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The Adoption and Consequential Amendments Act

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S.M. 1997, c. 47

THE ADOPTION AND CONSEQUENTIAL AMENDMENTS ACT


Table of Contents

(Assented to June 28, 1997)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

INTERPRETATION AND ADMINISTRATION

Definitions

1         In this Act,

"adoptee" means a person who was adopted;

"adoption agency" means an adoption agency referred to in section 9; (« agence d'adoption »)

"adoptive parent" means a person who has adopted a child; (« père ou mère adoptifs »)

"adult adoptee" means a person who was adopted and is now over the age of majority;

"agency" means a child and family services agency or an adoption agency; (« agence »)

"birth father" means the man who

(a) is a child's biological father,

(b) acknowledges that he is the biological father of a child, or

(c) is named by the birth mother as the child's biological father; (« père naturel »)

"birth mother" means a woman who gave birth to a child; (« mère naturelle »)

"birth parent" means a birth mother or a birth father;

"central adoption registry" means the registry continued under section 7; (« registre central d'adoption »)

"child" means a person under the age of majority; (« enfant »)

"child and family services agency" means

(a) a child and family services agency incorporated under The Child and Family Services Act,

(b) a regional office of the department of the executive government of the province of which the minister charged with the administration of The Child and Family Services Act is the chief administrative officer,

(c) a corporation created pursuant to an agreement under subsection 6(14) of The Child and Family Services Act, and

(d) an extra-provincial agency; (« office de services à l'enfant et à la famille »)

"children's advocate" means the children's advocate appointed under The Child and Family Services Act; (« protecteur des enfants »)

"court" means the Court of Queen's Bench of Manitoba (Family Division); (« tribunal »)

"director" means the director referred to in section 4; (« directeur »)

"extended family" includes, in addition to the persons in the definition of "family", aunts, uncles and cousins of a birth parent, a spouse of any of those persons, and any unmarried adult who is cohabiting in a relationship of some permanence with any of those persons of the opposite sex who is an unmarried adult; (« famille élargie »)

"extra-provincial agency" means

(a) the minister or another official of any government of a province or territory of Canada charged with the administration of the adoption of children in that province or territory, or

(b) any other organization or government official outside of Manitoba, having the right under the laws of a province, state or country to provide adoption services; (« agence extraprovinciale »)

"family" means a child's parents, step-parents, siblings, grandparents, aunts, uncles, cousins, any person in loco parentis to the child and the spouse of any of those persons;  (« famille »)

"foster parent" means a person, other than the child's parent, who provides care and supervision to a child who was placed in the person's home by a child and family services agency other than for the purpose of adoption; (« parent d'accueil »)

"guardian" means a person, other than the child's parent, who has been appointed guardian of the person of the child by a court of competent jurisdiction; (« tuteur »)

"homestudy" means an assessment process between a prospective adoptive parent and a person providing adoption services for an agency which results in a written report as to the suitability and capability of the prospective adoptive parent to be an adoptive parent and includes a recommendation of the agency regarding placing a child with the person for the purpose of adoption; (« évaluation »)

"Indian" means an Indian within the meaning of the Indian Act (Canada); (« Indien »)

"master" means a master of the court as defined in The Court of Queen's Bench Act; (« conseiller-maître »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"parent" means a biological or adoptive parent of a child, and includes a person declared to be the parent of a child under Part II of The Family Maintenance Act; (« père ou mère »)

"permanent ward" means a child whose permanent guardian is

(a) the director or a child and family services agency either by

(i) voluntary surrender of guardianship of the child under section 16 of The Child and Family Services Act, or

(ii) an order of the court under clause 38(1)(f) of that Act, or

(b) an extra-provincial agency; (« pupille de l'État »)

"post-adoption registry" means the registry continued under section 108; (« registre postadoption »)

"prescribed" means prescribed by regulation;

"record" means a record of information in any form, and includes information that is written, photographed, recorded or stored in any manner, on any storage medium or by any means, including by graphic, electronic or mechanical means, but does not include electronic software or any mechanism that produces records; (« document »)

"voluntary surrender of guardianship" means a voluntary surrender of guardianship under section 16 of The Child and Family Services Act. (« renonciation volontaire à la tutelle »)

Purpose of the Act

2         The purpose of this Act is to provide for new and permanent family ties through adoption, giving paramount consideration in every respect to the child's best interests.

Best interests of child

3         All relevant factors shall be considered in determining the child's best interests, including

(a) the safety of the child;

(b) the child's opportunity to have a parent-child relationship as a wanted and needed member of a family;

(c) the child's mental, emotional, physical and educational needs and the appropriate care or treatment, or both, to meet such needs;

(d) the child's mental, emotional and physical stage of development;

(e) the child's sense of continuity and need for permanency with the least possible disruption;

(f) the child's cultural, linguistic, racial and religious heritage;

(g) the views and preferences of the child where they can reasonably be ascertained; and

(h) the effect upon the child of any delay in the final disposition of the proceedings.

ADMINISTRATION

Director

4         The director for the purposes of administering this Act is the Director of Child and Family Services appointed under The Child and Family Services Act.

Duties of director

5(1)      Under the control and direction of the minister, the director shall

(a) administer and enforce the provisions of this Act;

(b) advise the minister on matters relating to adoption and adoption services;

(c) license adoption agencies in accordance with the regulations;

(d) advise child and family services agencies and adoption agencies;

(e) ensure the development and establishment of standards of services and practices and procedures for adoption services provided to children and families;

(f) ensure that child and family services agencies and adoption agencies are providing the standard of services and are following the practices and procedures established under clause (e) and by the provisions of this Act and the regulations;

(g) receive and hear complaints from any person affected by the actions of child and family services agencies and adoption agencies;

(h) ensure the development of appropriate adoption placement resources for children; and

(i) perform such other duties as may be required by this Act, the regulations, or the minister.

Inspection powers

5(2)      The director may at any reasonable time enter any premises of a child and family services agency or an adoption agency and make any inspection that is reasonably required for the purpose of determining compliance with this Act and the regulations and in the case of an adoption agency, with any condition of its licence, and, without limitation, the director may

(a) examine, and require the production of, any records of the agency that are relevant for the purposes of the inspection;

(b) require any person who in the opinion of the director is able to give information relating to any matter being investigated by the director

(i) to furnish information to the director, and

(ii) to produce and permit the director to make a copy of any record that, in the opinion of the director, relates to the matter being investigated;

but nothing in this clause abrogates any privilege that may exist because of the relationship between a solicitor and the solicitor's client; and

(c) on giving a receipt for it, remove any record from the premises to make copies.

General powers of director

5(3)      For the purpose of carrying out the provisions of this Act, the director may

(a) conduct enquiries and carry out investigations with respect to matters under this Act;

(b) establish procedures to hear complaints under this Act;

(c) solicit, accept and review reports from individuals or organizations concerned or involved with the adoption of children;

(d) issue written directives to child and family services agencies or adoption agencies; and

(e) do any other thing in accordance with this Act that the minister may require.

Delegation by director

5(4)      The director may, in writing, authorize a person or a child and family services agency to perform any of the director's duties or exercise any of the director's powers and may pay reasonable fees and out-of-pocket expenses to the person or the child and family services agency.

Proceedings re furnishing information prohibited

6         No proceedings lie against a person by reason of his or her compliance with a requirement of the director to furnish information or produce any record, or by reason of answering any question in an investigation by the director.

Central adoption registry

7(1)      The central registry established by the director under The Child and Family Services Act is continued as the central adoption registry.

Information on registry

7(2)      The director shall enter on the central adoption registry

(a) the names of and relevant information about prospective adoptive parents approved by agencies for the adoption of children under Division 1 or 3 of Part 3 of this Act; and

(b) the names of and relevant information about permanent wards who are available for adoption.

Children's advocate

8(1)      The children's advocate shall

(a) advise the minister on matters relating to

(i) the welfare and interests of children who receive adoption services under this Act, and

(ii) adoption services provided or available to children under this Act; and

(b) review and investigate complaints that he or she receives relating to

(i) children who receive adoption services under this Act, and

(ii) adoption services provided or available to children under this Act.

Part I.1 of Child and Family Services Act applies

8(2)       Part I.1 of The Child and Family Services Act applies with necessary modifications to the performance of duties and the exercise of powers by the children's advocate under this section.

Licence required for adoption agency

9(1)      The director may license a corporation to which Part XXII of The Corporations Act applies as an adoption agency in accordance with the regulations.

Appeal to Social Services Advisory Committee

9(2)      A person who is refused a licence or whose licence is suspended, cancelled or not renewed may, within 10 days after receiving notice of the refusal, suspension or cancellation or non renewal, appeal the matter to the Social Services Advisory Committee continued under The Social Services Administration Act.

Action by Social Services Advisory Committee

9(3)      On receiving notice of an appeal under subsection (2), the Social Services Advisory Committee shall, within 30 days, consider the matter and in writing advise the appellant and the director of its decision.

Continuity of adoption services

9(4)      Where the director refuses to renew or suspends or cancels the licence of an adoption agency, the director shall in writing direct a child and family services agency to assume responsibility for the delivery of services to any person receiving services from the adoption agency in accordance with the regulations.

PART 2

GENERAL ADOPTION PROVISIONS

Adult may adopt a person

10        An adult who resides in Manitoba may apply to adopt a person in accordance with this Act.

Child to reside in Manitoba prior to adoption application

11        A child being adopted shall reside in Manitoba with the prospective adoptive parent before an application for adoption is made.

CONSENTS

Consents required for adoption of permanent ward

12        Where the child to be adopted is a permanent ward placed for adoption by a child and family services agency, a judge shall not make an order for adoption unless written consent to the adoption has been given in the prescribed form by

(a) the director who, or the child and family services agency which, has been given permanent guardianship of the child either by voluntary surrender of guardianship or by an order of the court; and

(b) the child, if the child is 12 years of age or older.

Consents required for other adoptions

13        Where the child to be adopted is not placed for adoption by a child and family services agency, a judge shall not make an order for adoption of the child unless written consent to the adoption has been given in the prescribed form by

(a) each person who is entitled to surrender guardianship of a child under section 16 of The Child and Family Services Act; and

(b) the child, if the child is 12 years of age or older.

Effect of consent to be explained

14        Prior to the giving of a consent under clause 12(b) or section 13, the person before whom the consent is executed shall

(a) explain fully the effect of the consent to the adoption to the person considering consenting to the adoption; and

(b) advise the person of his or her right to independent legal advice.

Certification of consents

15         Where The Intercountry Adoption (Hague Convention) Act applies to the adoption and the Central Authority of the State of origin of the child as set out in that Act certifies that consent has been given by a person referred to in section 12 or 13 that certificate is valid for the purposes of those sections in place of the consent.

Time of execution of consent

16        With respect to the consent to the adoption of a child referred to in section 13,

(a) no person shall execute or give consent to the adoption of the child; and

(b)  no person shall take, request or solicit the consent of a person to the adoption of the child;

until at least 48 hours after the time of the birth of the child.

Affidavit of execution of consent

17        An affidavit of execution shall form part of every consent other than one given by the director or a child and family services agency and shall include a statement that the provisions of section 14 have been complied with.

Copy of consent to director

18        Except where an application for adoption of a child is made under Division 4, a copy of the consents required under clause 13(a), or certification of the consents as referred to in section 15, shall be given to the director at least 30 days before the date set for the hearing of the application for adoption, or within such shorter time as a judge or master may allow.

Waiver of parent's consent

19        A judge may dispense with the consent of a person required to consent under clause 13(a), if satisfied there are valid reasons to do so, including that the person

(a) has abandoned or deserted the child;

(b) cannot be located after reasonable attempts have been made to find the person;

(c) is incapable of caring for the child and has been so for a period of time of sufficient duration to be detrimental to the best interests of the child;

(d) while liable to maintain the child, has persistently neglected or refused to do so; or

(e) has not had an ongoing parental relationship with the child and a delay in securing a home for the child would be detrimental to the best interests of the child.

Dispensing with consent of person 12 years of age or older

20        Where the person to be adopted is 12 years of age or older and is unable to understand or give consent, a judge may dispense with the requirement for that person's consent.

Wishes of child under 12 to be taken into account

21        Where the child is under 12 years of age or the child's consent has been dispensed with under section 20, the judge hearing an application under this Act shall, where appropriate and feasible, take into account the wishes of the child.

Withdrawal of consent

22(1)     A person who consents to an adoption under clause 13(a) may withdraw the consent by giving written notice of the withdrawal to the director within 21 days after the date the consent was given.

Child to be returned if consent withdrawn

22(2)     Where a person referred to in clause 13(a) withdraws a consent under subsection (1), the person with whom the child is placed shall return the child to the person who withdraws the consent, whether or not the prospective adoptive parent has commenced court proceedings with respect to the child.

Consent executed outside Manitoba

23        A consent to an adoption given in a jurisdiction outside Manitoba in a form that is valid in that jurisdiction is deemed to be a consent under this Act.

DECLARATION OF PARENTAGE

No placement pending declaration of parentage

24        No child shall be placed for adoption by an agency or the director after the director has been served with notice of an application under Part II of The Family Maintenance Act that a man be declared to be the father of the child to be adopted unless

(a) the application is withdrawn; or

(b) a judge dismisses the application and all appeals from the dismissal have been exhausted.

No adoption pending declaration of parentage

25        A judge shall not make an order for adoption under this Act where the director certifies that an application under Part II of The Family Maintenance Act that a man be declared to be the father of the child to be adopted was served on the director

(a) within 21 days after a consent to the adoption was given under clause 13(a); or

(b) within 21 days after a voluntary surrender of guardianship agreement was signed;

as the case may be, unless the application is withdrawn or dismissed and all appeals from the dismissal have been exhausted.

NOTICE TO BIRTH FATHERS

Notice to birth father

26(1)     Subject to this section, a judge shall not make an order for adoption of a child unless notice of the proposed adoption is given to the child's birth father.

Giving notice

26(2)     Notice to a birth father under subsection (1) shall be in the prescribed form and

(a) where the adoption is under Division 1 of Part 3, shall be served on the birth father by a child and family services agency prior to the signing of a voluntary surrender of guardianship agreement; and

(b) where the adoption is under Division 2, 4, 5 or 6 of Part 3, shall be served on the birth father by the prospective adoptive parent prior to the giving of any consent to the adoption;

Where notice not required

26(3)     Notice to a birth father under subsection (1) is not required where

(a) the birth father signs a voluntary surrender of guardianship under section 16 of The Child and Family Services Act;

(b) the birth father consents to the adoption under clause 13(a); or

(c) the child to be adopted is a permanent ward by court order.

Dispensing with notice of proposed adoption

26(4)     On application, a judge or master may dispense with notice to a birth father, or may direct the manner of effecting service if the judge or master is satisfied that

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

(b) the birth father cannot be located after reasonable efforts have been made to find him.

APPLICATION FOR ADOPTION

Service on person required to consent

27        Where an application is made for an order of adoption under Division 2, 5 or 6 of Part 3, if a judge or master is satisfied that a person required to consent under clause 13(a)

(a) has not in any way been involved in a parental relationship with the child, the judge or master may dispense with service of the copy of the application on that person; or

(b) cannot be located after reasonable efforts have been made, the judge or master may direct the manner of effecting substitutional service of a copy of the application, or may dispense with service.

Surviving person may apply for order of adoption

28(1)     Where a child is placed for adoption in the home of two persons jointly and before an application is made for an order of adoption one of them dies, the surviving person may apply for the order of adoption.

Order in names of surviving and deceased person

28(2)     Where the surviving person applies for an order of adoption, a judge may grant the order of adoption in the names of the applicant and the deceased person, and in that case the child is deemed for all purposes to have been adopted by both the applicant and the deceased person.

Order where one applicant dies

29        Where two persons apply jointly to adopt a child and one of the applicants dies before an order of adoption is made, a judge may grant the order of adoption in the names of both applicants, and in that case the child is deemed for all purposes to have been adopted by both the applicant and the deceased person.

ORDER OF ADOPTION

Order of adoption

30(1)     Where an application for an order of adoption is filed and all the applicable requirements of this Act have been complied with, a judge may, having regard to all the circumstances of the case, make an order of adoption.

Adoption order in prescribed form

30(2)     An order of adoption shall be in the prescribed form and shall not, except as provided in subsection (3), show the surname of the child prior to adoption, but shall identify the child by the birth registration number of the birth record or other identification acceptable to the judge.

Surname of adopted child

30(3)     An adopted child shall, as determined by the adoptive parent, either retain the surname under which the child's birth was registered or be given a surname chosen from the allowable surnames for registering a child's birth under The Vital Statistics Act.

Distribution of order

30(4)     The court shall provide a certified copy of the adoption order

(a) to the adoptive parent;

(b) to the director, except where an order is made under Division 5, 6 or 7 of Part 3;

(c) to the Director of Vital Statistics;

(d) if the adopted child is an Indian, to the Registrar under the Indian Act (Canada); and

(e) if a child and family services agency or an adoption agency provided a report to the court as to the proposed adoption, to that agency.

STATUS OF ADOPTED CHILD

Status of adopted child

31(1)     For all purposes of the law of Manitoba, as of the date of the making of an adoption order,

(a) the adopted child becomes the child of the adoptive parent and the adoptive parent becomes the parent of the adopted child; and

(b) the adopted child ceases to be the child of the person who was his or her parent before the adoption order was made and that person ceases to be the parent of the adopted child;

as if the adopted child had been born to the adoptive parent.

How relationships determined

31(2)     The relationship to one another of all persons, including the adopted child, the adoptive parent, the kindred of the adoptive parent, the parent before the adoption order was made and the kindred of that former parent shall for all purposes be determined in accordance with subsection (1).

Reference in will or other document

31(3)     In any will or other document made at any time before or after the day this section comes into force, and whether the maker of the will or document is alive on that day or not, a reference to a person or group or class of persons described in terms of relationship by blood or marriage to another person shall be deemed

(a) to refer to a person who comes within the description as a result of an adoption; and

(b) not to refer to a person who does not come within the description as a result of an adoption;

unless the contrary intention is expressed by the maker of the will or other document.

Application of section

31(4)     This section applies and is deemed always to have applied with respect to any adoption made under any predecessor Act but not so as to affect,

(a) any interest in property or right of the adopted child that has indefeasibly vested before the date of the making of an adoption order; and

(b) any interest in property or right that has indefeasibly vested before the day this section comes into force.

Exception where adoption by spouse

31(5)     Where the adoptive parent has a spouse who is a parent of the person to be adopted and that parent chooses not to apply for the adoption jointly with the adoptive parent, the relationship of that parent and of his or her kindred with the adopted person shall continue and shall not be altered in any way by the order for adoption.

Exception re prohibited marriages

31(6)     Subsections (1) and (2) do not apply for the purposes of the laws relating to incest and the prohibited degrees of consanguinity for marriage to remove a person from a relationship that would have existed but for those subsections.

Other provisions do not affect right to inherit

31(7)     No provision of this Act other than this section affects a child's right to inherit from his or her parents or kindred.

ADOPTIONS OUTSIDE MANITOBA

Adoptions outside Manitoba

32        An adoption that has, under the law of another province or territory or a jurisdiction outside Canada, substantially the same effect in that other jurisdiction as an adoption under this Act, has the same effect in Manitoba as an adoption under this Act.

OPENNESS AGREEMENTS

Openness agreements

33(1)     For the purpose of facilitating communication or maintaining relationships, an openness agreement may be made in writing between an adoptive parent or a prospective adoptive parent and any of the following:

(a) a birth parent of the child;

(b) if a child and family services agency has permanent guardianship of the child by court order, a member of the extended birth family of the child who is approved by that agency;

(c) any other person who has established a meaningful relationship with the child;

(d) a prospective adoptive parent or an adoptive parent of a minor sibling of the child;

(e) if the child is, or is entitled to be a member of an Indian band as defined in the Indian Act (Canada), a member of that Indian band.

When openness agreement made

33(2)     An openness agreement

(a) may only be made after

(i) consent to the adoption is given by the persons required to consent under clause 13(a),

(ii) a voluntary surrender of guardianship agreement is entered under section 16 of The Child and Family Services Act, or

(iii) an order of permanent guardianship is made under clause 38(1)(f) of that Act;

(b) may include a process to resolve disputes arising under the agreement or with respect to matters associated with it; and

(c) does not affect the legal status of an order for adoption.

Consent of child 12 years and older

33(3)     If the child is 12 years of age or older, the child's written consent to the openness agreement shall be required.

Consideration of child's views

33(4)     If the child is under the age of 12 years, the child's views shall be considered before the agreement is made, where appropriate and feasible to do so.

Copy of agreement to director

33(5)     Where an openness agreement is made, the adoptive parent shall provide a copy to the director, who shall file it on the post-adoption registry.

FINANCIAL ASSISTANCE

Financial assistance for a person adopting a child

34        The director may authorize financial assistance to a person adopting a child, in an amount and under the conditions prescribed in the regulations, where

(a) the child to be adopted has a physical or mental condition which will make caring for that child far more expensive than the care usually provided to a child; or

(b) there are siblings who should be adopted together.

PART 3

CATEGORIES OF ADOPTIONS

DIVISION 1

ADOPTION OF PERMANENT WARD

Placement and adoption of permanent ward

35        This Division applies to the adoption of a permanent ward.

Application for placement

36        Where

(a) a husband and wife;

(b) a man and a woman who are not married but are cohabiting as spouses; or

(c) a single adult;

desire to have a child who is a permanent ward placed in their home with a view to adopting that child, they may make an application to the child and family services agency having jurisdiction in the area where they reside for that purpose.

Homestudy conducted

37        Upon receiving an application under section 36, the child and family services agency shall conduct a homestudy to determine

(a) the suitability of the applicant to be an adoptive parent; and

(b) the capability and willingness of the applicant to assume the responsibilities of a parent towards the child.

Copy of homestudy

38        The prospective adoptive parent is entitled to receive a copy of the homestudy referred to in section 37.

Where applicant suitable

39        Where the child and family services agency determines that an applicant is suitable and capable of being an adoptive parent it shall forward to the director the name of the prospective adoptive parent and a summary of the homestudy for entry in the central adoption registry.

Review by director

40        Where the child and family services agency determines that an applicant is not suitable or not capable of being an adoptive parent, the applicant may request the director to review the matter and the director's decision is final.

Foster parent adoption

41        Where

(a) a child has been placed with a foster parent; and

(b) in the opinion of the child and family services agency having permanent guardianship of the child, the child should be placed for adoption;

the foster parent may apply in accordance with this Division to have the child placed with him or her for adoption.

PLACEMENT OF CHILD

Placement of child

42        A child and family services agency may place a child in the home of a prospective adoptive parent if

(a) the prospective adoptive parent and the child are registered on the central adoption registry; and

(b) the director approves the placement of the child with the prospective adoptive parent.

Manitoba placement preferred

43(1)     A child and family services agency shall attempt to place a child who is a permanent ward for the purposes of adoption first in Manitoba and then elsewhere in Canada, but shall not

(a) place a child outside of Manitoba but within Canada except in accordance with subsection (2); and

(b) place a child outside of Canada except in accordance with subsection (3).

Proposed placement outside Manitoba

43(2)     A child and family services agency may place a child outside of Manitoba but within Canada where

(a) the director approves the placement of the child with the prospective adoptive parent;

(b) the prospective adoptive parent has been approved for placement on the basis of a homestudy completed by an extra-provincial agency in the jurisdiction in which the prospective adoptive parent resides; and

(c) the director determines that the adoption can be legally completed in the jurisdiction where the child is proposed to be placed.

Proposed placement outside of Canada

43(3)     A child and family services agency may only place a child outside of Canada

(a) with the approval of the Lieutenant Governor in Council; and

(b) provided that the requirements in clauses (2)(a) to (c) are met.

Placement following voluntary surrender of guardianship

44(1)     Where guardianship of a child is surrendered under section 16 of The Child and Family Services Act, a child and family services agency, may, subject to the approval of the director place the child with a prospective adoptive parent immediately following the signing of the voluntary surrender of guardianship agreement.

Placement before agreement signed

44(2)     Despite subsection (1), the director may approve the placement of a child in the home of a prospective adoptive parent before a voluntary surrender of guardianship agreement is signed if,

(a) in the opinion of the director, it is in the child's best interests to be placed for adoption without delay;

(b) no person required to sign a voluntary surrender of guardianship agreement is willing or able to care for the child until the agreement is signed; and

(c) each person required to sign a voluntary surrender of guardianship agreement consents in writing to the transfer of the child to the prospective adoptive parent.

Withdrawal of voluntary surrender of guardianship

44(3)     If

(a) a voluntary surrender of guardianship is withdrawn under subsection 16(10) of The Child and Family Services Act; and

(b) the child who is the subject of the voluntary surrender of guardianship has been placed for adoption under this section;

the child and family services agency to whom guardianship was surrendered shall immediately return the child to the person who withdrew the voluntary surrender of guardianship, whether or not the prospective adoptive parent has commenced court proceedings with respect to the child.

Adoption placement agreement

45        When a child is placed by a child and family services agency with a prospective adoptive parent, an agreement in the prescribed form shall be made between the child and family services agency that is the permanent guardian of the child and the prospective adoptive parent, setting out the terms and conditions of the placement.

Date of placement

46        The date on which an agreement under section 45 is made is the date of placement of the child.

Removal of child

47(1)     Where a child is placed by a child and family services agency with a prospective adoptive parent, that agency may remove the child from the prospective adoptive parent's home at any time before an order of adoption is made.

Director may review

47(2)     The prospective adoptive parent may request the director to review the agency's action under subsection (1), and the director's decision is final.

Supervision of placement

48        Where an agreement respecting placement under section 45 has been signed, the child and family services agency having jurisdiction in the area where the prospective adoptive parent lives shall supervise the placement until an order of adoption has been made.

APPLICATION FOR ADOPTION ORDER

Application for adoption order

49(1)     The person in whose home a child is placed for adoption under this Division may, with the written approval of the child and family services agency that is the permanent guardian of the child, apply in the prescribed form to the court for an order of adoption.

Time for making application

49(2)     An application for an order of adoption may be made after the expiration of six months from the date on which the child was placed with the prospective adoptive parent or within such lesser or greater time as the child and family services agency that is the permanent guardian of the child may authorize.

Documents filed in support of application

50        An application for an order of adoption under this Division shall be supported by

(a) an affidavit from the applicant which includes the applicant's name, age, address and marital status;

(b) the birth certificate or registration of live birth of the child;

(c) the order of permanent guardianship or the voluntary surrender of guardianship agreement;

(d) the consents to the adoption required under section 12;

(e) certification by the director that no notice of application under The Family Maintenance Act for a declaration that a man be declared to be the father of the child was served on the director within 21 days after the signing of a voluntary surrender of guardianship agreement under The Child and Family Services Act;

(f) a copy of the agreement regarding placement referred to in section 45;

(g) a report from the child and family services agency that supervised the placement which includes the following:

(i) the family and developmental history of the child, identified by adoptive name and birth registration number only,

(ii) a summary of the homestudy conducted under section 37, and

(iii) the recommendation of the child and family services agency;

and, where applicable, by

(h) the marriage certificate of married applicants or the prescribed declaration of commitment of the cohabiting couple;

(i) the authorization of the child and family services agency where it extended or reduced the time for the making of the application;

(j) decree nisi and absolute of divorce or divorce judgment and certificate of divorce;

(k) the death certificate of the applicant's spouse; and

(l) proof of notification of the birth father.

DIVISION 2

PRIVATE ADOPTIONS

Who may place

51        A person who is entitled to surrender guardianship of a child under section 16 of The Child and Family Services Act may, in accordance with this Division, place the child for the purpose of adoption.

PLACING A CHILD FOR ADOPTION OUTSIDE OF MANITOBA

Application to approve out of province placement

52(1)     A person who intends to place a child outside of Manitoba for the purposes of adoption under this Division, shall apply to a child and family services agency or an adoption agency with jurisdiction in the area where the person resides for approval of the placement by the director.

Proposed placement within Canada

52(2)     The director may approve a request to place a child outside of Manitoba but within Canada where

(a) the agency contacted by the applicant under subsection (1) confirms that the person was informed about the effect of an adoption; and

(b) the director determines that the adoption can be legally completed in the jurisdiction where the child is proposed to be placed.

Proposed placement outside of Canada

52(3)     The director shall not approve an application to place a child outside of Canada without first obtaining the approval of the Lieutenant Governor in Council.

PLACING A CHILD FOR ADOPTION IN MANITOBA

Receiving person to notify agency

53(1)     The person who intends to receive a child for adoption shall notify either the child and family services agency or an adoption agency having jurisdiction in the area where the prospective adoptive parent resides, of the proposed placement not later than 14 days before receiving the child into the home for the purpose of adoption.

Form of notification

53(2)     The notification under subsection (1) shall be in a prescribed form, stating

(a) the name and birthdate of the child, or in the case of an unborn child, the expected date of birth;

(b) the names and addresses of the parents of the child;

(c) the name and address of the prospective adoptive parent;

(d) the address where the child resides, if applicable; and

(e) the name, occupation and address of any person who arranged or assisted in the proposed placement of the child.

Placing person to notify agency

54(1)     The person who intends to place the child for adoption in Manitoba shall notify the agency that was notified under subsection 53(1) of the proposed placement not later than 14 days before the placement.

Form of notification

54(2)     The notification under subsection (1) shall be in a prescribed form and shall set out the information referred to in subsection 53(2).

Director may waive or extend time for notification

55        Where there is a valid reason the director may either waive or extend the time for notifying an agency under subsection 53(1) or 54(1).

Duties of agency

56        Upon receipt of the notifications under sections 53 and 54, the agency shall

(a) provide information about the effects of adoption and the alternatives to adoption to the person requesting that the child be placed;

(b) obtain as much information as possible about the medical and social history of the child and the birth family and share this information with the prospective adoptive parent; and

(c) conduct a homestudy to determine the suitability of the prospective adoptive parent to be an adoptive parent, and the capability and willingness of the applicant to assume the responsibilities of a parent towards the child.

Consideration of homestudy previously prepared

57        In making a determination under clause 56(c), the agency may consider a homestudy of the prospective adoptive parent previously prepared by a child and family services agency or an adoption agency.

Copy of homestudy

58        The prospective adoptive parent is entitled to receive a copy of a homestudy referred to in clause 56(c) or section 57.

Placement approved

59        Where the agency determines that the prospective adoptive parent is suitable and capable of being an adoptive parent, the agency shall approve the placement of the child with the applicant and advise the parties and the director.

Placement not approved

60        Where the agency determines that the prospective adoptive parent is not suitable or not capable of being an adoptive parent, the agency shall not approve the placement of the child with the applicant and shall advise the parties and the director of its decision.

Review by director

61        Where the agency does not approve the placement of the child with the prospective adoptive parent, he or she may request the director to review the matter, and the director's decision is final.

WHEN CHILD MAY BE PLACED FOR ADOPTION

Placement after consents given

62(1)     A child shall not be placed with a prospective adoptive parent until

(a) each person required to consent to the adoption under clause 13(a) has done so; and

(b) the agency approves the placement of the child with the prospective adoptive parent under section 59.

Exception

62(2)     Despite subsection (1), the director may approve the placement of a child with a prospective adoptive parent before the consent to the adoption required under clause 13(a) is given if

(a) in the opinion of the director, it is in the child's best interests to be placed for adoption without delay;

(b) the agency approves the placement under section 59;

(c) no person required to give a consent is willing or able to care for the child until the consent is given; and

(d) each person required to give a consent, consents in writing to the transfer of the child to the prospective adoptive parent.

Date of placement

63        The day on which a child is transferred to the care of the prospective adoptive parent is the date of placement.

Supervision of placement following approval

64        The agency that approved the placement under section 59 shall supervise the placement of the child with the prospective adoptive parent until the order of adoption is made.

APPLICATION FOR ADOPTION ORDER

Application for order of adoption

65(1)     An application to the court for an order of adoption under this Division shall be made in the prescribed form no earlier than 30 days and no later than six months after the date the last consent required under clause 13(a) was given.

Extension of time

65(2)     Where there is a valid reason to do so, a judge or master may extend the time for applying for an order of adoption under subsection (1).

Service of application for order of adoption

66        At least 30 days before the date fixed for the hearing, the applicant shall serve a copy of the application on

(a) the agency that approved the placement under section 59;

(b) each person whose consent to the adoption is required under clause 13(a);

(c) the director; and

(d) any other person that a judge or master may direct.

Documents in support of application

67        An application for an order of adoption under this Division shall be supported by

(a) an affidavit of the applicant which includes the name, age, address and marital status of the applicant;

(b) the marriage certificate of married applicants or the prescribed declaration of commitment of the cohabiting couple;

(c) the birth certificate or registration of live birth of the child;

(d) the consents to the adoption required under section 13;

(e) certification by the director that no notice of application under The Family Maintenance Act for a declaration that a man be declared to be the father of the child was served on the director within 21 days after the date the last consent required under clause 13(a) was given;

(f) certification by the director that a withdrawal of consent under subsection 22(1) was not served; and

(g) a report from the agency that supervised the placement under section 59, which includes

(i) the family and developmental history of the child, identified by adoptive name and birth registration number only,

(ii) a summary of the matters determined under clause 56(c), and

(iii) the recommendation of the agency;

and, where applicable, by

(h) the death certificate of the applicant's spouse;

(i) decrees nisi and absolute of divorce or divorce judgment and certificate of divorce; and

(j) proof of notification of the birth father.

Order of judge

68        A judge may

(a) grant the order of adoption;

(b) order that the care and custody of the child be given to the parent who gave the consent to the adoption; or

(c) appoint the child and family services agency having jurisdiction in the area where the child resides as guardian of the child.

DIVISION 3

INTERCOUNTRY ADOPTIONS

ADOPTIONS WITHIN THE SCOPE OF THE HAGUE CONVENTION

Hague Convention adoption

69         The Intercountry Adoption (Hague Convention) Act applies to an adoption to which the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption applies.

Conversion of adoption

70(1)     On application by a person resident in Manitoba, a judge may make an order converting an adoption referred to in Article 27 of the Convention to have the effect of an adoption under this Act.

Documents in support of application

70(2)     An application for an order under this section shall be supported by

(a)  the consent or certification that the consent required under Article 27 of the Convention has been given; and

(b) certification of conformity required under Article 23 of the Convention.

ADOPTIONS OUTSIDE THE SCOPE OF THE HAGUE CONVENTION

Application for placement from another country

71(1)     A prospective adoptive parent who has been placed on the central adoption registry may request that he or she be considered for the placement of a child who resides in another country and who is legally available for adoption.

Provisions of Division 1 apply

71(2)     Where the prospective adoptive parent agrees to accept the placement of a child from another country, the provisions of Division 1 apply.

Application in another country

72(1)     A person who is applying in another country to adopt a child shall notify the director and the director shall,

(a) verify that the application has been completed and accepted by a court of competent jurisdiction in the other country;

(b) verify that the government of the country where the child resides supports the application and the adoption of the child; and

(c) provide supporting documentation required by the authorities of the child's country of residence in order to facilitate the finalization of the adoption in the other country, which may include a homestudy.

Copy of homestudy

72(2)     If a homestudy is prepared under clause (1)(c) the prospective adoptive parent is entitled to receive a copy of it.

DIVISION 4

DE FACTO ADOPTIONS

Application

73(1)     An application for an order of adoption may be made in the prescribed form

(a) jointly by a husband and wife or by a man and woman who are not married but are cohabiting as spouses, where at the time the application is made

(i) they are jointly caring for and maintaining the child, and

(ii) either applicant has had care and control of the child and has maintained the child for at least two consecutive years; or

(b) by a person who at the time the application is made

(i) is caring for and maintaining the child, and

(ii) has had care and control of the child and has maintained the child for at least two consecutive years.

Consent

73(2)     A judge may make an order of adoption under this Division without the consent of anyone other than the child if the child is 12 years of age or older.

Service of application

74        A person applying for an order of adoption under this Division shall serve a copy of the application at least 30 days prior to the date fixed for the hearing of the application on

(a) the child and family services agency or an adoption agency having jurisdiction in the area in which the applicant resides;

(b) the parents of the child; and

(c) any other person as a judge or master may direct.

Investigation by agency

75        Upon receiving a copy of the application, the agency shall investigate and provide the court with a written report respecting

(a) the suitability of the prospective adoptive parent as an adoptive parent;

(b) the capability and willingness of the prospective adoptive parent to assume the responsibilities of a parent towards the child; and

(c) any other matters the court considers relevant.

Documents in support of application

76        An application under this Division shall be supported by

(a) an affidavit of the applicant which includes the applicant's name, age, address and marital status;

(b) the birth certificate or registration of live birth of the child;

(c) if the child to be adopted is 12 years of age or over, the consent of the child, unless dispensed with by the judge;

(d) the report of the agency under section 75;

and, where applicable, by

(e) the marriage certificate of married applicants or the prescribed declaration of commitment of the cohabiting couple;

(f) decrees nisi and absolute of divorce or divorce judgment and certificate of divorce;

(g) the death certificate of the applicant's spouse; and

(h) proof of notification of the birth father.

Order of judge

77        A judge may

(a) grant the order of adoption;

(b) order that the care and custody of the child be given to the parents; or

(c) appoint the child and family services agency having jurisdiction in the area where the child resides as guardian of the child.

DIVISION 5

EXTENDED FAMILY ADOPTIONS

Placement of a child with member of extended family

78        A person entitled to surrender guardianship of a child under section 16 of The Child and Family Services Act  may, in accordance with this Division, place a child with a member of the child's extended family for the purposes of adoption.

Where director's approval required

79        A person who intends to place a child with a member of the child's extended family may do so without the approval of the director unless the child is to be placed outside of Manitoba.

Applying for director's approval

80(1)     A person who intends to place a child outside of Manitoba for the purposes of an adoption under this Division shall apply to a child and family services agency or an adoption agency with jurisdiction in the area where the person resides for approval of the placement by the director.

Proposed placement within Canada

80(2)     The director may approve a request to place a child outside of Manitoba but within Canada where

(a) the agency contacted under subsection (1) confirms that the applicant was informed about the effect of an adoption; and

(b) the director determines that the adoption can be legally completed in the jurisdiction where the child is proposed to be placed.

Proposed placement outside of Canada

80(3)     The director shall not approve a request to place a child outside of Canada without first obtaining the approval of the Lieutenant Governor in Council.

Application for order of adoption

81        An application to the court for an order of adoption under this Division shall be made in the prescribed form no later than 12 months after the date the child was transferred to the care and control of the prospective adoptive parent.

Service of application

82        A person applying for an order of adoption under this Division shall serve a copy of the application at least 30 days prior to the date fixed for the hearing on

(a) each person whose consent to the adoption is required under clause 13(a);

(b) the director; and

(c) any other person as a judge or master may direct.

Matters to be considered

83        No adoption order may be made under this Division unless the judge is satisfied that

(a) the applicant is suitable to be an adoptive parent;

(b) the applicant is capable and willing to assume the responsibilities of a parent towards the child; and

(c) for a period of at least six months prior to the date of the hearing of the application,

(i) the child resided with the applicant, and

(ii) the applicant has had care and control of the child and has maintained the child.

Time requirements

84        A judge may

(a) extend the time for making an application under section 81; or

(b) shorten the required length of time referred to in clause 83(c);

if satisfied that it is in the best interests of the child to do so.

Documents in support of application

85        An application for an order of adoption under this Division shall be supported by

(a) an affidavit of the applicant which includes the applicant's name, age, address, marital status and relationship to the child;

(b) the marriage certificate of a married applicant or the prescribed declaration of commitment of the cohabiting couple;

(c) the birth certificate or registration of live birth of the child;

(d) the consents to the adoption required under section 13;

(e) certification by the director that no notice of application under The Family Maintenance Act for a declaration that a man be declared to be the father of the child was served on the director within 21 days after the date the last consent required under clause 13(a) was given;

(f) certification by the director that a withdrawal of consent under subsection 22(1) was not served;

and, where applicable, by

(g) the death certificate of the applicant's spouse;

(h) decrees nisi and absolute of divorce or divorce judgment and certificate of divorce; and

(i) proof of notification of the birth father.

Report of agency

86(1)     The judge hearing an application under this Division may request that a child and services agency or an adoption agency chosen under subsection (2) provide the court with a written report on the matters referred to in section 83, and the agency shall comply with the request.

Choosing agency

86(2)     The agency referred to in subsection (1) shall be an agency having jurisdiction in the area where the applicant resides and

(a) chosen by the applicant; or

(b) if the applicant has no preference, chosen by the judge.

Order of judge

87        A judge may

(a) grant the order of adoption;

(b) order that the care and custody of the child be given to the parent who gave the consent to the adoption; or

(c) appoint the child and family services agency having jurisdiction in the area where the child resides, as guardian of the child.

DIVISION 6

ADOPTION BY PERSON WHO HAS MARRIED CHILD'S PARENT

Application

88        A person who

(a) is married to the parent of a child; or

(b) is cohabiting with the parent of a child and is of the opposite sex to the parent;

may, together with that parent or alone but with the consent of that parent, apply to the court in the prescribed form to adopt the child if the child is living with the applicants and is being cared for by them.

Service of application

89        An application under section 88 shall be served, at least 30 days prior to the date of the hearing of the application, or within such other period as a judge or master may allow, on

(a) the parent of the child who is not a party to the application;

(b) the director; and

(c) any  other person as a judge or master may direct.

Documents in support of application

90        An application for adoption under this Division shall be supported by

(a) an affidavit from the applicants which includes their names, ages, addresses and marital status;

(b) the marriage certificate of married applicants or the prescribed declaration of commitment of the cohabiting couple;

(c) the birth certificate or registration of live birth of the child;

(d) the consents to the adoption required under section 13;

(e) certification by the director that a withdrawal of consent under subsection 22(1) was not served;

and, where applicable, by

(f) the death certificate of a deceased parent of the child;

(g) the order of a court of competent jurisdiction relating to the custody of the child;

(h) decrees nisi and absolute of divorce or divorce judgment and certificate of divorce; and

(i) proof of notification of the birth father.

Report of agency

91(1)     The judge hearing an application under this Division may request a child and services agency, or an adoption agency chosen under subsection (2), to provide the court with a written report respecting

(a) the suitability of the applicants as adoptive parents;

(b) the capability and willingness of the applicants to assume the responsibilities of parents towards the child; and

(c) any other matters the judge considers relevant;

and the agency shall comply with the request.

Choosing agency

91(2)     The agency referred to in subsection (1) shall be an agency having jurisdiction in the area where the applicant resides and

(a) chosen by the applicant; or

(b) if the applicant has no preference, chosen by the judge.

Application for access

92(1)     The parent who is served with a copy of an application under section 89 may apply to the court for an order granting access to the child.

Access order

92(2)     An application under subsection (1) may be heard either as part of the application for adoption under this Division or as a separate application after the adoption order has been granted, and the judge hearing the application may grant the access with or without conditions.

DIVISION 7

ADOPTION OF AN ADULT

Application

93        An application to adopt an adult shall be made in the prescribed form.

Conditions for adoption of adult

94(1)     A judge may make an order of adoption of an adult without the consent of anyone, except the person to be adopted, as long as

(a) the person adopting is older by a reasonable number of years than the person to be adopted; and

(b) the reason for the adoption is acceptable to the judge hearing the application.

Support during minority to be considered by judge

94(2)     Where an application is made to adopt an adult the judge shall take into consideration, in addition to any other relevant considerations, whether the care, support and control of the person to be adopted has been provided by the person applying to adopt for a reasonable time during the minority of the person to be adopted.

Director not served

95        An order of adoption of an adult may be made

(a) without service of the application for adoption on the director; and

(b) without requiring a report from an agency.

Documents filed in support of application

96        An application for an order of adoption under this Division shall be supported by

(a) the consent of the person to be adopted;

(b) the birth certificates of the person to be adopted and of the applicant;

and, where applicable, by

(c) the marriage certificate of married applicants or the prescribed declaration of commitment of a cohabiting couple;

(d) decrees nisi and absolute of divorce or divorce judgment and certificate of divorce; and

(e) the death certificate of the applicant's spouse.

Effect of order

97        An order of adoption made with respect to an adult has the same effect as an order of adoption made with respect to a child.

PART 4

CONFIDENTIALITY, DISCLOSURE AND THE POST-ADOPTION REGISTRY

Definitions

98        In this Part,

"contact veto" means a contact veto referred to in section 113 and includes a notation on the post-adoption registry to the same effect made before the coming into force of this Act; (« refus de prise de contact »)

"disclosure veto" means a disclosure veto referred to in section 112 and includes a notation on the post-adoption registry to the same effect made before the coming into force of this Act; (« refus de communication »)

"identifying information" means information in a record which reveals the identity of a birth parent, an adoptive parent or an adoptee or which sets out the circumstances surrounding an adoption; (« renseignement signalétique »)

"non-identifying information" means information in a record about a birth parent, an adoptive parent or an adoptee which does not reveal the person's identity but which reveals non-identifying characteristics such as year of birth, ethnic origin, physical description, education level, religion and health history. (« renseignement non signalétique »)

Conflict with Freedom of Information Act

99        Despite any provision in The Freedom of Information Act or any Act that replaces it, the provisions of this Part prevail.

ADOPTION PROCEEDINGS

Adoption proceedings open

100(1)    Court proceedings with respect to an adoption, other than a proceeding with respect to an offence under Part 5 or under The Summary Convictions Act, shall be open to the general public unless a judge, on the application of a person who is involved in the proceeding or a portion of the proceeding, is satisfied that conducting the proceeding or the portion in public would be significantly harmful

(a) to the privacy or well-being of a person; or

(b) to the integrity of the adoption process;

and where the court is so satisfied, the court may order that the proceeding or the portion be closed to the public or a portion of the public and conducted in private.

Proceedings re offences

100(2)    Court proceedings with respect to an offence under Part 5 or under The Summary Convictions Act pertaining to an offence under this Act shall be open to the general public unless a judge on the application of a person who is involved in the proceeding or a portion of the proceeding is satisfied that

(a) conducting the proceeding or the portion in public would be significantly harmful to a person; and

(b) conducting the proceeding or the portion in private would not be contrary to the proper administration of justice;

and where the judge is so satisfied, the judge may order that the proceeding or the portion be closed to the public or a portion of the public and conducted in private.

Reporting not to identify persons involved

100(3)    No person shall disclose the name of a birth parent, an adoptive parent, an adoptee or any person involved in a proceeding under this Act as a party or a witness, or disclose any information likely to identify any such person.

COURT RECORDS

Court records are confidential

101       All records of the court relating to the granting of an order of adoption shall be confidential.

Court order required to search court records

102(1)    No person shall examine or make a copy of a court record relating to the granting of an order of adoption except by an order of a judge or master after reasonable notice is given to the director.

Court may issue certified copy of order

102(2)    Despite subsection (1), the court may on written request issue a certified copy of an order of adoption to

(a) an adoptive parent to whom the order of adoption relates; or

(b) an adult adoptee to whom the order of adoption relates;

but where the original surname of the child appears on the order of adoption, the original surname shall be deleted from the certified copy and the birth registration number or other identification acceptable to a judge or master shall be substituted for the surname.

ADOPTION RECORDS IN CUSTODY OR CONTROL OF DIRECTOR OR AGENCY

Records of director or agency

103(1)    All records, whether made before or after the coming into force of this Act, relating to the granting of an order of adoption that are in the custody or under the control of

(a) the director;

(b) a child and family services agency; or

(c) an adoption agency;

are confidential, and access to and disclosure of information in these records may be given or made only in accordance with this Act.

Records to be maintained separately

103(2)    Following the granting of an order of adoption the records referred to in subsection (1) shall be maintained separately in a secure manner in accordance with the regulations.

Exception re disclosure of identifying information

104(1)    Identifying information in a record referred to in subsection 103(1) may be disclosed as follows:

(a) when giving evidence in proceedings in court under this Act;

(b) where required by an order of any court;

(c) to the director or an agency, an employee of or consultant to the director or an agency, or a student placed with the director or an agency under an agreement with an educational institution, where disclosure is necessary for

(i) the performance of a duty or the exercise of a power, or

(ii) the provision of services under The Child and Family Services Act or the provision of adoption services under The Adoption Act to a person who is the subject of the record, with the consent of that person or a parent acting on behalf of a child;

(d) to the children's advocate where disclosure is necessary for the performance of a duty or the exercise of a power;

(e) where disclosure is necessary for the safety, health or well-being of a person, with the approval of the director in writing;

(f) where disclosure is necessary for the purpose of allowing a person to receive a benefit or service with the approval of the director in writing; or

(g) where disclosure is required for purposes of this Act.

Exception re disclosure of non-identifying information

104(2)    Non-identifying information in a record referred to in subsection 103(1)

(a) may be disclosed in the circumstances and to the persons set out in clauses (1)(a) to (g); and

(b) may be disclosed with the written approval of the director or the executive director of an agency, to a person entitled to register on the post-adoption registry under section 111.

Exception re disclosure for research purposes

105(1)    The director may, in writing, approve disclosure of any information in a record referred to in subsection 103(1) to a person for a bona fide research or statistical project if the director has determined that

(a) the research or statistical project is of sufficient importance to outweigh the intrusion into privacy that would result from the disclosure of the information;

(b) the research or statistical purpose cannot reasonably be accomplished unless the information is provided in a form that identifies or may identify individuals;

(c) it is unreasonable or impractical for the person proposing the research or statistical project to obtain consent from the individuals the information is about; and

(d) the research or statistical project contains

(i) reasonable safeguards to protect the confidentiality and security of the information, and

(ii) procedures to destroy the information or remove all identifying information at the earliest opportunity consistent with the purposes of the project.

Agreement required

105(2)    The director's approval under this section is conditional on the person proposing the research or statistical project entering into a written agreement with the director or the agency disclosing the information in which the person agrees

(a) not to publish the information requested in a form that could reasonably be expected to identify the individuals concerned;

(b) to use the information requested solely for the purposes of the approved research or statistical project; and

(c) to ensure that the research or statistical project complies with the safeguards and procedures described in clause (1)(d).

Protection from liability

106       No action lies and no proceeding may be brought against the Government of Manitoba, the director, an agency or any person acting for or under the direction of the director or an agency for damages resulting from the disclosure of or failure to disclose, in good faith, all or part of a record under this Part or any consequences of that disclosure or failure to disclose.

CONTACT BY THE DIRECTOR

Contact by the director

107       In compelling circumstances affecting anyone's health or safety, the director may contact any of the following to share with them any information from a record under subsection 103(1) or from the post-adoption registry or obtain from them any necessary information despite a disclosure veto or contact veto having been filed:

(a) a birth parent;

(b) if the birth parent cannot be located, a member of the birth parent's extended family;

(c) an adult adoptee;

(d) if the adult adoptee cannot be located, a member of the adult adoptee's extended family.

POST-ADOPTION REGISTRY

Post-adoption registry continued

108       The post-adoption registry established by the director under The Child and Family Services Act is continued.

Information on registry

109       The director shall maintain the post-adoption registry and record on it information obtained from records relating to the granting of an order of adoption or given by persons entitled to register on the post-adoption registry or by members of their extended families.

Disclosure of information from registry

110       All information in the post-adoption registry is confidential and access to and disclosure of information in it may be given only in accordance with this Act.

Persons entitled to register

111       Where an order of adoption is made under this or any predecessor Act, the following persons are entitled to register on the post-adoption registry:

(a) an adult adoptee;

(b) an adoptee who is under the age of majority, through his or her adoptive parent;

(c) an adoptive parent

(i) if the adoptee is an adult, with the adoptee's consent, or

(ii) if the adoptee is deceased;

(d) an adult adoptive sibling of an adoptee if the adoptee is deceased;

(e) a birth parent of an adoptee;

(f) an adult birth sibling of an adoptee.

DISCLOSURE VETOES

Disclosure veto

112(1)    A person who is entitled to register on the post-adoption registry under section 111 with respect to an adoption made under this or any predecessor Act, may file a written veto prohibiting the disclosure of any identifying information about him or her.

Filing veto on post-adoption registry

112(2)    Upon being satisfied that the disclosure veto is not affected by an openness agreement filed under section 33, the director shall file the disclosure veto on the post-adoption registry and advise the person accordingly.

Statement filed with veto

112(3)    A person who files a disclosure veto may file with it a written statement that includes any of the following:

(a) the reasons for wishing not to disclose any identifying information;

(b) in the case of a birth parent, a brief summary of any available information about the medical and social history of the birth parents and their families;

(c) any other relevant non-identifying information.

Non-identifying information given when veto filed

112(4)    When a person requesting information from the post-adoption registry is informed that a disclosure veto has been filed, the director shall give the person requesting the information any non-identifying information in any written statement filed with the disclosure veto.

Cancelling veto

112(5)    A person who files a disclosure veto may cancel the veto at any time by notifying the director in writing.

Veto continues after death

112(6)    Unless cancelled under subsection (5), a disclosure veto continues in effect after the death of the person who filed the veto, unless the disclosure veto states otherwise.

Effect of disclosure veto

112(7)    Subject to section 107, while a disclosure veto is in effect, the director shall not disclose any identifying information that relates to the person who filed the veto.

CONTACT VETOES

Contact veto

113(1)    A person who

(a) is entitled to register on the post-adoption registry under section 111 with respect to an adoption made under this or any predecessor Act; and

(b) who wishes not to be contacted by another person entitled to be registered on the post-adoption registry with respect to that adoption;

may file a written contact veto.

Filing veto on registry

113(2)    Upon being satisfied that the contact veto is not affected by an openness agreement filed under section 33, the director shall file the contact veto on the post-adoption registry and advise the person accordingly.

Statement filed with veto

113(3)    A person who files a contact veto may file with it a written statement that includes any of the following:

(a) the reasons for wishing not to be contacted;

(b) in the case of a birth parent, a brief summary of any available information about the medical and social history of the birth parents and their families;

(c) any other relevant information.

Information given where veto filed

113(4)    When a person requesting contact with a person is informed that a contact veto has been filed by that person, the director shall

(a) give the person requesting contact any information in any written statement filed with the contact veto; and

(b) advise the person in writing of the prohibitions set out in subsection (6).

Cancelling veto

113(5)    A person who files a contact veto may cancel the veto at any time by notifying the director in writing.

Prohibitions

113(6)    A person who is named in a contact veto filed by another person shall not

(a) knowingly contact or attempt to contact the person who filed the veto;

(b) procure another person to contact the person who filed the veto;

(c) use information obtained under this Act to intimidate or harass the person who filed the veto; or

(d) procure another person to intimidate or harass, by the use of information obtained under this Act, the person who filed the veto.

REGISTRY SERVICES WHERE ADOPTION ORDER MADE UNDER THIS ACT

Registry services if adoption order under this Act

114       Where an adoption order is made under this Act, a person who is entitled to register on the post-adoption registry under section 111 is entitled to request

(a) disclosure of identifying information about any other person who is entitled to register under section 111 with respect to the same adoption; and

(b) that reasonable efforts be made to locate other persons who are entitled to register with respect to the same adoption but have not registered, in accordance with section 118.

Information provided subject to disclosure veto

115        The director shall give the person requesting disclosure of information under clause 114(a) the requested information about the other person, whether or not that person is deceased, but shall not give any identifying information if a disclosure veto has been filed under section 112.

REGISTRY SERVICES WHERE ADOPTION ORDER MADE UNDER PREDECESSOR ACT

Registry services if order under predecessor Act

116       Where an adoption order is made under any Act that is a predecessor to this Act, a person who is entitled to register on the post-adoption registry under section 111 is entitled to request

(a) disclosure of identifying information about another person who is entitled to register with respect to the same adoption, in accordance with section 117; and

(b) that reasonable efforts be made to locate other persons entitled to register, in accordance with section 118.

Registrations with respect to same adoption

117       Where

(a) a person referred to in clause 111(a), (b), (c) or (d); and

(b) a person referred to in clause 111(e) or (f);

register on the post-adoption registry with respect to the same adoption, the director shall facilitate the sharing of identifying information and personal contact between them.

Efforts to locate persons

118       Where

(a) a person entitled to be registered on the post-adoption registry, registers; and

(b) there is no registration from another person with respect to the same adoption, and no applicable disclosure veto or contact veto;

the director shall make reasonable efforts to locate the following persons entitled to be registered to determine their wishes with respect to sharing identifying information and having contact:

(c) birth parents and any adult birth siblings of the adoptee, at the request of an adoptive parent, adult adoptee or adult adoptive sibling who has registered under section 111; and

(d) the adult adoptee, at the request of a birth parent or an adult birth sibling who has registered under section 111.

Requesting information about a deceased person

119(1)    Where a person registered on the post-adoption registry seeks disclosure of identifying information about a deceased person who was entitled to register with respect to the same adoption, the director shall inform the person seeking the information of the person's death without disclosing any identifying information about the deceased person.

Exception

119(2)    Despite subsection (1), the director may disclose identifying information about a deceased person if

(a) the post-adoption registry or the records in the custody or under the control of the director or an agency relating to the adoption contain information indicating the deceased person's desire to share identifying information or to have contact with the person requesting the information; or

(b) the deceased person filed a disclosure veto which permitted the release of identifying information after death.

PART 5

OFFENCES AND PENALTIES

Paying or accepting payment for an adoption

120(1)    A person shall not give or receive, offer to give or receive, or agree to give or receive any payment or reward, whether directly or indirectly,

(a) to procure or assist in procuring a child for the purposes of adoption in or outside of Manitoba; or

(b) to place or arrange the placement of a child for the purposes of adoption in or outside of Manitoba.

Exception

120(2)    Subsection (1) does not apply to any of the following:

(a) a birth mother receiving from a prospective adoptive parent expenses that do not exceed those allowed under the regulations;

(b) an adoptive parent who receives financial assistance under section 34;

(c) a lawyer receiving reasonable fees and expenses for legal services provided in connection with an adoption;

(d) a health care provider receiving reasonable fees and expenses for medical services provided to a child who is the subject of an adoption or to the birth mother in connection with the pregnancy or birth;

(e) an adoption agency or a child and family services agency receiving fees and expenses that do not exceed those allowed under the regulations;

(f) any other person prescribed by regulation.

Placing child outside of Manitoba

121       A person shall not take or send or attempt to take or send a child outside of Manitoba for the purpose of placing the child for adoption, other than for an adoption under Division 6 of Part 3, except in accordance with this Act.

Identifying person involved in adoption proceeding

122       A person who contravenes subsection 100(3) is guilty of an offence and is liable as set out in section 126.

Contravening a contact veto

123       A person who contravenes subsection 113(6) is guilty of an offence and is liable as set out in section 126.

Operating adoption agency without a licence

124       A person shall not operate an adoption agency without a licence issued in accordance with this Act and the regulations.

Advertising

125(1)    A person shall not publish or cause to be published in any form or by any means an advertisement dealing with the placement or adoption of a child.

Exception

125(2)    Subsection (1) does not apply to any of the following:

(a) the publication of a notice under a court order;

(b) the publication of a notice authorized by the director;

(c) an advertisement by an adoption agency advertising its services only, without referring to specific children;

(d) an announcement of an adoption placement or an adoption;

(e) other forms of advertisement specified by regulation.

Penalty

126(1)    A person who contravenes a provision of this Part is guilty of an offence and liable on summary conviction to a fine of not more than $20,000.

Continuing offence

126(2)    Where a contravention referred to in section 122 or 124 continues for more than one day, the person is guilty of a separate offence for each day the contravention continues.

Offence by an officer, etc. of corporation

126(3)    When a corporation is guilty of an offence under subsection (1), an officer, director or agent of the corporation who directed, authorized, participated in, or acquiesced in the offence, is also guilty of an offence and is liable on summary conviction to a fine of not more than $20,000.

Limitation period

126(4)    No proceeding for an offence under this Act may be commenced more than six months after the facts on which the proceeding is based first came to the director's knowledge.

PART 6

REGULATIONS

Regulations

127(1)    The Lieutenant Governor in Council may make regulations

(a) prescribing forms for the purposes of this Act;

(b) governing the payment of fees for applications, licences, registrations or other things done under this Act, and the waiving of fees;

(c) prescribing procedures for the placement of children for adoption;

(d) respecting the conditions under which financial assistance may be given to a person adopting a child and the amount of financial assistance;

(e) respecting the maintenance of records relating to the granting of an order of adoption referred to in section 103, including security measures and other safeguards;

(f) respecting the post-adoption registry;

(g) allowing prospective adoptive parents to pay expenses of birth parents and specifying the types of expenses and limiting the amounts of those expenses;

(h) specifying other persons who are exempt from subsection 120(1) or specifying any circumstances under which a person is exempt from subsection 120(1);

(i) respecting other forms of advertising that are exempt from section 125;

(j) respecting additional transitional provisions;

(k) defining words or phrases for which no definition is given in this Act;

(l) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the intent and purpose of this Act.

Agency regulations

127(2)    The Lieutenant Governor in Council may make regulations

(a) respecting the licensing of adoption agencies, the renewal of licences and the suspension and cancellation of licences;

(b) specifying conditions to be met and maintained by a corporation to obtain and retain a licence as an adoption agency, including conditions relating to the content of its constitution, articles and bylaws, the composition of its board of directors, the qualifications of directors and officers and the election or appointment of directors;

(c) respecting the qualifications to be met by persons who provide adoption services for agencies;

(d) governing the fees or other expenses that agencies may charge for services and the waiving of fees, and prohibiting agencies from charging fees or expenses for specified adoption services;

(e) respecting the assumption of responsibility for the delivery of services of an adoption agency for the purpose of subsection 9(4);

(f) respecting the retention, storage and destruction of records in the custody or control of an agency under this Act;

(g) respecting the contents of advertisements and other promotional material that may be used by agencies;

(h) respecting any other matter necessary for the proper operation, management, administration and accountability of agencies.

Conflict with Corporations Act

127(3)    If a regulation made under clause (2)(b) conflicts with a provision of The Corporations Act, the regulation prevails.

Application of regulations

127(4)    In making a regulation under this Act, the Lieutenant Governor in Council may provide differently for different categories of adoptions or different classes of persons.

PART 7

TRANSITIONAL PROVISIONS

Definition of "former Act"

128       In this Part, "former Act" means Part V of The Child and Family Services Act.

Placement under the former Act

129(1)    If a child was placed for adoption under the former Act before its repeal

(a) until an order of adoption has been granted,  The Child and Family Services Act continues to apply to the adoption; and

(b) after an order of adoption is granted, this Act applies.

Consent under former Act

129(2)    If a person required to consent to a child's adoption consented to the adoption before the repeal of the former Act, and the child was placed for adoption  after the repeal of that Act

(a) until an order of adoption has been granted,  The Child and Family Services Act continues to apply to the adoption; and

(b) after an order of adoption is granted, this Act applies.

Court application under former Act

129(3)    If an application for an order of adoption was made under the former Act before its repeal,

(a) until an order of adoption has been granted,  The Child and Family Services Act continues to apply to the adoption; and

(b) after an order of adoption is granted, this Act applies.

Consents under the former Act

130       Any consents given before the repeal of the former Act that were valid for the purposes of that Act are valid for the purposes of this Act.

PART 8

CONSEQUENTIAL AMENDMENTS

Consequential amendments, C.C.S.M. c.C80

131(1)    The Child and Family Services Act is amended by this section.

131(2)    Subsection 6(1) is amended by adding "under this Act or The Adoption Act" after "services".

131(3)    Subsection 6(11) is amended by adding "or The Adoption Act" after "this Act".

131(4)    Subsections 6(14)  and (15) are amended by adding "or The Adoption Act," after "under this Act".

131(5)    Clause 7(1)(i) is repealed and the following is substituted:

(i) provide adoption services under The Adoption Act;

131(6)    Clause 7(1)(j) is amended by adding "under The Adoption Act" after "adults".

131(7)    Clause 7(1)(q) is amended by adding "or The Adoption Act" after "this Act".

131(8)    Clause 7(1)(r) is amended by adding "or The Adoption Act, " after "this Act" wherever it occurs.

131(9)    Subsection 8.10(5) is repealed and the following is substituted:

Disclosure re adoption records

8.10(5)   The children's advocate shall not disclose identifying information relating to the granting of an order of adoption under The Adoption Act.

131(10)   Subsection 16(1) is repealed and the following is substituted:

Voluntary surrender of guardianship by parents

16(1)     The following persons may, by agreement on a prescribed form, surrender guardianship of the child to an agency:

(a) the parents of the child;

(b) if a parent is deceased, the surviving parent; or

(c) if both parents are deceased, the individual who is the child's guardian appointed by court order.

131(11)   Subsection 16(5) is amended

(a) by striking out the section heading and substituting "No surrender until 48 hours after birth" and;

(b) in the subsection, by striking out  "7 clear days after the date of birth" and substituting "48 hours after the time of the birth".

131(12)   Subsections 16(6) and (7) are repealed.

131(13)   Subsection 16(10) is amended by striking out "at any time prior to the day that the child is placed in a home for the purpose of adoption or within 1 year from the date of the agreement, whichever is earlier, but not thereafter" and substituting "within 21 days after the date of the agreement".

131(14)   The following is added after subsection 16(10):

Child returned

16(10.1)  Where a person withdraws a voluntary surrender of guardianship under subsection (10), the child and family services agency to whom guardianship was surrendered shall return the child to the person who withdraws the voluntary surrender of guardianship.

131(15)   Subsection 16(14) is amended

(a) by striking out "Notwithstanding any other provision of this Act, a person" and substituting "A person"; and

(b) by adding "under The Adoption Act" after "child".

131(16)   Clause 17(2)(h) is amended by striking out "under section 63 or of an unlawful sale" and substituting "under The Adoption Act or of a sale".

131(17)   The following is added after subsection 19.3(2):

Access by adoption agency

19.3(2.1) An adoption agency licensed under The Adoption Act, on application to the director, shall be given access to the registry where the director is satisfied that the access is reasonably required to assist the adoption agency

(a) in assessing an adoptive applicant; or

(b) in assessing any person who provides work or services to the adoption agency, whether as an employee, volunteer, student trainee or in any other way, or any person who applies or proposes to provide such work or services to the adoption agency.

131(18)   Subsection 39(6) is amended by adding "under The Adoption Act" after "adoption".

131(19)   Subsection 45(1) is amended by adding "in accordance with The Adoption Act" after "adoption".

131(20)   Part V is repealed.

131(21)   Subsection 76(5) is amended by adding "and" at the end of clause (a), by striking out "and" at the end of clause (b) and by repealing clause (c).

131(22)   Clause 76(14)(e) is amended by striking out "post-adoption searches on behalf of adopted adults under subsection 74(2)" and substituting "searches of the post-adoption registry under The Adoption Act".

131(23)   Subsection 76(22) is repealed and the following is substituted:

Retention, storage and destruction of records

76(22)    Subject to subsection (14), an agency shall retain, store and destroy records made under this Act in accordance with the regulations.

131(24)   Clauses 86(j) and (l) are repealed.

Consequential amendments, C.C.S.M. c. F20

132(1)    The Family Maintenance Act is amended by this section.

132(2)    Subsection 20(2) is amended by striking out "a child caring agency under The Child and Family Services Act and is considering surrendering the child for adoption" and substituting "an agency under The Child and Family Services Act or The Adoption Act and is considering adoption for the child".

132(3)    Subsection 20(8) is repealed and the following is substituted:

No declaration where child placed for adoption

20(8)     The court shall not hear an application under this section where the Director of Child and Family Services files with the court a certificate that states that the child has been placed for adoption and the Director received the notice of application more than 21 days after a parent of the child who is the subject of the application

(a) gave a consent to the adoption of the child under The Adoption Act; or

(b) signed a voluntary surrender of guardianship of the child under The Child and Family Services Act;

as the case may be.

Consequential amendment C.C.S.M. c. I85

133        Subsection 1(2) of The Intestate Succession Act is amended by striking out "The Child and Family Services Act" and substituting "The Adoption Act".

Consequential amendment C.C.S.M. c. V60

134       Subsections 10(1) and (8) of The Vital Statistics Act are amended by striking out "The Child and Family Services Act" and substituting "The Adoption Act".

PART 9

C.C.S.M. REFERENCE AND COMING INTO FORCE

C.C.S.M. reference

135       This Act may be cited as The Adoption Act and referred to as chapter A2 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

136       This Act comes into force on a day fixed by proclamation.