Draft Bill for the Act to amend the Civil Code and - Ministère de la ...

Draft Bill for the Actto amend the Civil Code andother legislative provisionsas regards adoptionand parental authorityConsultation PaperMinistère de la Justice du QuébecOctober 2009

Draft Bill for the Actto amend the Civil Code andother legislative provisionsas regards adoptionand parental authorityConsultation PaperMinistère de la Justice du QuébecOctober 2009

Avant-projet de loi modifiant le Code civil et d'autres dispositionslégislatives en matièred'adoption et d'autorité parentaleThis document can be accessed on the website of Ministère de la Justice : www.justice.gouv.qc.ca.Legal deposit – 2009Bibliothèque et Archives nationales du QuébecLibrary and Archives CanadaISBN: 978-2-550-57486-6 (print version)ISBN: 978-2-550-57487-3 (PDF version)© Government of Québec2

Document de consultationForewordThe Québec government has tabled the Draft Billfor the Act to amend the Civil Code and otherlegislative provisions as regards adoption andparental authority in the National Assembly. Thegovernment’s aim is to adapt the law to match thenew social and family situations in which adoptiontakes place, in order to provide a better responseto the current needs of children in Québec.All Quebecers are invited to express their views onthis key topic during the parliamentary commissionhearings that will begin on January 13, 2010.Kathleen WeilMinister of Justice and Attorney General of QuébecQuébec, October 20093

Avant-projet de loi modifiant le Code civil et d'autres dispositionslégislatives en matièred'adoption et d'autorité parentale4

Avant-projet de loi modifiant le Code civil et d'autres dispositionslégislatives en matièred'adoption et d'autorité parentale6

Consultation PaperIntroductionThe goal of this Consultation Paper is to explainthe new rules that will apply to adoptions if the Actto amend the Civil Code and other legislative provisionsas regards adoption and parental authority ispassed.The Consultation Paper focuses, in particular, on• the confidentiality of adoption files;• open adoption;• adoption in which the pre-existing bond offiliation is not dissolved;• judicial delegation of parental authority.The new rules are not intended to diminish theimportance of full adoption. Full adoption willcontinue to play a fundamental role as one of theoptions available in Québec, by meeting the needsof children for whom a new filiation must be establishedthat does not maintain significant bondswith their original family. Full adoption will remainthe most appropriate model for a large number ofchildren. However, since this model alone cannotmeet the needs of all children in Québec, the newforms of adoption will be introduced to increasethe range of options available.The rules for open adoption and the rules governingthe confidentiality of adoption files will apply to alladoptions, whether they take place within Québecor internationally, subject to the changes considerednecessary in the case of international adoptions.Adoptions in which the pre-existing bond of filiationis not dissolved will only be possible when theadoption takes place within Québec.The goal of this Consultation Paper is to stimulatediscussion about the proposed rules, which arenot yet in effect. Changes to the rules can still bemade before they are presented in the form of alegislative Bill.7

Avant-projet de loi modifiant le Code civil et d'autres dispositionslégislatives en matièred'adoption et d'autorité parentale8

Consultation Paper1 New rules governing theconfidentiality of adoptionfiles1.1 Who will be affected by the new rules?The new rules will apply to adopted persons, originalparents and adoptive parents in connectionwith adoptions pronounced after the new rulescome into force.1.2 Will the new rules affect adoptionspronounced before the rules come intoforce?No. The current rules governing the confidentialityof adoption files will continue to apply to adoptionspronounced before the new rules come into force.The current rules will also continue to apply tochildren who have not yet been adopted, but forwhom a consent to adoption was given or a declarationof eligibility for adoption was made beforethe new rules came into force. The current ruleswill continue to apply to the original parents ofthese children.1.3 New rules concerning adoptedpersons who wish to identify or find theiroriginal parentsUnder the new rules, will adopted persons beentitled to obtain information that will allowthem to identify or find their original parents?Yes, except if the original parents have registered aveto to prevent this.Adopted children under the age of 14 must, in addition,have obtained the consent of their adoptiveparents before being given access to the information.What is a veto?A veto is a document registered by the originalparents to prevent• the disclosure of their identity;• contact of any kind.Identity disclosure vetoThe original parents will be able to register anidentity disclosure veto to prevent their adoptedchild from obtaining information that allows themto be identified.Contact vetoThe original parents will be able to register a contactveto to allow their adopted child to receive all theinformation contained in the adoption file, includinginformation allowing them to be identified, butalso to state that they refuse to be contacted bytheir adopted child.What ensures that an adopted person willcomply with a contact veto?Dissuasive measures will be prescribed by law,including a fine to punish adopted persons whofail to comply with a contact veto and who contacttheir original parents. The amount of the fine willbe sufficient to ensure that adopted personscomply with the contact veto.9

Draft Bill for the Act to amend the Civil Code and other legislative provisions as regardsadoption and parental authorityIf the original parents register an identity disclosureveto or contact veto, does this mean thatthe adopted child will receive no informationabout his or her original parents?No. Original parents who register a veto will beencouraged to provide• a summary of their family history;• a summary of their medical history;• their reasons for registering a veto.1.4 New rules for original parents whowish to identify or find their adoptedchildUnder the new rules, will the original parentsbe able to obtain information allowing them toidentify or find their adopted child?Yes, on two conditions:• the adopted child must be aged 18 or over;• the adopted child must not have registered a veto.If no veto has been registered, the youth centrewill contact the adopted child to obtain his or herconsent, and to give him or her an opportunity toregister a veto. This additional step is necessaryto protect the rights of adopted persons who areunaware that they have been adopted.What is a veto?Adopted persons will be able to register a veto toprevent• the disclosure of their identity;• contact of any kind.Contact vetoAdopted persons will be able to register a contactveto allowing their original parents to receive allthe information contained in the adoption file, includinginformation that allows an adopted personto be identified, but also to refuse all contact withtheir original parents.What ensures that original parents will complywith a contact veto?Dissuasive measures will be prescribed by law, includinga fine to punish original parents child whofail to comply with a contact veto and who contacttheir adopted child. The amount of the fine will besufficient to ensure that original parents complywith the contact veto.Will people wondering whether they wereadopted be able to ask someone apart fromtheir adoptive parents?Yes. Adopted persons aged 14 or over will be ableto contact the Director of Youth Protection (DYP)directly to ask whether they were adopted.If a person is unaware that he or she wasadopted, will the DYP be able to release theinformation?Yes. If the original parents make a request to findtheir adopted child aged 18 or over, as permittedby law, the DYP will be able to reveal to theadopted child that he or she was adopted, andinform the adopted child of his or her right toregister an identity disclosure veto or contact veto.Identity disclosure vetoAdopted persons will be able to register an identitydisclosure veto to prevent their original parentsfrom obtaining information allowing them to beidentified.10

Consultation PaperFor this reason, it is advisable for adoptive parentsto let their child know that he or she was adopted,at a time they consider suitable.Do adopted persons always need to registera veto to prevent their original parents fromobtaining information about them?Adopted persons under the age of 18Adopted persons under the age of 18 do not needto register a veto, because their original parentswill not be able to obtain information allowingthem to be identified or contacted before theyreach the age of 18.Adopted persons aged 18 or overIf no veto has been registered, the DYP will contactthe adopted person to obtain consent or to givethe adopted person an opportunity to register anidentity disclosure veto or contact veto to blockcontact by the original parents.1.5 New rules governing the disclosureof identity following the death of theperson whose identity is soughtWhat happens if the original parent has diedwhen an adopted child makes a request toobtain information to identify or contact theoriginal parent?The answer depends on the situation:• if the original parent had not registered a veto, theparent’s identity may be obtained immediately;• if the original parent had registered a veto, theparent’s identity may be obtained two years afterthe parent’s death, except if the file containsreasons that justify an extension of the veto. Thetwo-year period gives the family time to grieveand to settle the deceased parent’s successionwithout having to deal with the emotional impactof a request for identity disclosure.What happens if an adopted child, aged 18 orover, has died when the original parent makesa request to obtain information to identify orcontact the adopted child?The answer depends on the situation:• if the adopted child had not registered a veto, thechild’s identity may be obtained immediately,but the adoptive parents must be informed;• if the adopted child aged 18 or over had registereda veto, the child’s identity may be obtainedtwo years after the child’s death, except if thefile contains reasons that justify an extension ofthe veto. The two-year period gives the familytime to grieve and to settle the deceased child’ssuccession without having to deal with the emotionalimpact of a request for identity disclosure.The adoptive family will be notified of the fact thatinformation allowing the adopted child to be identifiedhas been disclosed to the original parents.If, two years after a person’s death, the youthcentre refuses to disclose the person’s identitybecause of reasons contained in the file, is arecourse possible?Yes, an application can be made to the court tosettle the matter.The court will weigh the importance of the opposingrights and interests. The court may decide that thedeceased person’s identity will be disclosed, buton certain conditions. For example, the court maydecide whether or not contact with members of thedeceased person’s family will be permitted.11

Draft Bill for the Act to amend the Civil Code and other legislative provisions as regardsadoption and parental authority1.6 New rules concerning requests forinformation about the medical antecedentsof the original parents of an adoptedpersonWho is affected by the new rules?The new rules concerning requests for informationabout the medical antecedents of original parentsapply to persons adopted before or after the newrules come into force, and to the close relatives ofadopted persons.What are the new rules?At the request of an adopted person, the court willbe able to order that the information be forwardedconfidentially to the medical authorities concerned,if the information is needed to prevent damage tothe health of the adopted person or a close relative.A close relative of an adopted person will also beable to exercise this right if the information isneeded to prevent damage to the health of theadopted person or a close relative.12

Consultation Paper2 An innovation: open adoptionWhat is open adoption?Open adoption is a form of adoption that allowsthe original parents and the adoptive parents toagree to remain in communication with each otherand, possibly, with the adopted child, during theplacement and following the adoption. An opennessagreement must be signed for this purpose.An openness agreement depends not only on thegoodwill of the adoptive parents and original parents,but also on their willingness to give formalconsent to the agreement.What is an openness agreement?An openness agreement is an agreement signed bythe adoptive parents and the original parents, orby the adoptive parents and the tutor or personhaving parental authority. The agreement allowsthe parties• to disclose or exchange information concerningthe adopted child;• to maintain personal relations between themselvesand with the adopted child, during theplacement or after the adoption.For example, the original family and adoptivefamily may agree to exchange letters or photos,or plan a schedule of phone calls and visits.The Director of Youth Protection (DYP) will berequired to inform the original parents, tutor orperson having parental authority, as well as theadoptive parents, of their right to sign an opennessagreement, and of the content and effects of suchan agreement. The DYP must also, if needed,encourage them to consult an advocate or notaryto help them make an enlightened decision.Is the consent of the adopted child necessarybefore an openness agreement is signed?Yes, if the adopted child is aged 14 or over.No, if the adopted child is under 14. However, thechild’s opinion may be taken into consideration.When should an openness agreement besigned?An openness agreement must be signed before theorder of placement or adoption judgment is pronouncedby the court. For the agreement to haveeffect, it must be confirmed by the court when itpronounces the order of placement or adoptionjudgment. The agreement will then have the sameforce as a judgment.What is an order of placement?An order of placement is a step that occurs beforean adoption judgment is made. The court ordersthat the child be placed under the responsibility ofthe adoptive parents for a specified time to ensurethat the child adapts to his or her adoptive family.13

Draft Bill for the Act to amend the Civil Code and other legislative provisions as regardsadoption and parental authorityWhat happens if the people who sign theopenness agreement cannot agree on how toapply it?If the parties to an openness agreement cannotagree on how to apply it, they can request mediation.They can also apply to the court, which willsettle the dispute in the best interests of the child.What happens to the consent to adoption, orderof placement or adoption judgment if the courtamends or cancels the openness agreement?Nothing. The amendment or cancellation of theopenness agreement by the court does not invalidatethe consent to adoption, order or placementor adoption judgment.Can anyone apart from the original parents, tutoror person having parental authority sign anagreement with the adoptive parents?People who are not party to the openness agreement(for example, a member of the extendedfamily) may also, with the consent of the adoptiveparents, agree to remain in communication withthe adoptive parents or the adopted child.However, these agreements do not have the sameeffect as an openness agreement. Each party to theagreement can terminate the agreement withoutthe consent of the other party or parties.14

Consultation PaperWhy establish a new form of adoption?3 An innovation: adoption inwhich the pre-existing bondof filiation is not dissolvedThe law will be amended to allow the courts, incertain cases, to pronounce an “adoption in whichthe pre-existing bond of filiation is not dissolved”.What is an adoption in which the pre-existingbond of filiation is not dissolved?This is a form of adoption that creates a new bondof filiation between the adopted child and theadoptive parents, while maintaining the bond offiliation between the adopted child and his or heroriginal parents. Only the adoptive parents willhave parental authority.ExamplePierre and Chantale are the original parents ofJulie. Julie lives in a foster family with Nathalie, butknows her original parents. Nathalie wishes tobecome Julie’s adoptive mother. Julie wants to beadopted, but also wants to retain her original filiation,which is significant for her and forms part ofher identity. Acting in Julie’s best interest, Nathalietherefore obtains an adoption in which the preexistingbond of filiation is not dissolved. Juliebecomes Nathalie’s child, but retains a bond offiliation with her original parents, Pierre andChantale. Julie’s act of birth will show her originalfiliation, plus her adoptive filiation.The new form of adoption will meet the needs ofchildren for whom full adoption, and the dissolutionof bonds it entails, does not appear to be thebest solution. An adoption in which the pre-existingbond of filiation is not dissolved will ensure thesurvival of bonds that are significant for the childrenadopted, and will make it easier for them to becomepart of their new family without turning their backon the past. The new form of adoption will be useful,for example, when one spouse in a coupleadopts the child of the other spouse, when a childis adopted within the extended family (for example,by the grandparents), or when an older child isadopted.Will adoptive parents still be able to request afull adoption?Yes. The proposed amendments will not abolishfull adoption as it exists today, which dissolves allthe bonds between the adopted child and his orher original parents. Full adoption will still be anoption when it is the legal mechanism that providesthe best guarantees for the needs and rights of thechild concerned.What are the features of adoption in which thepre-existing bond of filiation is not dissolved?In this form of adoption,• the adopted child’s act of birth will contain thechild’s original filiation and adoptive filiation;• the adopted child will keep his or her originalfamily name and will add the adoptive familyname, unless the court decides otherwise;• the adoptive parents will have all the rights andall the duties of parents with regard to the child;however, the original parents will have a subsidiaryduty of support, meaning that they willhave to provide support if the adopted child isunable to obtain support from his or her adoptiveparents.15

Draft Bill for the Act to amend the Civil Code and other legislative provisions as regardsadoption and parental authorityThe DYP will be required to inform all the parties ofthe effects of an adoption in which the pre-existingbond of filiation is not dissolved, compared to anadoption in which the bond is dissolved.Will the original parents be kept informed oftheir adopted child’s progress?Not necessarily. If the original parents want to besure that they will be able to remain in communication,exchange information and maintain personalrelations with the adoptive parents or adoptedchild, they will have to sign an openness agreementbefore the adoption takes place.Will the original parents have any parentalresponsibilities toward the adopted child?No. All the parental responsibilities for the adoptedchild will be taken over by the adoptive parents.However, the original parents will have to providesupport if the adopted child is unable to obtainsupport from the adoptive parents.For an adoption in which the pre-existing bondof filiation is not dissolved, will the child need toconsent to the adoption?Yes. The current rules governing consent by thechild to a full adoption will also govern an adoptionin which the pre-existing bond of filiation is notdissolved. In other words, if the child is aged 10 orover, the adoption can only take place with thechild’s consent. However, the court has discretionto pronounce an adoption even if the child refusesto give consent, except if the child is aged 14 orover.16

Consultation Paperperson of all rights and duties with respect to achild, except the obligation to provide support andthe right to consent to adoption.The bond of filiation between the parent and thechild is not broken in such a case.4 An innovation: judicial delegationof parental authorityWhat is parental authority?Parental authority consists of a series of rights andduties that parents have toward their minor children.More specifically, the parents have rights and dutiesrelating to the custody, supervision and educationof their children. They must feed them, supportthem and ensure their health and safety. Parentalauthority is exercised jointly by the father andmother.Because of their parental authority, parents havethe power to make all the necessary decisions toensure the wellbeing of their children until theyreach the age of 18.Currently, can parental authority be delegatedcompletely?No, only the custody, supervision or education of achild may be partially and temporarily delegated.What is the judicial delegation of parentalauthority?The judicial delegation of parental authority allowsone parent to share parental authority over a childwith a spouse who is not the father or mother ofthe child. It also allows the delegation to anotherThe judicial delegation of parental authority willoffer an alternative to adoption in certain situationswhen, in the child’s best interests, a delegation ofparental authority offers a better solution than achange in filiation.ExampleNicole and Patrick are the parents of Sarah. For thelast five years, Nicole has been bringing up herdaughter with the help of her new spouse, Marc.Patrick looks after Sarah from time to time, andshe visits him occasionally. Nicole wants to exerciseher parental authority jointly with Marc, whichwould allow him, for example, to enrol Sarah inschool, consent to medical care for her, etc. Nicolemust submit an application to the court, but mustfirst obtain Patrick’s consent.What are the effects of a judicial delegation ofparental authority?A judicial delegation will allow the parent of a childto share the exercise of parental authority with hisor her spouse. In this case, the consent of the child’sother parent will be necessary.It will also be possible to delegate to another personall of a parent’s rights and duties toward their child.The parent will be deprived of the exercise of allthe rights, and will no longer be able to make decisionsconcerning the child. However, the parentwill still have a duty of support toward the child,and will retain the right to consent to the child’sadoption. Parental authority may be delegated toone of the following people:• the child’s grandmother, grandfather, uncle, aunt,brother, sister, and their respective spouses;• the spouse of one of the child’s parents.17

Draft Bill for the Act to amend the Civil Code and other legislative provisions as regardsadoption and parental authorityA judicial delegation of parental authority will notbe considered as an abandonment of responsibilityand, as a result, will not create an entitlement toapply for a declaration of eligibility for adoption.What effect will decisions by the delegatee havewith regard to third parties?When the delegatee (the person to whom the rightsand duties are delegated) uses parental authorityto make a decision, the decision will be consideredto have been made with the agreement of thechild’s parents.For example, if the delegatee enrols the child inschool, the school principal will be required toaccept the enrolment as if it had been made bythe parents.18

Consultation Paper5 Other amendmentsUnder the new rules, in the event of a disagreement,the court will be able to decide whether or notpersonal relations with an adopted child should bemaintained, and on what conditions. However,before imposing a solution, the court must facilitateconciliation between the parties to help themreach an agreement.In addition, under the new rules, a person who hasplayed a parental role in the life of his or her exspouse’schild will be able to adopt the child inaccordance with the rules governing the variousforms of adoption.19

Avant-projet de loi modifiant le Code civil et d'autres dispositionslégislatives en matièred'adoption et d'autorité parentale20

Draft Bill for the Actto amend the Civil Code andother legislative provisionsas regards adoptionand parental authority