Supreme Court opens debate on adoption records

By Andrew Perez

A decades-long battle to unseal Ontario adoption records will continue in the province amidst a recent decision taken by the Ontario Superior Court to overturn legislation that would open adoption records for adoptees and their birth parents.

Passed in March 2005 by the Ontario government, Bill 183, also known as the Adoption Information Disclosure Act, took effect Sept. 17, 2007, only to be quashed two days later by the Superior Court.

Pat McCarron, president of the Ottawa chapter of Parent Finders, a support group for adoptees and birth parents, says without open adoption records, those looking to reunite families separated from adoption have little hope.

McCarron, an adoptee herself, born and raised in Ottawa, used Parent Finders in the 1990s to reunite with her birth mother. McCarron says upon finding her birth mother’s name, it took seven years for her to build the courage to contact her.

McCarron says the legislation that was struck down in September already provided for a contact veto which would allow an adoptee to track down the name of their birth mother, but bar the adoptee from contacting the mother if that was her wish.

But McCarron says she does not support a disclosure veto, a veto that would allow her birth mother to prevent her from even tracking her name.

“With a disclosure veto, I could potentially be prevented from ever finding out my birth mother’s name, let alone my own name,” says McCarron.

“The right to an identity for the adoptee is stronger than a birth mother’s right to have confidentiality forever,” she says.

McCarron also says the words ‘open records’ lead many to believe the bill would lead to an invasion of privacy, but she says the reality is only the adoptees and the birth mother under this law are entitled to the information.

Michael Grand, a University of Guelph psychology professor, who has long been involved with the Coalition for Open Adoption Records (COAR), says the recent court ruling signals a big step backwards for adoptees and birth parents seeking to get hold of their adoption records.

Grand says the overwhelming majority of adoptees and birth parents favour the legislation because opening adoption records will help them to reconnect with each other after years of being separated. But he says the small minority who oppose the bill have been very vocal.

“Those who oppose the bill have argued it is a breach of privacy under the constitution – to add clarity to the argument though, they’re not talking about privacy, but anonymity,” says Grand.

Grand says the provisions of Bill 183 do not breach privacy.

He says the few who oppose the bill have intentionally ignored the psychological harm that is done to those who cannot track their birth parents due to privacy concerns.

“The pain of being prevented from tracking down one’s birth mother is more than some people can bare,” Grand says.

But Clayton Ruby, a Toronto-based civil liberties lawyer, is leading the fight for the right of birth parents and adoptees to remain anonymous.

In September, Ruby successfully launched a constitutional challenge of the adoption law on behalf of four Ontario residents, arguing the bill was a breach of privacy.

When contacted at his Toronto law firm, Ruby said while only a small minority oppose opening adoption records, that minority must be protected at all costs.

“This is a minority-rights issue, and the Constitution’s very purpose is to protect minorities,” he said.

“That’s why we have a Constitution; this law, if passed, would have been unconstitutional and so it’s inevitable that it would eventually be struck down.”

But birth mothers such as Marilyn Churley, see the bill differently. Churley, a former NDP MPP and long-time champion of changing Ontario’s adoption laws, echoes McCarron’s sentiments.

Churley, who gave her child up for adoption in the late 1960s, eventually found her child through private means.

She says this experience led her to fight for adoption law reform in the Ontario legislature throughout the 1990s, both in government and in opposition.

She says if adoption records had been open to adoptees and their birth parents throughout the 1990s, she would have had less trouble reuniting with her son.

But Churley says it is now up to people to lobby the Ontario government to appeal the case.

“We believe this bill was not a breach of the charter, that protections were put into place, and that we don’t believe that it is right to continue discriminating against still many hundreds of people,” says Churley. “Nobody likes to see a church come to an end,” he said. “But I do take comfort out of the fact that the congregation is moving on and will continue as part of Westminster church.”

When Erskine members agreed to close the church, they began looking at west-end churches for amalgamation. According to Ball, the majority of Erskine’s congregation already live in the west-end, and had been travelling to Erskine because of the ties they felt to the church. They decided on Westminster, a congregation of about 100 people with a strong youth membership and focus on community and ministry development. Erskine was welcomed with open arms.

“There is a group of people coming into our midst with specific needs,” says Ball. “They are grieving. They are in mourning over the loss of their building and everything that went on there. We need to reach out and make them feel they are a part of this church.”

To help integrate the Erskine community, all worshippers wore name tags on Oct. 28 when the first amalgamated service was held at Westminster. Prior to amalgamation, there were worship exchanges, pot-luck dinners and other social events meant to help the congregations get to know each other.

During the service, the Bible and cross that were brought from the sanctuary at Erskine after the final service were laid on the communion table at Westminster.

“We wanted to say, ‘This is your home,’” Ball says.

Erskine’s congregation can be traced back to a group of six men who began praying together in 1870, officially becoming a part of the Canada Presbyterian Church in 1875. As the congregation grew in the late 19th century, two church buildings were erected to accommodate the swelling numbers. The second building, at the corner of Elm and Preston streets, was destroyed in the great fire of Ottawa in April 1900.

The current Erskine church, with its impressive sanctuary and beautiful stained-glass windows, was rebuilt in 1905.

Many members of the Erskine congregation were married in the church on Bronson, and had their children baptized there or were even baptized there themselves.

Rev. Tom Sherwood, ecumenical chaplain at Carleton University and an ordained minister in the United Church, says he understands the emotional attachments to sacred spaces and rites of passage.

However, he says that the recent church closures are sensible, and indicate a shift in demographics more than an overall decline in church attendance.

Several churches have been shut down in the past year leading up to the Erskine closure. St. Brigid’s Roman Catholic Church on St. Patrick Street was ordered closed and deconsecrated in September, after parishioners determined to keep it open lost a legal battle with the Archdiocese.

The 184-year-old St. James Anglican Church in Hull, considered to be the oldest church in the Ottawa Valley, was deconsecrated in March after attendance dwindled to fewer than a dozen patrons each week.

And last year, First United Church, one of the country’s oldest congregations, sold its building on Kent Street to the Ottawa Chinese Heritage Foundation and moved in with the All Saints Anglican Church in Westboro.

Sherwood points out that the churches being forced to close because of low attendance numbers and high maintenance costs are old buildings in the downtown core, while congregations in the suburbs are exploding, even having to erect new buildings to house their worshippers.

“The buildings are in the wrong place – the people are out there,” Sherwood says. “There has been a demographic shift out of the inner city and into the suburbs. The infrastructure of the nineteenth and twentieth century needs to go up for sale; there are no young people there to continue it. It’s not just decline.”

Both Sherwood and Ball say church closures are reasonable in the spirit of stewardship – the rational use of resources to maximize the work the church can do.

“When new churches are built, they don’t build something like Erskine,” Ball reasons. “They build a space that is multi-purpose and multi-functional. Erskine is awe-inspiring, but the cost of upkeep is substantial. Even a larger congregation wouldn’t build something like that now. So we need to think, is this a good use of the church money, paying to maintain these old buildings?”

The Presbytery of Ottawa has yet to decide what to do with Erskine church, and says a decision will take time. There has been speculation that other congregations may want to purchase the building.

So far, the amalgamation of the two congregations has been successful. Though it will take time, Ball says that they will not be two separate groups forever.

“There will be a point where we will be united,” he says. “In spite of huge changes in their lives, we are seeing smiles. People are overwhelmed and delighted to find there is a place for them here.”