Adoption and Openness - Let's Compare

  • May 24, 2021
  • Imran Kamal, barrister and solicitor, LSO Certified Specialist – Indigenous Legal Issues

Historically, adoption has been masked by secrecy and shame. It was based on the notion that cutting off a child’s biological ties created safety and a fresh new start. However, adoption practice has undergone significant change. Adoptees and birth parents have pushed to end the secrecy and shame from the past. And thus, openness was born!

Openness did not evolve out of a legal requirement. Clinical child centered practice has occurred with or without a court order in all forms. The reality is that adoption today includes some form of openness, even when there is not an openness Order. Openness includes any form of contact post adoption ranging from a continuum of letters/pictures to face to face and can be identifying or non-identifying. It can occur with any member of birth family – siblings, birth parents, aunts, grandparents etc. Openness has been flexible, recognizing that it is an evolving relationship based on a child’s needs, wishes, developmental stage, changing circumstances and issues and does not interfere with the adoptive family’s ability to form a cohesive family unit.

However, there is little research with respect to openness. I would be bold enough to say that there is almost no research with respect to openness in Canada and no research for public adoptions (through the CAS).

The Court of Appeal released three (3) decisions in 2019/2020 specifically on the issues of post-ESC access within the context of Summary Judgment Motions.

The trilogy of cases referred above changed the landscape of post-ESC access, which affects openness. Particularly, the most recent decision in 2020 provided an access Order to an 18-month baby which changed the legal backdrop.