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Document
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P-1380
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File #
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P_9600409
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Institution/HIC
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Ministry of Community and Social Services
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Summary
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NATURE OF THE APPEAL: The appellant submitted a request under the Freedom of Information and Protection of Privacy Act (the Act ) to the Ministry of Community and Social Services (the Ministry). The request was for two specific letters written by an adoption practitioner to the Ministry's adoption unit, concerning the proposed adoption of two children from outside Canada by the appellant and his wife. The adoption practitioner conducted a home study to assess the suitability of the appellant and his wife as adoptive parents. The Ministry responded to the request by denying access to the two letters. This denial was based on the confidentiality provision in section 165 of the Child and Family Services Act ( CFSA ), which prevails over the Act by virtue of section 67(2) of the Act . In particular, the Ministry relies on section 165(5) of the CFSA , which relates to the application of the Act to information about an adoption. The appellant appealed this decision. The appellant already has a copy of one of the letters, and the appeal pertains only to the second letter which is not in his possession. The second letter provides details of a negative reference which formed the basis of the adoption practitioner's recommendation against the adoption. As a result of this recommendation, the adoption did not take place. This office sent a Notice of Inquiry to the appellant and the Ministry. Both parties submitted representations in response to this notice. One of the questions raised in the Notice of Inquiry was whether the parties would consent to an exchange of representations. This had been requested by the appellant, and because the issue of section 165(5) of the CFSA was more related to the general fact situation and its legal ramifications than to the contents of the record, this was raised as an issue in the Notice of Inquiry. In its representations, the Ministry consented to disclosure of its representations to the appellant. The appellant subsequently provided his own consent to an exchange, and each party's representations were then forwarded to the other party. Once this had occurred, both parties submitted further representations, which I have considered in reaching my decision in this order. The only issue to be decided in this order is whether, as a result of section 165(5) of the CFSA and section 67(2) of the Act , the record falls outside the scope of the Act . DISCUSSION: JURISDICTION Sections 67(1) and (2) of the Act state, in part, as follows: (1) This Act prevails over a confidentiality provision in any other Act unless subsection (2) or the other Act specifically provides otherwise. (2) The following confidentiality provisions prevail over this Act: ... 2. Subsections 45(8), (9) and (10), 54(4) and (5), 74(5), 75(6), 76(11) and 116(6) and section 165 of the Child and Family Services Act . [emphasis added] Section 165(5) of the CFSA states as follows: The Freedom of Information and Protection of Privacy Act does not apply to information that relates to an adoption. The appellant submits that because the adoption was not approved, and no adoption ever took place, the record is not "information that relates to an adoption" within the meaning of section 165(5) of the CFSA . The Ministry disagrees with this view. It submits as follows: The intent and reach of [section 165(5) of the CFSA ] is to apply to all information gathered throughout the adoption process, from the initial home study of the adoptive applicant(s) to the legal finalization of the adoption. Adoption is a process rather than just the granting of an adoption order by a court. Applicants enter the process for the sole purpose of successfully adopting a child. The information collected throughout the process is gathered and used exclusively for the purposes of pursuing an adoption and for no other purpose. This includes the home study, which establishes whether the applicant(s) are assessed as suitable candidates for adoption. The provision of references is part of the home study process and they are specific for the purposes of an adoption. The Ministry of Community and Social Services has issued policy guidelines to adoption practitioners regarding the assessment of adoptive applicants. The guidelines state "any negative indications...should be discussed with the informant to assess the validity of the concern." The Ministry expects its approved practitioners to carefully assess whether the negative information is from a credible source and is based on direct knowledge before using such information for assessment purposes. The policy also states that the consent of the informant is required before the negative information and/or identity of the informant can be shared with the applicants. It is intended that this information remain confidential even if an adoption is finalized at a later date. The paramount goal of adoption is to meet the best interests and needs of a child. The purpose of the reference policy is to ensure that the best interests of the child are protected by enabling the adoption practitioner to obtain full and complete information on prospective adoptive parents. It would be very difficult, if not impossible, for persons giving references to communicate candidly about the applicants if there was no confidentiality in situations where negative information may be provided. This would ultimately jeopardize the ability to ensure that an adoption placement would be in the best interests of a child. The arguments presented by the parties raise a significant issue of statutory interpretation. In such a case, it is often useful to begin by analysing the ordinary meaning of the words used by the Legislature. I will begin this exercise by considering several definitions of the word "adoption". Black's Law Dictionary , 5th edition, defines the word in the following way: Legal process pursuant to state statute in which a child's legal rights and duties toward his natural parents are terminated and similar rights and duties toward his adoptive parents are substituted. To take into one's family the child of another and give him or her the rights, privileges, and duties of a child and heir. The procedure is entirely statutory and has no historical basis in common law. Most adoptions are through agency placements. While this definition does refer to adoption as a "process", similar to the approach advocated by the Ministry, the overall impact of the definition suggests that "adoption" actually refers to the completed process, in which the attendant "rights, privileges and duties" are conferred. In my view, therefore, this definition favours the interpretation advanced by the appellant. Another definition is found in The Dictionary of Canadian Law (Deluxe Edition): An act which creates a familial relationship in which the adopted child is in law and fact, treated as the adoptive family's natural child. [emphasis added] This wording again favours the appellant's argument, which looks at "an adoption" as a succinct event that either takes place or does not. In my view, therefore, these definitions support the view that the ordinary meaning of the phrase "relates to an adoption" requires that an adoption has taken place or, at the very least, wi
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Legislation
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Subject Index
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Signed by
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John Higgins
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Published
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Apr 25, 1997
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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