to raise --
The Acting Chairman: I am sorry. May I hear first from others, who have not spoken once, before you speak.
Mr. Mackenzie: Very briefly, Mr. Chairman. Having sat through some of the committee's hearings for a brief period, I found my thinking changed during that time as well. I would simply like to add my voice to those asking the minister to take a look at possibly standing down this section of the bill or take another look at it.
I am not sure I would go as far as the member for Windsor-Riverside (Mr. Cooke), but I think the time is coming for some movement that opens up the information procedures a little. I also suspect we are going to regret it if we do not move during this current debate on the changes in this bill. I do think the feeling among the public about the right of a child to have some additional knowledge when he reaches the age of majority is developing.
I would ask the minister to give it some additional consideration. There is a legitimate argument that could be made.
Mr. Wrye: Mr. Chairman, I appreciate the comments from the member for Oshawa (Mr. Breaugh) and the member for Hamilton East (Mr. Mackenzie) with respect to standing down this section and section 158. I say that particularly with respect to the next matters which may be more difficult and, as the member for Oshawa suggested, much more complex and may need further study.
I am prepared to move the amendments. If the minister wishes to stand down this section, the next one, or both, I am quite prepared to agree to that. The time has come, as the member for Hamilton East just said, for some movement.
I do want to raise a couple of matters with the minister. I appreciate the minister's comment that this undoes the problem with the Ferguson decision, but with respect, I do not think that moves us ahead. I think a lot of the children's aid societies very clearly share the view I hold that we are stepping back.
In writing this very complex piece of legislation in 1984, we should take a look at where we are going to be in 1989. The member for Windsor-Riverside suggested we will not look at this matter again for six or seven years. He is probably right. In opening up that very narrow medical field as opposed to the other areas mentioned by the member for Bellwoods, I do not think we really have moved forward at all. We have got ourselves almost back to square one, as it were.
I noted in the minister's comments, a reference to the small-town matter, which I think is important. I commend to him the words in the amendment, "the disclosure by a director of information that relates to the adoption and does not identify an individual by name or make him or her readily identifiable by other means."
This leaves some discretion to the director in a smaller town. The kind of information that might be disclosed in a Toronto case might not be able to be disclosed in a small town. This leaves a degree of discretion where the director could decide it might be fine to disclose certain information in Toronto but not in Leamington or some other smaller community. There is certainly a problem there. Perhaps, as the member for Oshawa said, we have to take a closer look at it. However, I suggest to the minister the amendment does capture that.
Finally, I want to comment about a matter concerning the adoptive parents -- the provision in subclause 157(2)(e)(i). I am well aware adoptive parents will have this information. I know many adoptive parents and almost in totality they are decent individuals at the very least. They are fine individuals who care deeply for their children. However, without using any words that would be inflammatory, the legislation still leaves it up to them to make the decision.
It seems to me this amendment says adult adoptees have the right to find out the information themselves. They could do this without having to ask their parents, without having to get into that potential conflict and without, in extreme cases, being put in a situation where they do not know they are adopted in the first place. I suppose in that case they would not ask for it anyway -- that is a distinct possibility. However, I think this matter overcomes the potential conflict between an adult adoptee and an adoptive parent.
I have no personal involvement in the matter, but as an individual who has thought about these cases, I can imagine the potential for conflict would be there. It seems to me the most objective way to overcome it is to say to the adult adoptee: "You have that right because the information really is yours. The information is not that of the adoptive parent."
I hope the minister will appreciate the comment made about the smaller towns. I understand what he is saying, but I think the amendment captures that. Again, I would appreciate any comments he would make to my friend's suggestion that we might move this matter back to committee for further study.
Mr. McClellan: I did not intend to speak twice, but the minister made reference to the debate in 1978 and spoke about what he called a tradition in Ontario. I want to say to the minister as clearly and as flatly as I can that this was absolute bunk. Prior to the 1978 Child Welfare Act, there was no such thing as standard practice in this province with respect to the disclosure of nonidentifying information or the disclosure of identifying information. That is a simple fact of life in this province.
9:30 p.m.
If one went to one children's aid society, as I did in the 1960s as an adoptive parent, one could be given all the identifying information. If one went to another children's aid society, one would be told one could not get any identifying information of any kind. If one went to a third children's aid society, one could be given partial information. There was no such thing as standard practice or procedure in Ontario prior to 1978 with respect to the provision of identifying or nonidentifying information. That was the tradition up to 1978.
When we rewrote the act in 1978, we included subsection 80(1), a five-line subsection, which is the equivalent of this full-page section 157 we are dealing with tonight. All the subsection says is after the adoption "the documents used upon an application for an adoption order shall be sealed up and filed in the office of the court ... and shall not be open for inspection except upon an order of the court or the written direction of a director" of the ministry.
Nobody dreamed in 1978 that was somehow limiting the disclosure of nonidentifying information to health matters. Nobody had the slightest inclination of an idea that was dreamt of in that general phrase. Nobody had the slightest inkling that the director was forbidden in any absolute sense from disclosing other kinds of nonidentifying information.
I cannot begin to explain away the Ferguson case, but I can tell members what was in the minds of the people who went through a long debate in 1978. Nobody dreamt that the interpretation of the judge in the Ferguson case had anything to do with what we were doing in 1978. Since the Ferguson case we have a problem that required an amendment.
The minister has come in here with an amendment that imposes his own narrow philosophical views on the entire province from Cornwall to Kenora and from Toronto to Winisk. That is exactly what the minister is doing, imposing his own views of what is proper and what is appropriate with respect to the disclosure of nonidentifying information. He is standardizing the practice for the entire province and he is ramming it down our throats.
There is no such thing as a tradition in this province of limiting information to health matters. That is complete, arrant, nonsensical bunk that has nothing to do with the way the 1967 Child Welfare Act was interpreted and nothing to do with what we were trying to do in 1978. I think that should be a matter of record.
Hon. Mr. Drea: Mr. Chairman, I think it is very unfair to suggest the minister is imposing his will. This piece of legislation reflects the policy and the position of cabinet and of the government caucus. These very matters have been raised twice for decisions in a committee representing all three parties. To suggest now that the minister should not proceed but should stand these down would obviously be an affront to the committee which had to make a difficult decision.
This was not an easy decision to make, but it is one that has been made by a number of people, including the minister, with sensitivity and thoughtfulness. To stand it down for a year, because that is what the member wants and that is what has been suggested --
Mr. McClellan: For a while.
Hon. Mr. Drea: -- to let it go for a while --
Mr. McClellan: Nobody said a year except the minister.
Hon. Mr. Drea: Let us look at the practicalities of it. It is not going to come back in this session if it goes out for study. There are only a couple of weeks left.
Mr. Mackenzie: If it goes through in this way, we will not see change in many years.
Hon. Mr. Drea: Oh, no. Realistically, if we are not going to make a decision now, then we are not going make it for some time. It leaves it in limbo. There is already great variance in this House about what the exact situation is and there is already great variance among lawyers about what the exact situation is. The time has come for a decision. Therefore I am not going to accept the proposition that this be stood down. We have to make a decision.
There are some aspects I want to discuss that I did not discuss before because I was answering very specific questions. Those are the concerns that were expressed by the member for Windsor-Sandwich, the mover of this amendment, that if we are not going to accept this amendment -- and the government is not -- then the suggestion was that probably the reason we are not is that there is a variance in what constitutes nonidentifying information. I am not attempting to put words into anybody's mouth; I read between the lines that this may be the suggestion.
The question of what constitutes nonidentifying information reaches to the heart of a sensitive issue. Let us make it plain that we are not talking about disclosure here; we are talking about nonidentifying information, and that is a difficult area indeed. What may be nonidentifying to one in a situation may lead someone on a trail that was never intended and may cause a great deal of personal impact on an innocent party.
I am not talking about the adopted person; I am talking about the person he finds. I do not think this was ever intended, or intended here, under a definition of nonidentifying information.
The position of the government is that we have moved as far as we can at this time to clarify the sections so that the absolutely necessary nonidentifying information, which is medical, can be provided. There is a suggestion that perhaps the time has come to begin to work on some guidelines for what might constitute, under an administrative practice, nonidentifying information.
On that basis, I can give the honourable member -- since I am, on behalf of the government, going to refuse this amendment -- a commitment that I would like to see a legislative committee, with proper advice, in the very near future begin deliberating or working together with some of the legislative counsel or ministry solicitors to try to work out an administrative practice in which there would be definitions and an expansion of nonidentifying information that would take into account two things.
The first is the rights of adoptive parents. I am not going to defend the rights of adoptive parents; I do not think I need to. I do not think adoptive parents regard their children as chattels. I find that repugnant. It may be a philosophical idea, but I do not think it has much credibility.
9:40 p.m.
After all, adoptive parents have come forward at a particular time in their lives, have bared themselves to public scrutiny, unlike the other kind of parent in our society, have told all, have been scrutinized and have been inspected, and then a decision has been made. They have also agreed to share their family life to the best of their ability with a child. They have given that child a home, and they deserve a little bit more than the back of one's hand and to have it suggested that somehow they are talking about ownership. That is not true at all. It may be a philosophical thing, but I do not think it holds water.
The government is going to reject this amendment. To pause, as has been suggested, would perpetuate what in my view is an intolerable situation where there are great variances. If there are matters that go to court, then so be it. It would not be the first or the last time that legislation passed in this House has gone to the courts. Having had experience with some of that legislation, I suggest the courts want the legislation passed before they peruse it. On that basis, on behalf of the government, I am going to reject this amendment.
The Acting Chairman: All those in favour of Mr. Wrye's amendment will please say "aye."
All those opposed will please say "nay."
In my opinion the nays have it.
Vote stacked.
On section 158:
The Acting Chairman: Mr. Wrye moves that section 158 be amended by adding thereto the following subsections:
"(6a) Where the director receives an application made under subsection 4 and determines that the applicant's birth parent or the adopted child whose birth parent is the applicant, as the case may be, is not named in the register but has attained the age of 18 years, the director shall seek to locate that person and advise or have a society advise him or her of (a) the fact that the applicant has applied to be named in the register and (b) his or her own right to apply to be named in the register.
"(6b) Subsection 6a does not apply where the applicant or adopted child whose birth parent is the applicant, as the case may be, was adopted before the day this section comes into force."
Mr. Wrye: Mr. Chairman, this amendment speaks to the current voluntary disclosure register, which is a passive register. It moves to make it an active register but does not in any way -- this was suggested in committee; so I want to deal with it -- tamper with the current matter of three-party consent for what is known as a reunion. That matter is the subject of a further amendment I will be placing at the appropriate time.
I want to make it very clear that this matter simply speaks to the adoption register, which right now is passive, as members of the House may know. That means an adult adoptee or a birth parent may sign the register at any time, but until both parties have signed the register and no attempt is made to find the other party, matters stay in limbo and the matter cannot be moved forward.
This amendment suggests that if one party signs the register at any point, a director will seek out the other party. As members probably know, this more-active register is present in other provinces. It has worked. It is a very sensitive matter, but it has been dealt with sensitively in other provinces, and I am quite convinced we can do so in Ontario.
Subsection 158(6b) speaks to the matter of retroactivity. Once again because of our sensitivity, we have given the matter a great deal of thought. We have not made this matter retroactive. I will acknowledge that there is a direct correlation between this and what will happen later.
I think an active register is appropriate. As I said, it is working in other provinces. It will begin to facilitate the reunion process that very often all parties would desire if one or another party knew about it.
I think it is an appropriate step forward. That is what we are talking about tonight. I would urge its adoption.
Mr. McClellan: Mr. Chairman, we finally get to the controversial section about the disclosure of identifying information. We have already had the debate in some respects.
In 1978 we went through the same debate on the Child Welfare Act. At that time I initially moved an amendment based on the English system, which provides unlimited access to birth identity information with the only proviso being that it take place within a counselling context. That was defeated. Those were the days of minority government, and it was clear that system was not acceptable to a majority of members in the assembly.
I then moved an amendment to establish an active disclosure registry. I have to point out that in those days it was not acceptable to the members of the Liberal Party. We could have passed an active disclosure registry in 1978, but it was vigorously resisted by the Liberal Party in those days. For that reason, it was defeated by a combination of Liberal and Conservative votes.
I then moved to a third fallback position, the voluntary disclosure registry in the 1978 act. I moved that as an amendment to the 1978 act, and it has been carried over in the act before us this evening as section 158. It was the best we could get in 1978. I still regret very much that it was the best we could get in 1978. I think we had an opportunity to establish an active disclosure registry in 1978.
Under that registry, if one of the three parties of the adoption triangle was registered on the disclosure registry, the ministry would undertake to seek out the other two parties and, if possible, to attempt to facilitate within a counselling context the disclosure of identifying information, with the possibility of some kind of reunion as the next step.
9:50 p.m.
That was a possibility then, and I think it is a possibility now. I do not think it is in any way a threatening move to try to inch forward a little from what we have now. I do not think it is threatening. First of all, we are not talking about retroactivity. We were not talking about retroactivity in 1978, and we are not talking about it in 1984.
Mr. Kerrio: That is how the thing has changed drastically now, and that is why the thing went through.
Mr. Martel: Oh, get off it, Vince. I know how you talked back then.
The Acting Chairman: Order.
Mr. McClellan: We were not talking retroactivity in 1978, and we are not talking retroactivity now.
Mr. Kerrio: You have changed your mind.
The Acting Chairman: Order.
Mr. Kerrio: Just a minute. They made a comment before, and you did not do anything about it.
The Acting Chairman: I have been trying to maintain order.
Mr. Wildman: The member does not know what he is talking about.
The Acting Chairman: Order, the member for Algoma (Mr. Wildman).
Mr. McClellan: I am describing the position I put in 1978. I moved a position in 1978 that was not retroactive, and today the member for Windsor-Sandwich has moved an amendment that is not retroactive.
We are not infringing on the rights of people who have entered into adoption relationships in the past. We are not infringing on anybody's rights. We are not breaking any contracts. We are not breaking faith with anybody in this amendment that is in front of us right now.
All we are saying is that there will be a different set of rules for future adoptions. The different set of rules is that there is a possibility of a disclosure for adult adoptees in certain prescribed conditions. The conditions are still very rigid; they still require the consent of all three parties in the adoption triangle.
Under those conditions, I fail to understand how anybody's rights are infringed or how anybody can argue that somehow they are being unfairly treated or that their status, for example, as adoptive parents, is not being recognized. It is ironic. Both the minister and I are adoptive parents, and we have very different interpretations of the status of adoptive parents.
From a personal point of view, I do not have any problems with the English system. I recognize this is an issue that arouses very strong emotions. We try to respect the feelings of people and come up with a solution that is a balanced compromise. In the search for a balanced compromise, I think the amendment my colleague has moved is fair and reasonable. It does not infringe on anybody's rights, it does not violate any contractual relationships or obligations and, since it applies only to future adoptions as the ground rules for the future, it will not give offence or upset anybody.
I cannot imagine how anybody could be upset in the least about the introduction of this amendment as it would apply to future adoptions. I simply cannot comprehend, and I mean this quite sincerely, how there can be any objections to it.
From the tone of the debate on the previous section, it appears the minister has made up his mind and is not prepared to move. I hope we can move forward on this.
To summarize, I believe it has to do with the essential quality of the adoptive process, that it be based on openness and honesty. Nobody should have any feelings of shame, unease or guilt. Nobody should have any sense that there is something slightly unnatural about being adopted or that there is something shameful or embarrassing about the adoptive process, because there is not; it is as completely natural a process of parenthood as being a birth parent, and the parental relationships are exactly the same.
We should not build restrictions into our laws in the name of safeguards that somehow convey the idea that there is something wrong, shameful, upsetting, murky, cloudy or secretive about the process and that when somebody reaches adulthood he does not have the right, if he so desires, to try to come to terms with his own identity.
Interjections.
Mr. McClellan: It is pathetic, but I guess that is the climate we are dealing with.
Hon. Mr. Drea: Mr. Chairman, I sympathize with the last remark of the honourable member. It appears we have all had our problems tonight -- some more than others.
The fundamental reason for this is that it is all very easy to suggest that there should be no deep-set emotional feelings in the adoptive process. Perhaps that is the ultimate, and perhaps some day it can be achieved, but right now that is not true.
Quite often one of the conditions that the person who is giving up the child wants is anonymity. While this does not automatically infringe upon that anonymity, none the less the prospect of a social worker at the door some time down the road is not exactly playing by the rules.
As members know, with the registry now there is full counselling. The adoptive parent, the birth mother and so forth are consulted; they put their names on. If at a future time the adopted child wants any information, it can be obtained.
The fundamental difficulty is that the birth parent in particular does not want a search of her identity. If she wanted to be searched out, all she had to do under today's rules was to put her name on the register. She has chosen not to; she has been fully aware of what it means.
To do this, quite frankly, may reopen and be very detrimental to one of the three people involved in the whole process. One has to look at the rights and the wellbeing of all three parties in the process, and that is why the government is not going to accept this amendment.
Mr. Kerrio: Mr. Chairman, I would like to make a comment regarding this particular part of the bill because it seems to be the most important part of the bill. It is certainly a very serious matter we are discussing tonight.
I would like to address myself to my colleague's amendment, and I would like to straighten out a little bit of difference of opinion regarding our position in this matter.
While there has been a very simplistic --
Mr. Wildman: And after that?
Mr. Kerrio: I did not interrupt, except when the member started talking about --
The Acting Chairman: Order.
Mr. Kerrio: I am saying that our position is our position, and my friend should describe only his. That is what I am attempting to do. If my friend's speakers want to talk about the issue in the amendment, that is fine; but when they start making remarks about our position, which they know nothing about, I must tell them they are absolutely wrong.
At this juncture, I would like to say that the amendment that is being put now is an amendment that deals with the future. As I recall, the amendment as it was discussed before was going to reach back, it was going to have retroactivity; it was a situation that I for one could not live with. I can live with this amendment.
10 p.m.
The simplistic description of adoptions that was given by the other party's critic was really oversimplistic, because there are some adoptions that are not all that simple. If someone were to have an adoption brought back into his or her life at a later date, it could have a tremendous impact on many families.
As serious as this situation is, at that time I could not support retroactivity because, up to that juncture, we had made a promise to those people who were adopting. A sacred trust was given.
I do not have enough experience to suggest that in the future I would not support the kind of amendment that I will now. I believe one can enter a new contractual arrangement with adoption and adoptees and adoptive parents, but I think it is grossly unfair for those members to describe our position, which has not changed. This amendment says --
Mr. Martel: Nonsense.
Mr. Kerrio: That is the member's opinion and it is not mine. That is why I am standing in my place now saying that on this important matter we are putting an acceptable amendment.
Mr. Martel: Oh baloney.
Mr. Kerrio: The member for Cornwall (Mr. Samis) is not here to support that party's position because he does not believe it. That is exactly the point.
Mr. Wildman: How do you know what his position is?
Mr. Kerrio: I know his position.
The Acting Chairman: Order.
Mr. Breaugh: Mr. Chairman, on a point of privilege.
Interjections.
The Acting Chairman: Order. Okay, I can wait.
Mr. Breaugh: Mr. Chairman, I recognize there are a few vacant benches over here. We all know we have agreed to stack some votes tonight and we have people in committee and in other places so I think that was just a little bit uncalled for.
The Acting Chairman: I would also have to caution the member for Niagara Falls (Mr. Kerrio) that he may have impugned the motive of the member for Cornwall when he suggested the member may have been in one position or another on this matter by his lack of attendance.
Mr. Kerrio: Mr. Chairman, you did not make the same suggestion when all of those members were impugning my motives and that is why I am standing in my place on this issue. I will not accept that and I am making my position very clear now.
The Acting Chairman: Please proceed to make your position as nonprovocatively as you can.
Mr. Kerrio: I am making my position very clear and if they do not interrupt, I shall.
The Acting Chairman: I will do my best if you do your best.
Mr. Kerrio: Thank you very much, Mr. Chairman.
My colleague's amendment makes it very plain that in the future I can support that position. I could not in the past because it was retroactive. The position is clear and unequivocal. I think this matter then should be dealt with in that manner from this day forward.
The Acting Chairman: All those in favour of Mr. Wrye's motion will please say "aye."
All those opposed will please say "nay."
In my opinion the nays have it.
Vote stacked.
The Acting Chairman: Mr. Wrye moves that clause 158(7)(a) of the bill be amended by inserting after "determines" in the first line, "subject to subsection 10."
Mr. Wrye: Mr. Chairman, I have so many of these. This, I believe, is a consequential amendment which comes after a new subsection 10, which I will be proposing in a few minutes.
Hon. Mr. Drea: Mr. Chairman, quite frankly this amendment -- and we are talking about subclause 158(7)(b)(i) -- is far more than consequential.
The Acting Chairman: No, it is clause 158(7)(a).
Hon. Mr. Drea: Mr. Chairman, we really should stand this down for a moment because it really does not have any bearing unless we pass the amendment to subsection 158(10).
The Acting Chairman: Have we unanimous consent to stand it down to the appropriate section?
Agreed to.
The Acting Chairman: Mr. Wrye moves that subclause 158(7)(b)(i) of the bill be amended by inserting after "order" in the third line, "if the adoption order was made before the day this section comes into force."
Mr. Wrye: Mr. Chairman, as the minister pointed out, this is hardly a consequential amendment. It provides on a nonretroactive basis for two-party consent alone. It removes from the consent provisions the rights of adopting parents to be party to a consent. Also, as the member for Bellwoods said in the earlier debate on the active registry, it does so without breaking faith with the past.
I know this is an emotional issue. However, I believe very firmly that the matter of three-party consent is inappropriate in 1984. With all due respect to adopting parents, for whom I have a great deal of respect, I believe the right of an adult adoptee to effect a reunion and to receive identifying information should not be infringed upon by an adopting parent.
I believe three-party consent could on occasion cause very unnecessary emotional hardship between the families. Where an adult adoptee may choose to effect a reunion, he or she may be at the point of being able to do so and yet may have that stopped. When he or she approaches the adopting parents and says, "I have a chance to meet my birth parent. Will you agree to that meeting? Will you agree to the release of the identifying information?" the adopting parents could say no.
I accept that for adopting parents it may be a very difficult moment. However, surely if we give adopting parents the final veto, as it were, it is a veto I believe is inappropriate. Our amendment will overcome that problem, will change that situation. However, it will not do so on a retroactive basis.
I know for groups such as Parent Finders Inc, this will be a matter of some disappointment. Clearly they would want it on a retroactive basis. However, we have discussed the matter in our caucus. Our position today is consistent with that in committee put by myself and my colleagues the member for Kitchener-Wilmot (Mr. Sweeney) and the member for Kent-Elgin (Mr. McGuigan).
We do not believe we can break faith with those adopting parents who believe there is a contract, spoken or unspoken, written or unwritten. Therefore we would propose this take place starting after the proclamation of the act. As the member for Windsor-Riverside brought to our attention earlier in the debate, this matter would begin to take effect, in virtually all cases, some 18 years down the road -- some time after the year 2000. This would not be so in all cases, because of older adoptees, but in most cases.
Mr. McClellan: I do not intend to repeat an argument I have made a number of times, as I think we are trying to complete the bill this evening. However, I will again say simply I do not believe adult adoptees should be subject to the veto of their adoptive parents. I think this is totally inappropriate. I support the amendment for that reason.
10:10 p.m.
Hon. Mr. Drea: Mr. Chairman, we felt throughout the discussions and debates there is three-party consent: the adopting parents, the birth parent or parents, and the adopted person. We are not going to accept this amendment. I hope we will get to the next one with some despatch because I am prepared to accept part of that.
The Acting Chairman: Mr. Wrye moves that subclause 158 (7)(b)(i) be amended by inserting after "order" in the third line, "if the adoption order was made before the day this section comes into force."
All those in favour of the amendment will please say "aye."
All those opposed will please say "nay."
In my opinion the nays have it.
Vote stacked.
The Acting Chairman: The next one I have is an amendment by Mr. Wrye to subsection 158(10).
Mr. Wrye moves that subsection 158(10) be deleted and the following substituted therefor:
"(10) Where the director determines that the applicant's birth parent or the adopted child whose birth parent is the applicant, as the case may be, is deceased, the director may release information under clause 7(c) or (d) although the conditions set out in clauses 7(a) and (b) are not satisfied."
Mr. Wrye: Mr. Chairman, this amendment is, in a sense, consequential to an earlier amendment to section 158. However, it can stand alone, and I have some understanding that the minister is prepared to go for it.
Hon. Mr. Drea: We are prepared to accept this if three words are added in the last line, "and subclause 7(b)(ii)," which in effect means that where there is a death, regardless of whether the deceased person was on the register or not, he or she is no longer in the picture.
I think the intent of the member's amendment is that where there is a death, there has been an argument that the person blocks anything beyond the grave. The way the clause is written now, I think what the member is trying to amend is the fact that, if the person is on the registry, his death does not block anything. What he wants to do is to make it whether they are on the registry or not. That is what we are prepared to do, and it will be done with the addition of those three words.
We will accept that amendment. In addition, if the member is satisfied with that, if he would kindly come back to the clause that was stood down, clause 158(7)(a), the consequential one will require that as well.
Mr. Wrye: I am just seeking clarification from the minister. What words does he want to add?
Hon. Mr. Drea: I want to add in the second last line, "and subclause 7(b)(ii)."
Mr. Wrye: " ... although the conditions set out in clauses 7(a) and subclause 7(b)(ii)"?
Hon. Mr. Drea: Right. " ... are not satisfied."
Mr. Wrye: It is acceptable.
Hon. Mr. Drea: Then we will accept the amendment.
Mr. Wrye: I will accept the suggestion, Mr. Chairman.
The Acting Chairman: Mr. Wrye has reworded his amendment. Is the House familiar with the change to the amendment?
Motion agreed to.
Hon. Mr. Drea: Mr. Chairman, perhaps the member will once again move the stood-down amendment because it is required.
The Acting Chairman: Mr. Wrye moves that clause 158(7)(a) of the bill be amended by inserting after "determines" in the first line "subject to subsection (10)."
Motion agreed to.
Hon. Mr. Drea: Mr. Chairman, if we could have your indulgence for another couple of minutes, there are three technical amendments required in connection with Bill 149, which we commenced with this evening. They are related to that bill when it comes before the House and its impact on Bill 28 for the three months preceding the proclamation of this bill.
On section 159:
The Acting Chairman: Mr. Gillies moves that section 159 of the bill be amended by striking out "and" at the end of clause (d), by adding "and" at the end of clause (e) and by adding thereto the following clause:
"(f) A subsidy paid by an approved agency or by the minister to an adopting parent or to a person with whom a child is placed for adoption."
Motion agreed to.
Section 159, as amended, agreed to.
Sections 160 to 195, inclusive, agreed to.
On section 196:
The Acting Chairman: Mr. Gillies moves that clause 196(e) of the bill be amended by striking out "voluntary" in the first line and inserting in lieu thereof "temporary."
Motion agreed to.
Section 196, as amended, agreed to.
Sections 197 to 219, inclusive, agreed to.
On section 220:
The Acting Chairman: Mr. Gillies moves that clause 6a(b) of the Ministry of Community and Social Services Act, as set out in section 220 of the bill, be struck out and the following substituted therefor:
"(b) any other person who is a crown ward under part III, child protection, of the Child and Family Services Act, 1984, or the Training Schools Act or held in a place or facility designated as a place of secure custody or as a place of open custody under section 24 of the Young Offenders Act (Canada) or as a place of temporary detention under subsection 7(1) of that act."
Motion agreed to.
Section 220, as amended, agreed to.
Hon. Mr. Drea: I am sorry if I inadvertently misled the House. The amendment to section 159, the matter of the subsidy paid to the approved agency, does not pertain to Bill 149. We wanted to prohibit the practice of buying a baby, but the draftsmanship was too tight and it would have precluded any type of payment, the normal payment, in connection with an adoption. I want to make it clear that amendment does not have any reference to Bill 149.
Sections 221 to 230, inclusive, agreed to.
10:20 p.m.
The committee divided on Mr. Wrye's amendment to subsection 157(2), which was negatived on the following vote:
Ayes 30; nays 45.
Section 157 agreed to.
The committee divided on Mr. Wrye's amendment to section 158, which was negatived on the same vote.
The committee divided on Mr. Wrye's amendment to subclause 158(7)(b)(i), which was negatived on the same vote.
Section 158, as amended, agreed to.
Bill, as amended, ordered to be reported.
On motion by Hon. Mr. Wells, the committee of the whole House reported one bill with certain amendments.
The House adjourned at 10:34 p.m.