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Intercountry Adoption Act, 1998, S.O. 1998, c. 29

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Intercountry Adoption Act, 1998

S.O. 1998, CHAPTER 29

Consolidation Period: From December 15, 2009 to the e-Laws currency date.

Last amendment: 2009, c. 33, Sched. 7, s. 3.

CONTENTS

Interpretation

1.

Interpretation

Implementation of Convention

2.

Implementation of Convention

3.

Applicability of Convention in Ontario

4.

Central Authority

Intercountry Adoption Requirements

5.

Intercountry adoption

6.

Request of foreign authority for review of proposed adoption

7.

Sharing information

Licensing and Hearings

8.

Licences

8.1

Licences, conditions

9.

Refusal to issue licence

10.

Refusal to renew, revocation

11.

Notice of proposal

12.

Tribunal review of licence conditions

13.

Extension of time: hearings, renewals

14.

Provisional suspension of licence

15.

Hearing, parties

16.

Appeal

17.

Powers of inspection

18.

Delivery of licence and records

Offences

19.

No payments for intercountry adoption

20.

Offence, penalty

General

21.

Non-application of FIPPA and MFIPPA

22.

Child and Family Services Act, ss. 165, 170

23.

Conflict

Regulations

24.

Regulations

Transition

25.

Transition

Schedule

Convention on protection of children and co-operation in respect of intercountry adoption

Interpretation

Interpretation

1. (1) In this Act,

“Board” means the Child and Family Services Review Board; (“Commission”)

“child” means a person under the age of 18 years; (“enfant”)

“Convention” means the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption set out in the Schedule; (“Convention”)

“Director” means a person or member of a class of persons designated by the regulations; (“directeur”)

“intercountry adoption” means,

(a) an adoption to which the Convention applies, or

(b) any other adoption of a child who is habitually resident outside Canada, by an Ontario resident,

(i) that is intended to create a permanent parent-child relationship, and

(ii) that is finalized in the child’s country of origin; (“adoption internationale”)

“licence” means a licence to facilitate intercountry adoptions issued under section 8, and “licensee” and “licensed” have corresponding meanings; (“permis”, “titulaire de permis”, “autorisé en vertu d’un permis”)

“Minister” means the Minister of Children and Youth Services or such other member of the Executive Council as may be designated under the Executive Council Act to administer this Act; (“ministre”)

“regulations” means the regulations made under this Act; (“règlements”)

“Tribunal” means the Licence Appeal Tribunal. (“Tribunal”) 1998, c. 29, s. 1 (1); 1999, c. 12, Sched. G, s. 25 (1); 2009, c. 33, Sched. 7, s. 3 (1).

Words and expressions in Convention

(2) Words and expressions used in this Act have the same meaning as the corresponding words and expressions in the Convention. 1998, c. 29, s. 1 (2).

Implementation of Convention

Implementation of Convention

2. (1) The Minister shall request that the Government of Canada declare, in accordance with Article 45 of the Convention, that the Convention extends to Ontario. 1998, c. 29, s. 2 (1).

Publication

(2) The Minister shall publish in The Ontario Gazette notice of the date the Convention enters into force in Ontario. 1998, c. 29, s. 2 (2).

Applicability of Convention in Ontario

3. (1) On and after the date the Convention enters into force in respect of Ontario, as determined by Article 46 of the Convention, it has the force of law in Ontario. 1998, c. 29, s. 3 (1).

Conflict

(2) The law of Ontario also applies to adoptions to which the Convention applies, but if there is a conflict between the law of Ontario and the Convention, the Convention prevails. 1998, c. 29, s. 3 (2).

Central Authority

4. For the purposes of the Convention’s application in Ontario, the Central Authority is the person designated by the regulations. 1998, c. 29, s. 4.

Intercountry Adoption Requirements

Intercountry adoption

Application, homestudy and approval required

5. (1) No person who is habitually resident in Ontario shall leave Ontario for the purpose of an intercountry adoption or finalize an intercountry adoption without first,

(a) making an application to a licensee;

(b) obtaining an adoption homestudy to assess the person’s eligibility and suitability to adopt, and submitting a report of the adoption homestudy to a Director; and

(c) obtaining the Director’s approval, on the basis of the adoption homestudy. 1998, c. 29, s. 5 (1).

Director

(2) The application may be made to a Director rather than to a licensee, in which case the report of the adoption homestudy shall be submitted to the same Director. 1998, c. 29, s. 5 (2).

Who may make adoption homestudy

(3) The report of the adoption homestudy shall be prepared by a person who, in the Director’s opinion, is qualified to make an adoption homestudy. 1998, c. 29, s. 5 (3).

Review by Director

(4) The Director shall review the report of the adoption homestudy promptly and,

(a) approve the person unconditionally;

(b) approve the person subject to any conditions the Director considers appropriate; or

(c) refuse to approve the person. 1998, c. 29, s. 5 (4).

Notice

(5) The Director shall promptly give notice of the approval, the approval subject to conditions or the refusal, as the case may be,

(a) to the person who is the subject of the adoption homestudy;

(b) to the licensee, if any; and

(c) to the authority responsible for adoption matters in the child’s country of origin. 1998, c. 29, s. 5 (5).

Right to hearing

(6) When a Director gives notice of a refusal or of an approval subject to conditions, the person is entitled to a hearing before the Board. 1999, c. 12, Sched. G, s. 25 (2).

Application of other sections

(7) Sections 11, 13, 15 and 16 (hearing, appeal) apply to the hearing with necessary modifications and for that purpose references to the Tribunal shall be deemed to be references to the Board. 1999, c. 12, Sched. G, s. 25 (2).

Request of foreign authority for review of proposed adoption

6. (1) When an intercountry adoption by an Ontario resident is proposed, the authority responsible for adoption matters in the child’s country of origin may request that a Director review the proposed adoption. 1998, c. 29, s. 6 (1).

Review by Director

(2) The Director shall promptly review the proposed adoption and,

(a) approve it unconditionally;

(b) approve it subject to any conditions the Director considers appropriate; or

(c) refuse to approve it. 1998, c. 29, s. 6 (2).

Notice

(3) The Director shall promptly give notice of the approval, the approval subject to conditions or the refusal, as the case may be,

(a) to the Ontario resident;

(b) to the licensee, if any; and

(c) to the foreign authority. 1998, c. 29, s. 6 (3).

Right to hearing

(4) When a Director gives notice of a refusal or of an approval subject to conditions, the Ontario resident is entitled to a hearing before the Board. 1999, c. 12, Sched. G, s. 25 (3).

Application of other sections

(5) Sections 11, 13, 15 and 16 (hearing, appeal) apply to the hearing with necessary modifications and for that purpose references to the Tribunal shall be deemed to be references to the Board. 1999, c. 12, Sched. G, s. 25 (3).

Sharing information

7. If a Director is aware of an application under section 5, has reviewed the report of an adoption homestudy under section 5 or a proposed adoption under section 6, or is otherwise aware that an Ontario resident is pursuing an intercountry adoption, the Director may share relevant information with,

(a) the authorities responsible for adoption matters, child welfare, the administration of justice and law enforcement in the child’s country of origin;

(b) the Government of Canada and its agencies;

(c) the governments of other provinces and territories of Canada and their agencies; and

(d) a prescribed person or body. 1998, c. 29, s. 7.

Licensing and Hearings

Licences

8. (1) No person except a Director or a licensee shall facilitate an intercountry adoption. 1998, c. 29, s. 8 (1).

Issuing licence

(2) Subject to subsection (4), a person who applies for a licence in accordance with the regulations and pays the prescribed fee is entitled to be issued a licence by a Director, subject to any conditions imposed by the Director. 1998, c. 29, s. 8 (2).

Renewal

(3) Subject to subsection (4), a licensee who applies for renewal of the licence in accordance with the regulations and pays the prescribed fee is entitled to have the licence renewed by a Director, subject to any conditions imposed by the Director. 1998, c. 29, s. 8 (3).

Provisional licence or renewal

(4) If an applicant for a licence or renewal does not meet all the requirements for the issuing or renewal of the licence and requires time to meet them, a Director may issue a provisional licence for the period the Director considers necessary to give the applicant time to meet the requirements, and may impose conditions on the provisional licence. 1998, c. 29, s. 8 (4).

Non-transferable

(5) A licence is not transferable. 1998, c. 29, s. 8 (5).

Licences, conditions

8.1 During the course of a licence, a Director may impose conditions on the licence or amend the conditions on the licence. 2009, c. 33, Sched. 7, s. 3 (2).

Refusal to issue licence

9. A Director may refuse to issue a licence if, in his or her opinion,

(a) the applicant, an employee of the applicant or, if the applicant is a corporation, an officer or director of the applicant is not competent to facilitate intercountry adoptions in a responsible manner in accordance with this Act and the regulations; or

(b) the past conduct of the applicant, an employee of the applicant or, if the applicant is a corporation, an officer or director of the applicant affords reasonable grounds for belief that intercountry adoptions will not be facilitated in a responsible manner in accordance with this Act and the regulations. 1998, c. 29, s. 9.

Refusal to renew, revocation

10. A Director may refuse to renew or may revoke a licence if, in his or her opinion,

(a) the licensee, an employee of the licensee or, if the licensee is a corporation, an officer or director of the licensee has contravened or has knowingly permitted a person under his or her control or direction or associated with him or her to contravene,

(i) this Act or the regulations,

(ii) another Act, or the regulations made under another Act, that applies to adoptions, or

(iii) a condition of the licence;

(b) intercountry adoptions are being facilitated in a manner that is prejudicial to the health, safety or welfare of children;

(c) a person has made a false statement in the application for the licence or for its renewal, or in a report or document required to be furnished by this Act or the regulations, or by another Act or the regulations made under another Act that applies to adoptions; or

(d) a change has occurred in the employees, officers or directors of the applicant that would, if the applicant were applying for the licence in the first instance, afford grounds for refusal under clause 9 (b). 1998, c. 29, s. 10.

Notice of proposal

11. (1) If a Director proposes to refuse to issue a licence under section 9 or to revoke or refuse to renew a licence under section 10, he or she shall cause notice of the proposal, together with written reasons, to be served on the applicant or licensee. 1998, c. 29, s. 11 (1).

Right to hearing

(2) The applicant or licensee is entitled to a hearing by the Tribunal if the applicant or licensee mails or delivers to the Director and to the Tribunal, within 10 days after the notice is served, a written request for a hearing, and the notice shall so inform the applicant or licensee. 1998, c. 29, s. 11 (2); 1999, c. 12, Sched. G, s. 25 (4).

Note: Despite the amendments made to subsection (2) by the Statutes of Ontario, 1999, chapter 12, Schedule G, subsection 25 (4), members of the Child and Family Services Review Board immediately before April 1, 2000 shall be members of the Licence Appeal Tribunal for the purpose of performing the duties of the Tribunal with respect to proceedings before the Board that were commenced before April 1, 2000.

Carrying out proposal if no hearing required

(3) If no hearing is requested, the Director may carry out the proposal. 1998, c. 29, s. 11 (3).

Powers of Tribunal if hearing required

(4) If a hearing is requested, the Tribunal shall set a time for and hold a hearing and may, on hearing the matter,

(a) order the Director to carry out the proposal; or

(b) order the Director to take any other action that the Tribunal considers appropriate, in accordance with this Act and the regulations. 1998, c. 29, s. 11 (4); 1999, c. 12, Sched. G, s. 25 (4).

Note: Despite the amendments made to subsection (4) by the Statutes of Ontario, 1999, chapter 12, Schedule G, subsection 25 (4), members of the Child and Family Services Review Board immediately before April 1, 2000 shall be members of the Licence Appeal Tribunal for the purpose of performing the duties of the Tribunal with respect to proceedings before the Board that were commenced before April 1, 2000.

Same

(5) The Tribunal may substitute its opinion for that of the Director. 1998, c. 29, s. 11 (5); 1999, c. 12, Sched. G, s. 25 (4).

Note: Despite the amendment made to subsection (5) by the Statutes of Ontario, 1999, chapter 12, Schedule G, subsection 25 (4), members of the Child and Family Services Review Board immediately before April 1, 2000 shall be members of the Licence Appeal Tribunal for the purpose of performing the duties of the Tribunal with respect to proceedings before the Board that were commenced before April 1, 2000.

Tribunal review of licence conditions

12. (1) A licensee who is dissatisfied with a condition imposed by a Director under subsection 8 (2), (3) or (4) or section 8.1 is entitled to a hearing by the Tribunal if the licensee mails or delivers to the Director and to the Tribunal, within 15 days after receiving the licence, a written request for a hearing. 1998, c. 29, s. 12 (1); 1999, c. 12, Sched. G, s. 25 (4); 2009, c. 33, Sched. 7, s. 3 (3).

Note: Despite the amendments made to subsection (1) by the Statutes of Ontario, 1999, chapter 12, Schedule G, subsection 25 (4), members of the Child and Family Services Review Board immediately before April 1, 2000 shall be members of the Licence Appeal Tribunal for the purpose of performing the duties of the Tribunal with respect to proceedings before the Board that were commenced before April 1, 2000.

Powers of Tribunal

(2) If a hearing is requested, the Tribunal shall set a time for and hold a hearing and may, on hearing the matter,

(a) confirm any or all of the conditions;

(b) strike out any or all of the conditions; or

(c) impose any other conditions that the Tribunal considers appropriate. 1998, c. 29, s. 12 (2); 1999, c. 12, Sched. G, s. 25 (4).

Note: Despite the amendments made to subsection (2) by the Statutes of Ontario, 1999, chapter 12, Schedule G, subsection 25 (4), members of the Child and Family Services Review Board immediately before April 1, 2000 shall be members of the Licence Appeal Tribunal for the purpose of performing the duties of the Tribunal with respect to proceedings before the Board that were commenced before April 1, 2000.

Time of receipt

(3) For the purposes of subsection (1), a licensee shall be deemed to receive the licence on the 10th day after the day it is mailed, unless it is established that the licensee did not receive it or did not, through absence, accident, illness or another cause beyond the licensee’s control, acting in good faith, receive the licence until a later date. 1998, c. 29, s. 12 (3).

Extension of time: hearings, renewals

13. (1) The Board may extend the time fixed for requesting a hearing under subsection 5 (6) or 6 (4), either before or after its expiration, if,

(a) it appears to the Board that there are reasonable grounds for granting relief to the applicant or licensee; and

(b) the Board is satisfied that the applicant or licensee has reasonable grounds to seek an extension. 1998, c. 29, s. 13 (1); 1999, c. 12, Sched. G, s. 25 (6).

Directions

(2) The Board may give such directions as it considers proper in connection with an extension. 1998, c. 29, s. 13 (2).

Continuation of licence pending renewal

(3) Subject to section 14, if a licensee has applied for renewal of the licence and paid the prescribed fee within the prescribed time or, if no time is prescribed, before the licence expires, the licence is deemed to continue,

(a) until the renewal is granted; or

(b) if the licensee is served with notice that the Director proposes to refuse to grant the renewal, until the time for requesting a hearing has expired and, if a hearing is requested, until the Tribunal has made its decision. 1998, c. 29, s. 13 (3); 1999, c. 12, Sched. G, s. 25 (7).

Provisional suspension of licence

14. (1) A Director may, by causing notice to be served on a licensee, suspend the licence provisionally and without a hearing, if in his or her opinion the manner in which intercountry adoptions are being facilitated is an immediate threat to the health, safety or welfare of children. 1998, c. 29, s. 14 (1).

Contents of notice

(2) The notice shall contain a statement of the grounds for suspension. 1998, c. 29, s. 14 (2).

When suspension takes effect

(3) The provisional suspension takes effect on the day the licensee receives the notice. 1998, c. 29, s. 14 (3).

Application of s. 11 (2-5)

(4) Subsections 11 (2), (3), (4) and (5) apply, with necessary modifications. 1998, c. 29, s. 14 (4).

Hearing, parties

15. (1) The Director, the applicant or licensee who requests the hearing and any other persons that the Tribunal specifies are parties to the proceeding. 1998, c. 29, s. 15 (1); 1999, c. 12, Sched. G, s. 25 (7).

Prior involvement

(2) A member of the Tribunal who has taken part before a hearing in any investigation or consideration of its subject matter shall not take part in the hearing. 1998, c. 29, s. 15 (2); 1999, c. 12, Sched. G, s. 25 (7).

Discussion of subject matter of hearing

(3) A member of the Tribunal who takes part in a hearing shall not communicate about the subject matter of the hearing with any person (except another member, a lawyer who does not represent any party, or an employee of the Tribunal) unless all parties are notified and given an opportunity to participate. 1998, c. 29, s. 15 (3); 1999, c. 12, Sched. G, s. 25 (7).

Independent legal advice

(4) The Tribunal may seek independent legal advice about the subject matter of a hearing and, if it does so, shall disclose the nature of the advice to the parties to enable them to respond. 1998, c. 29, s. 15 (4); 1999, c. 12, Sched. G, s. 25 (7).

Examination of documentary evidence and reports

(5) Every party shall be given an opportunity, before the hearing, to examine any documentary evidence that will be produced and any report whose contents will be given in evidence at the hearing. 1998, c. 29, s. 15 (5).

Recording of evidence

(6) The evidence taken before the Board at a hearing under subsection 5 (6) or 6 (4) shall be recorded. 1999, c. 12, Sched. G, s. 25 (8).

Only members present throughout hearing to participate in decision

(7) No member of the Tribunal shall participate in a decision of the Tribunal unless he or she was present throughout the hearing and heard the evidence and argument of the parties. 1998, c. 29, s. 15 (7); 1999, c. 12, Sched. G, s. 25 (9).

All members present at hearing to participate in decision

(8) Unless the parties consent, the Tribunal shall not make a decision unless all the members who were present at the hearing participate in the decision. 1998, c. 29, s. 15 (8); 1999, c. 12, Sched. G, s. 25 (9).

Time for final decision

(9) Despite section 21 of the Statutory Powers Procedure Act (adjournments), the Tribunal shall make a final decision and notify the parties of it within 90 days after the day the Tribunal receives the request for a hearing. 1998, c. 29, s. 15 (9); 1999, c. 12, Sched. G, s. 25 (9).

Appeal

16. (1) An appeal lies to the Divisional Court from the Tribunal’s decision. 1998, c. 29, s. 16 (1); 1999, c. 12, Sched. G, s. 25 (9).

Record to be filed

(2) When notice of an appeal is filed, the Tribunal shall promptly file with the court the record of the proceeding in which the decision appealed from was made. 1998, c. 29, s. 16 (2); 1999, c. 12, Sched. G, s. 25 (9).

Minister

(3) The Minister is entitled to be heard, by counsel or otherwise, on the argument of the appeal. 1998, c. 29, s. 16 (3).

Powers of inspection

17. (1) For the purpose of ensuring compliance with this Act, the regulations and any conditions imposed on licences, a Director or a person who has a Director’s written authorization may, at all reasonable times, upon producing proper identification,

(a) enter the premises of a licensee;

(b) inspect the premises and any financial or other records there dealing with activities in connection with intercountry adoptions; and

(c) make copies of the records or remove them from the premises to copy them as may be reasonably required. 1998, c. 29, s. 17 (1).

Offence

(2) No person shall,

(a) hinder, obstruct or attempt to hinder or obstruct a Director or other person in the exercise of the power conferred by subsection (1);

(b) knowingly give false information about a licensee’s activities in connection with intercountry adoptions; or

(c) refuse to give a Director or other person access to the records referred to in clause (1) (b) or refuse to give him or her information about the premises or about the licensee’s activities in connection with intercountry adoptions that the Director or other person reasonably requires. 1998, c. 29, s. 17 (2).

Regulations

(3) The power conferred by subsection (1) shall be exercised in accordance with the regulations. 1998, c. 29, s. 17 (3).

Delivery of licence and records

18. A licensee whose licence is revoked or who ceases to facilitate intercountry adoptions shall deliver up to a Director or to the Minister the licence and all the records in the licensee’s possession or control that relate to intercountry adoptions. 1998, c. 29, s. 18.

Offences

No payments for intercountry adoption

19. No person shall give, receive or agree to give or receive a payment or reward of any kind in connection with an intercountry adoption or proposed intercountry adoption, except for,

(a) the expenses of a licensee that belong to a prescribed class, or such other expenses as are approved by a Director;

(b) the expenses of a person referred to in subsection 5 (3) that belong to a prescribed class;

(c) the expenses of a Director that belong to a prescribed class; and

(d) proper legal fees and disbursements. 1998, c. 29, s. 19.

Offence, penalty

20. (1) A person who contravenes subsection 5 (1) (application, homestudy and approval required) is guilty of an offence and on conviction is liable to a fine of not more than $2,000 or to imprisonment for not more than two years, or to both. 1998, c. 29, s. 20 (1).

Same

(2) A person who contravenes subsection 8 (1) (facilitating intercountry adoptions without licence), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $1,000 for each day on which the offence continues or to imprisonment for not more than one year, or to both. 1998, c. 29, s. 20 (2).

Same

(3) Every person who knowingly furnishes false information in an application under subsection 8 (2) or (3) (licence, renewal) or in a statement, report or return required to be furnished under the regulations, and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $2,000. 1998, c. 29, s. 20 (3).

Same

(4) Every person who knowingly contravenes subsection 17 (2) (obstruction), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $2,000. 1998, c. 29, s. 20 (4).

Same

(5) A person who contravenes section 19, and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for not more than three years, or to both. 1998, c. 29, s. 20 (5).

Limitation

(6) A proceeding under subsection (1), (2) or (5) shall not be commenced more than two years after the date on which the offence is alleged to have been committed. 1998, c. 29, s. 20 (6).

General

Non-application of FIPPA and MFIPPA

21. The Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act do not apply to information that relates to an intercountry adoption or proposed intercountry adoption. 1998, c. 29, s. 21.

Child and Family Services Act, ss. 165, 170

22. Directors and licensees under this Act are deemed to be licensees for the purposes of sections 165 and 170 of the Child and Family Services Act (confidentiality of adoption records, persons adopted outside Ontario). 1998, c. 29, s. 22.

Conflict

23. If there is a conflict between this Act and any other Act, this Act prevails. 1998, c. 29, s. 23.

Regulations

Regulations

24. The Lieutenant Governor in Council may make regulations,

(a) designating the Central Authority in accordance with Article 6 of the Convention;

(b) assigning functions of the Central Authority to public authorities, accredited bodies or other bodies or persons in accordance with Article 22 of the Convention;

(c) defining words and expressions used but not defined in the Convention;

(d) further defining “intercountry adoption” for the purpose of this Act;

(e) exempting from this Act, a provision of this Act, the regulations or a provision of the regulations,

(i) a class or classes of intercountry adoptions, or

(ii) a class or classes of persons;

(f) prescribing persons and classes of persons and bodies and classes of bodies for the purpose of clause 7 (d);

(g) defining “facilitate” for the purpose of subsection 8 (1);

(h) governing the issuing, renewal and expiry of licences and prescribing fees payable by an applicant for a licence or its renewal;

(i) prescribing the records to be kept by licensees;

(j) requiring licensees to provide the prescribed information and reports and prescribing the information and reports;

(k) requiring applications, reports and other documents to be prepared in a form approved or provided by the Minister;

(l) governing the qualifications of persons or classes of persons employed by licensees;

(m) governing the exercise of the power of entry set out in subsection 17 (1);

(n) designating persons or classes of persons as Directors for the purposes of this Act;

(o) prescribing classes of expenses for the purposes of clauses 19 (a), (b) and (c) and prescribing the conditions under which such classes of expenses may be charged. 1998, c. 29, s. 24.

Transition

Transition

25. (1) This Act does not apply to an intercountry adoption if,

(a) before the effective date,

(i) an application to adopt the child has been made to an authority responsible for adoption matters in the child’s country of origin, or has been received by the Ministry of Community and Social Services or the National Adoption Desk of Human Resources Development (Canada),

(ii) the child has been placed with the proposed adoptive parent, or

(iii) the consents and approvals necessary for the adoption have been given; and

(b) the adoption is finalized within 24 months after the effective date. 1998, c. 29, s. 25 (1).

Same

(2) A report of an adoption homestudy that was prepared before the effective date may be used for the purposes of subsection 5 (1) if the person who prepared it is a person referred to in subsection 5 (3). 1998, c. 29, s. 25 (2).

Definition

(3) In subsections (1) and (2),

“effective date” means the day on which subsection 5 (1) comes into force. 1998, c. 29, s. 25 (3).

26. Omitted (provides for coming into force of provisions of this Act). 1998, c. 29, s. 26.

27. Omitted (enacts short title of this Act). 1998, c. 29, s. 27.

SCHEDULE
CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION

The States signatory to the present Convention,

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,

Recalling that each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin,

Recognizing that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin,

Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children,

Desiring to establish common provisions to this effect, taking into account the principles set forth in international instruments, in particular the United Nations Convention on the Rights of the Child, of November 20, 1989, and the United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (General Assembly Resolution 41/85, of 3 December 1986),

Have agreed upon the following provisions,

CHAPTER 1 — SCOPE OF THE CONVENTION

Article 1

The objects of the present Convention are,

(a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law;

(b) to establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;

(c) to secure the recognition in Contracting States of adoptions made in accordance with the Convention.

Article 2

1. The Convention shall apply where a child habitually resident in one Contracting State (’the State of origin’) has been, is being, or is to be moved to another Contracting State (’the receiving State’) either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin.

2. The Convention covers only adoptions which create a permanent parent-child relationship.

Article 3

The Convention ceases to apply if the agreements mentioned in Article 17, subparagraph (c), have not been given before the child attains the age of 18 years.

CHAPTER II — REQUIREMENTS FOR INTERCOUNTRY ADOPTIONS

Article 4

An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin,

(a) have established that the child is adoptable;

(b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests;

(c) have ensured that,

(1) the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin,

(2) such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,

(3) the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and

(4) the consent of the mother, where required, has been given only after the birth of the child; and

(d) have ensured, having regard to the age and degree of maturity of the child, that,

(1) he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,

(2) consideration has been given to the child’s wishes and opinions,

(3) the child’s consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and

(4) such consent has not been induced by payment or compensation of any kind.

Article 5

An adoption within the scope of the Convention shall take place only if the competent authorities of the receiving State,

(a) have determined that the prospective adoptive parents are eligible and suited to adopt;

(b) have ensured that the prospective adoptive parents have been counselled as may be necessary; and

(c) have determined that the child is or will be authorized to enter and reside permanently in that State.

CHAPTER III — CENTRAL AUTHORITIES AND ACCREDITED BODIES

Article 6

1. A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.

2. Federal States, States with more than one system of law or States having autonomous territorial units shall be free to appoint more than one Central Authority and to specify the territorial or personal extent of their functions. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which any communication may be addressed for transmission to the appropriate Central Authority within that State.

Article 7

1. Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their States to protect children and to achieve the other objects of the Convention.

2.They shall take directly all appropriate measures to,

(a) provide information as to the laws of their States concerning adoption and other general information, such as statistics and standard forms;

(b) keep one another informed about the operation of the Convention and, as far as possible, eliminate any obstacles to its application.

Article 8

Central Authorities shall take, directly or through public authorities, all appropriate measures to prevent improper financial or other gain in connection with an adoption and to deter all practices contrary to the objects of the Convention.

Article 9

Central Authorities shall take, directly or through public authorities or other bodies duly accredited in their State, all appropriate measures, in particular to,

(a) collect, preserve and exchange information about the situation of the child and the prospective adoptive parents, so far as is necessary to complete the adoption;

(b) facilitate, follow and expedite proceedings with a view to obtaining the adoption;

(c) promote the development of adoption counselling and post-adoption services in their States;

(d) provide each other with general evaluation reports about experience with intercountry adoption;

(e) reply, in so far as is permitted by the law of their State, to justified requests from other Central Authorities or public authorities for information about a particular adoption situation.

Article 10

Accreditation shall only be granted to and maintained by bodies demonstrating their competence to carry out properly the tasks with which they may be entrusted.

Article 11

An accredited body shall,

(a) pursue only non-profit objectives according to such conditions and within such limits as may be established by the competent authorities of the State of accreditation;

(b) be directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of intercountry adoption; and

(c) be subject to supervision by competent authorities of that State as to its composition, operation and financial situation.

Article 12

A body accredited in one Contracting State may act in another Contracting State only if the competent authorities of both States have authorized it to do so.

Article 13

The designation of the Central Authorities and, where appropriate, the extent of their functions, as well as the names and addresses of the accredited bodies shall be communicated by each Contracting State to the Permanent Bureau of the Hague Conference on Private International Law.

CHAPTER IV — PROCEDURAL REQUIREMENTS IN INTERCOUNTRY ADOPTION

Article 14

Persons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence.

Article 15

1. If the Central Authority of the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they would be qualified to care.

2. It shall transmit the report to the Central Authority of the State of origin.

Article 16

1. If the Central Authority of the State of origin is satisfied that the child is adoptable, it shall,

(a) prepare a report including information about his or her identity, adoptablity, background, social environment, family history, medical history including that of the child’s family, and any special needs of the child;

(b) give due consideration to the child’s upbringing and to his or her ethnic, religious and cultural background;

(c) ensure that consents have been obtained in accordance with Article 4; and

(d) determine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child.

2.It shall transmit to the Central Authority of the receiving State its report on the child, proof that the necessary consents have been obtained and the reasons for its determination on the placement, taking care not to reveal the identity of the mother and the father if, in the State of origin, these identities may not be disclosed.

Article 17

Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if,

(a) the Central Authority of that State has ensured that the prospective adoptive parents agree;

(b) the Central Authority of the receiving State has approved such decision, where such approval is required by the law of that State or by the Central Authority of the State of origin;

(c) the Central Authorities of both States have agreed that the adoption may proceed; and

(d) it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorized to enter and reside permanently in the receiving State.

Article 18

The Central Authorities of both States shall take all necessary steps to obtain permission for the child to leave the State of origin and to enter and reside permanently in the receiving State.

Article 19

1. The transfer of the child to the receiving State may only be carried out if the requirements of Article 17 have been satisfied.

2. The Central Authorities of both States shall ensure that this transfer takes place in secure and appropriate circumstances and, if possible, in the company of the adoptive or prospective adoptive parent.

3. If the transfer of the child does not take place, the report referred to in Articles 15 and 16 are to be sent back to the authorities who forwarded them.

Article 20

The Central Authorities shall keep each other informed about the adoption process and the measures taken to complete it, as well as about the progress of the placement if a probationary period is required.

Article 21

1. Where the adoption is to take place after the transfer of the child to the receiving State and it appears to the Central Authority of that State that the continued placement of the child with the prospective adoptive parents is not in the child’s best interests, such Central Authority shall take the measures necessary to protect the child, in particular,

(a) to cause the child to be withdrawn from the prospective adoptive parents and to arrange temporary care;

(b) in consultation with the Central Authority of the State of origin, to arrange without delay a new placement of the child with a view to adoption or, if this is not appropriate, to arrange alternative long-term care; an adoption shall not take place until the Central Authority of the State of origin has been duly informed concerning the new prospective adoptive parents;

(c) as a last resort, to arrange the return of the child, if his or her interests so require.

2.Having regard in particular to the age and degree of maturity of the child, he or she shall be consulted and, where appropriate, his or her consent obtained in relation to measures to be taken under this Article.

Article 22

1. The functions of a Central Authority under this Chapter may be performed by public authorities or by bodies accredited under Chapter III, to the extent permitted by the law of its State.

2. Any Contracting State may declare to the depositary of the Convention that the functions of the Central Authority under Articles 15 to 21 may be performed in that State, to the extent permitted by the law and subject to the supervision of the competent authorities of that State, also by bodies or persons who,

(a) meet the requirements of integrity, professional competence, experience and accountability of that State; and

(b) are qualified by their ethical standards and by training or experience to work in the field of intercountry adoption.

3.A Contracting State which makes the declaration provided for in paragraph 2 shall keep the Permanent Bureau of the Hague Conference on Private International Law informed of the names and addresses of these bodies and persons.

4.Any Contracting State may declare to the depositary of the Convention that adoptions of children habitually resident in its territory may only take place if the functions of the Central Authorities are performed in accordance with paragraph 1.

5.Notwithstanding any declaration made under paragraph 2, the reports provided for in Articles 15 and 16 shall, in every case, be prepared under the responsibility of the Central Authority or other authorities or bodies in accordance with paragraph 1.

CHAPTER V — RECOGNITION AND EFFECTS OF THE ADOPTION

Article 23

1. An adoption certified by the competent authority of the State of the adoption as having been made in accordance with the Convention shall be recognized by operation of law in the other Contracting States. The certificate shall specify when and by whom the agreements under Article 17, subparagraph (c), were given.

2. Each Contracting State shall, at the time of signature, ratification, acceptance, approval or accession, notify the depositary of the Convention of the identity and the functions of the authority or the authorities which, in that State, are competent to make the certification. It shall also notify the depositary of any modification in the designation of these authorities.

Article 24

The recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly contrary to its public policy, taking into account the best interests of the child.

Article 25

Any Contracting State may declare to the depositary of the Convention that it will not be bound under this Convention to recognize adoptions made in accordance with an agreement concluded by application of Article 39, paragraph 2.

Article 26

1. The recognition of an adoption includes recognition of,

(a) the legal parent-child relationship between the child and his or her adoptive parents;

(b) parental responsibility of the adoptive parents for the child;

(c) the termination of a pre-existing legal relationship between the child and his or her mother and father, if the adoption has this effect in the Contracting State where it was made.

2. In the case of an adoption having the effect of terminating a pre-existing legal parent-child relationship, the child shall enjoy in the receiving State, and in any other Contracting State where the adoption is recognized, rights equivalent to those resulting from adoptions having this effect in each such State.

3. The preceding paragraphs shall not prejudice the application of any provision more favourable for the child, in force in the Contracting State which recognizes the adoption.

Article 27

1. Where an adoption granted in the State of origin does not have the effect of terminating a pre-existing legal parent-child relationship, it may, in the receiving State which recognizes the adoption under the Convention, be converted into an adoption having such an effect,

(a) if the law of the receiving State so permits; and

(b) if the consents referred to in Article 4, subparagraphs (c) and (d), have been or are given for the purpose of such an adoption.

2.Article 23 applies to the decision converting the adoption.

CHAPTER VI — GENERAL PROVISIONS

Article 28

The Convention does not affect any law of a State of origin which requires that the adoption of a child habitually resident within that State take place in that State or which prohibits the child’s placement in, or transfer to, the receiving State prior to adoption.

Article 29

There shall be no contact between the prospective adoptive parents and the child’s parents or any other person who has care of the child until the requirements of Article 4, subparagraphs (a) to (c), and Article 5, subparagraph (a), have been met, unless the adoption takes place within the family or unless the contact is in compliance with the conditions established by the competent authority of the State of origin.

Article 30

1. The competent authorities of a Contracting State shall ensure that information held by them concerning the child’s origin, in particular information concerning the identity of his or her parents, as well as the medical history, is preserved.

2. They shall ensure that the child or his or her representative has access to such information, under appropriate guidance, in so far as is permitted by the law of that State.

Article 31

Without prejudice to Article 30, personal data gathered or transmitted under the Convention, especially data referred to in Articles 15 and 16, shall be used only for the purposes for which they were gathered or transmitted.

Article 32

1. No one shall derive improper financial or other gain from an activity related to an intercountry adoption.

2. Only costs and expenses, including reasonable professional fees of persons involved in the adoption, may be charged or paid.

3. The directors, administrators and employees of bodies involved in an adoption shall not receive remuneration which is unreasonably high in relation to services rendered.

Article 33

A competent authority which finds that any provision of the Convention has not been respected or that there is a serious risk that it may not be respected, shall immediately inform the Central Authority of its State. This Central Authority shall be responsible for ensuring that appropriate measures are taken.

Article 34

If the competent authority of the State of destination of a document so requests, a translation certified as being in conformity with the original must be furnished.Unless otherwise provided, the costs of such translation are to be borne by the prospective adoptive parents.

Article 35

The competent authorities of the Contracting States shall act expeditiously in the process of adoption.

Article 36

In relation to a State which has two or more systems of law with regard to adoption applicable in different territorial units,

(a) any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State;

(b) any reference to the law of that State shall be construed as referring to the law in force in the relevant territorial unit;

(c) any reference to the competent authorities or to the public authorities of that State shall be construed as referring to those authorized to act in the relevant territorial unit;

(d) any reference to the accredited bodies of that State shall be construed as referring to bodies accredited in the relevant territorial unit.

Article 37

In relation to a State which with regard to adoption has two or more systems of law applicable to different categories of persons, any reference to the law of that State shall be construed as referring to the legal system specified by the law of that State.

Article 38

A State within which different territorial units have their own rules of law in respect of adoption shall not be bound to apply the Convention where a State with a unified system of law would not be bound to do so.

Article 39

1. The Convention does not affect any international instrument to which Contracting States are Parties and which contains provisions on matters governed by the Convention, unless a contrary declaration is made by the States Parties to such instrument.

2. Any Contracting State may enter into agreements with one or more other Contracting States, with a view to improving the application of the Convention in their mutual relations. These agreements may derogate only from the provisions of Articles 14 to 16 and 18 to 21. The States which have concluded such an agreement shall transmit a copy to the depositary of the Convention.

Article 40

No reservation to the Convention shall be permitted.

Article 41

The Convention shall apply in every case where an application pursuant to Article 14 has been received after the Convention has entered into force in the receiving State and the State of origin.

Article 42

The Secretary General of the Hague Conference on Private International Law shall at regular intervals convene a Special Commission in order to review the practical operation of the Convention.

CHAPTER VII — FINAL CLAUSES

Article 43

1. The Convention shall be opened for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Seventeenth Session and by the other States which participated in that Session.

2. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention.

Article 44

1. Any other State may accede to the Convention after it has entered into force in accordance with Article 46, paragraph 1.

2. The instrument of accession shall be deposited with the depositary.

3. Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in subparagraph (b) of Article 48. Such an objection may also be raised by States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the depositary.

Article 45

1. If a State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in the Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.

2. Any such declaration shall be notified to the depositary and shall state expressly the territorial units to which the Convention applies.

3. If a State makes no declaration under this Article, the Convention is to extend to all territorial units of the State.

Article 46

1. The Convention shall enter into force on the first day of the month following the expiration of three months after the deposit of the third instrument of ratification, acceptance or approval referred to in Article 43.

2. Thereafter the Convention shall enter into force,

(a) for each State ratifying, accepting or approving it subsequently, or acceding to it, on the first day of the month following the expiration of three months after the deposit of its instrument of ratification, acceptance, approval or accession;

(b) for a territorial unit to which the Convention has been extended in conformity with Article 45, on the first day of the month following the expiration of three months after the notification referred to in that Article.

Article 47

1. A State Party to the Convention may denounce it by a notification in writing addressed to the depositary.

2. The denunciation takes effect on the first day of the month following the expiration of 12 months after the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary.

Article 48

The depositary shall notify the States Members of the Hague Conference on Private International Law, the other States which participated in the Seventeenth Session and the States which have acceded in accordance with Article 44, of the following,

(a) the signatures, ratifications, acceptances and approvals referred to in Article 43;

(b) the accessions and objections raised to accessions referred to in Article 44;

(c) the date on which the Convention enters into force in accordance with Article 46;

(d) the declarations and designations referred to in Articles 22, 23, 25 and 45;

(e) the agreements referred to in Article 39;

(f) the denunciation referred to in Article 47.

1998, c. 29, Sched.

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