INTRODUCTION

On March 17, 2010, the House of Commons Standing Committee on Human Resources, Skills and Social Development, and the Status of Persons with Disabilities (hereafter the Committee) adopted a motion to study current federal support measures available to adoptive parents and their adoptive children. The motion reads:

That the Standing Committee on Human Resources, Skills and Social Development, and the Status of Persons with Disabilities examine current federal support measures that are available to adoptive parents and their adopted children, recognizing and respecting provincial and territorial jurisdictions in this regard, and following completion of its study, report back to the House with its findings.

A similar motion had been moved in the House of Commons by Jeff Watson, M.P. on October 30, 2009 during the 2^nd Session of the 40^th Parliament. The motion asked the House to instruct the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities to undertake a study of federal measures supporting adoptive parents and their children. The motion was agreed to on November 25, 2009.

A draft report was prepared during the 3^rd Session of the 40^th Parliament. However, the Committee did not have time to review the draft report before the dissolution of Parliament on March 26, 2011.

In the first session of the 41^st Parliament, members of the Committee decided to review the draft report. It should be noted that most members did not have the privilege of hearing the testimonies of witnesses during the 40^th Parliament, but members had access to the transcripts of the hearings.

During the 40^th Parliament, the Committee held seven meetings and heard from department officials, not-for-profit organizations and skilled professionals working in the field of adoption, adoption agencies, experts in Aboriginal adoptions, adoptive parents, and adopted children and youth. The members of the Committee offer their gratitude to all witnesses for sharing their stories and views on adoption. We particularly want to thank the children and young adults who shared their own personal stories. We were touched by your courage and dignity.

BACKGROUND

A. Adoption Services Are the Responsibility of Provincial/Territorial Governments

Adoption is a complex and multi-faceted issue. The adoption process and pre- and post-adoption supports vary across the country. There are different types of adoptions: private or public, domestic or international (also referred to as intercountry adoption), and Aboriginal custom adoptions. Adoption services fall under the responsibility of provincial and territorial governments. “They are responsible for case management of individual adoption arrangements and supervision of adoption agencies that place children within their jurisdictions.”^[1] All of Canada’s provinces and territories follow the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption ratified by Canada in 1996.^[2] Each provincial and territorial jurisdiction has its own adoption process, eligibility criteria, rules, legislation and administrative structure.

I have to state at the outset that adoption in Canada is a provincial and territorial responsibility and that each province and territory has its own rules and regulations on all aspects of adoption, including the adoption of children into Canada. Provinces and territories or licensed adoption agencies are responsible for case management.^[3]

Jacques Paquette, Department of Human Resources and Skills Development

B. Federal Role

Members of the Committee respect the responsibility of provincial and territorial governments for adoptions in Canada. This report focuses on measures to promote adoption and assist adoptive families. It is our wish that all children awaiting adoption in Canada can find a loving and caring adoptive family, and that adoptive parents can have the support that they need to care for their children.

The federal government has a clear role to play mainly in intercountry adoptions. Four departments are involved: Human Resources and Skills Development Canada (HRSDC), Citizenship and Immigration Canada, Foreign Affairs and International Trade Canada and the Department of Justice. HRSDC is the lead federal department responsible for intercountry adoption issues at the national and international levels and is the central authority for Canada under the Hague Convention.^[4] Intercountry Adoption Services (IAS) assumes this work for HRSDC.

The federal government plays an important role in ensuring that adoption into Canada is done in accordance with related federal laws and regulations and international treaties. For example, Canada is a signatory to both the United Nations Convention on the Rights of the Child and the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption. These international conventions are intended to protect children’s fundamental rights, provide safeguards that ensure that intercountry adoption takes place in the best interests of the child, and establish a system of cooperation among states to prevent the abduction, sale, or trafficking of children.^[5]

Jacques Paquette, Department of Human Resources and Skills Development

Citizenship and Immigration Canada (CIC) also plays an important role in intercountry adoptions. The Committee was told that adoptions proceed in accordance with the Immigration and Refugee Protection Act and the Citizenship Act as well as Canada’s international obligations. In some parts of the world, child trafficking is a concern, documentation is unreliable and few supports exist to protect children. In such cases, “CIC works with the provinces to ensure the best interests of children being adopted by Canadians are respected.”^[6] CIC informed the Committee that the Department has officers in 90 different points of service around the world that process intercountry adoption files in respect of immigration laws and regulations, international laws and the laws of the child’s country of origin.

In terms of financial support, the federal government transfers payments to provincial and territorial governments through the Canada Health Transfer and the Canada Social Transfer. It also offers support directly to adoptive parents. Parents who adopt are eligible for Employment Insurance (EI) parental benefits and a non-refundable tax credit that offsets some of the costs of an adoption. As well, adoptive parents, as is the case for biological parents, are entitled to federal child and family benefits (e.g., Universal Child Care Benefit, Canada Child Tax Benefit, National Child Benefit Supplement, etc.).

PUBLIC ADOPTION — ADOPTION IN CANADA

Although details vary from province to province, the basic process for a public adoption follows similar steps across the country. There is an initial intake meeting at which procedures to adopt are outlined, as well as information about the waiting period and children awaiting adoption. If the prospective adoptive parents want to continue with the adoption process, a formal application must then be submitted to the proper provincial/territorial authority or agency. A medical exam, a criminal record check and references are required to proceed further with the adoption. The next step is for a social worker to conduct a home study. Once the home study is completed, a report is produced and presented to the agency for approval. It may take up to a year for an application for adoption to be approved. The “best interests of the child” is a primary consideration when any decision is taken with regard to public adoptions across Canada.

Despite the best efforts of child welfare agencies, there is a serious adoption problem in Canada. Numerous witnesses stated that an estimated 30,000 children are in the care of child welfare agencies waiting to be adopted and to finally have the permanency and security offered by a permanent family. Some witnesses mentioned the concerning situation of thousands of youth who age out of care every year without permanent families. In its brief to the Committee, the Adoption Council of Canada explained that youth that age out of care “move into adulthood without connections or supports. Many drop out of school, become single parents, end up on social assistance or become homeless.”^[7] Emotional testimonies were given by young adults who talked about the impact that aging out of care without any support had on their lives and how they long for a sense of belonging. Some also shared their successes and talked about how they overcame the challenges and struggles of their lives to get an education, secure employment and create a family of their own. It is estimated that only 2,000 children and youth are adopted each year from the public system.^[8]

I have a dream of seeing every single one of the 30,000 adoptable children in Canada finding their “forever” family. The government is their guardian right now, and foster parents really are the heroes in our world. But each child, no matter their unique medical, emotional, or physical needs, deserves permanency, no matter their age.^[9]

Rev. Kimberly Sabourin, Destiny Adoption Services

What is disconcerting is that while the increase in the number of child care residential centres is stagnant, the number of foster families is decreasing. Given that we have no indication of the number of potential adoptive parents of youth with special needs, there are even more reasons to be concerned.

Our office is often called upon to advocate on behalf of these young persons who find themselves living where they can — some couch-surfing, others simply living in shelters or on the street. An increasing number of these youth turn to illicit activities to survive and end up in the youth criminal justice system. Sadly, some go as far as sharing with me their appreciation of a closed custody setting, as it provides three meals a day, a roof over their head, an education, and activities that would otherwise not be offered to them.^[10]

François Levert, New Brunswick Office of the Ombudsman

I was a foster child from the age of three. I did age out of the system. I'm now 32 years old, and I'm finally in university, of my own choice, not because of any support I ever had. When I was 20 years old, it was my last-shot opportunity to take advantage of any educational opportunities while still getting some support from the Children's Aid Society. I became a cosmetician, which left me in a low-end job with not very much security. Having a young family, that was very much a struggle, but I continued to volunteer and work very hard and build myself up so I could go to university. But I do it all on my own. So when it's a matter of trying to make a phone call to figure out what I should be doing with my very ill-tempered three-year-old, it's hard to know who to turn to. It's hard to know that sense of belonging.^[11]

Lisa Davis, as an individual

A. Raising Awareness

To fulfill the need to seek out more adoptive families, many witnesses praised the work of the Adoption Council of Canada which operates a successful program called Canada’s Waiting Children. It is the only national photo-listing web-based program “where potential adoptive parents can see pictures and profiles of waiting children in foster care.”^[12] The program to date has had an 85% success rate placing children in adoptive homes. Some witnesses also referred to “the AdoptOntario program — a ministry funded provincial databank that works to connect families in Ontario with children in CAS [Children’s Aid Society] foster care for whom an adoption plan is being sought.”^[13] The majority of witnesses agreed that more needs to be done to find adoptive families for children in foster care.

I think, again, there's just not enough focus on the fact that permanency is important. Too often we rely on that foster care system to take care of our children and youth, when there should be a focus that adoption works, that adoption is the better solution because it gives those attachments throughout adult life that the foster care system can't give you when you're being parented by a system.^[14]

Lisa Davis, as an individual

Many witnesses mentioned that there was a need for a public awareness campaign to raise the profile of adoption and inform Canadians about the thousands of children and youth waiting for a permanent home in Canada. Many believed that such a campaign could bring together waiting children and waiting parents, cutting down on the number of youth who will age out of the child welfare system without ever having the opportunity to find their permanent family.

The second [recommendation] is to work with the Adoption Council of Canada to fund a national awareness campaign about adoption in this country, including the children who are available and what they have to offer parents.^[15]

Laura Eggerston, Adoption Council of Canada

I also suggest that a national public awareness campaign be created and funding provided for a public service announcement and films. We had started on that last year with the Adoption Council of Canada, but we weren't able to go forward.^[16]

Jennifer Haire, as an individual

Recommendation 1

The Committee recommends that the federal government, in collaboration with provincial and territorial governments and the Adoption Council of Canada, develop and launch a national public awareness campaign to raise the profile of adoption and inform Canadians about the thousands of children waiting for a permanent home, while recognizing that resources committed should reflect the fact that Canada is in a period of fiscal restraint.

B.  National Data on Children in Care and Adoption

Witnesses indicated that it is difficult to really understand the extent of the adoption problem, as there is no central information database that monitors how many children are in the care of child welfare agencies, how many are Crown wards legally free for adoption, how many have special needs, how many youth age out of care without the benefit of a permanent placement in a family, how many Aboriginal children are still in the care of mainstream provincial child welfare services, etc.

One of our major concerns is, as I mentioned in the previous instance, data. We have good data on intercountry adoption, but we have almost no data on domestic adoption in this country. Our information is pathetic. We collected data at one point in time in this country on domestic adoptions. The most recent is 2004. It was only released in 2007. We can’t tell you how many there are right now in the foster care system or who are being placed for adoption. We have estimates.

We can’t answer the simplest questions about children in care. We can’t tell you how many there are. We can’t tell you how many have an adoption plan. We can’t tell you how many of them have been referred for adoption, how long they wait before being referred for adoption, how long did they wait for adoption placement, how many siblings do they have who are also free for adoption, how many are Aboriginal, how many receive adoption subsidies, how many are exiting care without family support or a connection. We can’t tell you any of that. We have no way to track trends. We don’t know why the number of children in care is increasing in some provinces, such as Manitoba, and declining in British Columbia.^[17]

Sandra Scarth, Adoption Council of Canada

The lack of even the most basic information on children in care of child welfare agencies, in foster care homes and awaiting adoption, is a critical problem. In order to devise effective adoption policies and services, the extent of what witnesses called an “adoption crisis” and its parameters must be known. Most witnesses recommended that the federal government work collaboratively with provincial/territorial governments and Aboriginal child welfare agencies to develop a national database system to collect this data, analyze it and make it public.

One is the creation of a federal data bank. Little is known about who the children and youth are who are in permanent care. Canada has not done a good job of gathering this information. This has been a huge barrier to practice planning and supporting appropriate allocation of funds to permanency programs. We need to know who these children are, and I believe that the technology is available to support the tracking of these children.^[18]

Pat Convery, Adoption Council of Ontario

There needs to be some kind of better system, and one way of starting it — a simple way of starting it — would be to call a small meeting of people from StatsCan, from provincial directors of child welfare, adoption coordinators, other people who collect justice statistics, and so on, and pull them together and ask how we could collect this data. It's a feasibility study.

This was done a number of years ago for child abuse statistics when there weren't any. It was a child welfare league, and I was there at the time. We pulled together a small group like this. It cost maybe $15,000, $20,000, and the group decided how to collect it. We now have national statistics on child abuse. This could be done for children in care and adoption as well. A feasibility study would be a start.^[19]

Sandra Scarth, Adoption Council of Canada

In 2009, HRSDC discussed with provincial and territorial directors of child welfare the creation of a framework to track how well children in care are doing. The consultations have led to the development of the National Child Welfare Outcomes Indicator Matrix (NOM) that provides a set of indicators for tracking the outcomes of children in care across jurisdictions. These indicators, when applied, can assist child welfare managers and policy makers in tracking trends and evaluating programs and policies.^[20] The NOM project has shown that federal, provincial/territorial directors of child welfare can work together to enhance knowledge about children in care. This type of project should be pursued and could complement the data gathered through a national database.

Witnesses also stated that HRSDC began funding the Child Welfare League of Canada to collect data from child welfare systems across the country, mostly around foster care and not specifically about children legally free for adoption. However, members of the Committee believe this is a good start that could actually lead to more information being fed into a new national database.

Recommendation 2

The Committee recommends that the federal government examine the possibility of directing Statistics Canada, in collaboration with provincial and territorial governments and Aboriginal child welfare agencies, to collect, analyze and make public annual data concerning children and youth in the care of child welfare agencies and specifically the number of children and youth that are legally free for adoption, while respecting privacy laws where these may apply.

Recommendation 3

The Committee recommends that the federal government examine the possibility of working with the provinces and territories to create a national database to enhance knowledge about children and youth in the care of child welfare agencies and the need for adoptive families across the country, and that the database be available online on a user-friendly website that would allow interested Canadians to search for information on adoption in Canada.

INTERCOUNTRY ADOPTION

A.  Information about the Intercountry Adoption Process

In 2010, there were 1,946 intercountry adoptions.^[21] An official from HRSDC appeared before the Committee and explained the role of the federal government with regard to these adoptions. The Committee learned about the complexities of these types of adoption and the need for adoptive parents to understand not only the adoption policies and laws of the province or territory in which they reside, but also federal immigration laws and the laws of the country of origin of the child they wish to adopt. International adoptions are subject to the Hague Convention in many countries, including Canada. It is up to the provincial or territorial government adoption office or agency to explain the requirements to parents if the child is to be adopted from a country signatory to the Hague Convention.^[22] An official from HRSDC stated that not only is the intercountry adoption process complicated and lengthy, but the costs are also significant and can range between $20,000 and $50,000.

Even the best-prepared parents can find such a process fraught with unexpected financial, cultural, legal and other considerations. They need to know about adoption policies in the country they are dealing with. They want reassurance that the child offered to them is legally adoptable; in other words, that he or she has not been a victim of exploitation and trafficking.^[23]

To assist adoptive parents through the intercountry adoption process, HRSDC’s Intercountry Adoption Services (IAS) provide information about the process on their website, as well as alerts about countries where adoptions have been suspended. It “facilitates communication and cooperation between adoption authorities in Canada at the federal, provincial and territorial levels and with foreign countries.”^[24] IAS “also collects information and data on intercountry adoption, facilitates research and disseminates information on legislation, policies and current adoption practices in other countries.”^[25] Its third function is to facilitate issue resolution in cases of unethical or irregular adoption practice.

A number of witnesses stated that there was a need for better information about the intercountry adoption process from HRSDC and CIC. Officials from CIC agreed as they indicated that their department was developing a more user-friendly website to answer the questions Canadians have about intercountry adoptions. Adoptive parents were particularly frustrated with the limited information on the two routes for an adopted child to enter the country (citizenship or permanent residency status). A more user-friendly website is now available and provides much clearer information on the different routes for an adopted child to enter Canada.

Recommendation 4

The Committee recommends that the Intercountry Adoption Services provide better information on its website about the intercountry adoption process and the different countries where adoption is open to Canadians.

B. Citizenship by Descent

CIC assists families to obtain Canadian citizenship for a child adopted in a foreign country and for that child to enter Canada either as a permanent resident or as a citizen.^[26] Two processes exist to do so: the citizenship (granted citizenship by the direct route) or the immigration process.^[27]

Prior to 2006, a Canadian parent adopting a child from abroad had to apply to sponsor the child for permanent residence under the Immigration and Refugee Protection Act (IRPA). This is often referred to as the immigration process or citizenship by naturalization. In order to obtain citizenship, the adopted child had to first become a permanent resident and then had to meet the residency requirements and other requirements of the Citizenship Act prior to being eligible for citizenship.

Legislative reforms to the Citizenship Act, which came into force on December 23, 2007, created another process for children adopted abroad to enter Canada: the citizenship process (also known as the direct route to citizenship). However, adoptive parents continue to have the option of sponsoring their child to come to Canada as a permanent resident.

The issue of citizenship by descent is intricate. Some witnesses raised concerns with the restriction on the transmission of citizenship by descent being that it can only pass to the first generation born or adopted abroad.

Section 3(1) of the Citizenship Act^[28] provides that a child born or adopted abroad with at least one Canadian citizen parent will receive citizenship by descent directly. In other words, the first generation born abroad is able to obtain Canadian citizenship by descent.

Bill C-37, An Act to amend the Citizenship Act, which came into force on April 17, 2009, introduced a second generation cut-off for Canadian citizenship by descent.^[29] Under section 3(3) of the Citizenship Act, Canadian parents born outside Canada who obtained citizenship directly cannot pass on citizenship directly to their children born abroad.

Some adoptive parents suggested that children who enter Canada through the direct citizenship route are treated unfairly as far as their ability to pass their citizenship to their children born abroad compared to children who are born in Canada or enter Canada through the immigration process and obtain citizenship in Canada. However, CIC explained that the intent of the law is “to minimize the difference in treatment between children born abroad to Canadians and children adopted abroad by Canadians who access citizenship through the direct route. Those two groups are treated equally in the sense that they’re both impacted by the first-generation limit.”^[30]

The other thing to be aware of is that the law does provide for equal treatment, but it’s an issue of who the comparator groups are. Currently the Citizenship Act looks at the comparator groups … in terms of treating those who were born in Canada and those who are naturalized in Canada equally, as far as their ability to pass on citizenship goes. If their future children are born abroad, they are citizens. The law also treats equally those who are born to Canadians abroad and those who are adopted abroad, who go through the direct route to citizenship.

Something else to be aware of is that adoptive parents, in many cases, have an option open to them, which Canadians living abroad do not. For Canadians living abroad, if the Canadian is born or naturalized in Canada, their child is born abroad as a citizen, and they’re impacted by the first-generation limit. A parent living in Canada who’s adopting internationally can choose either to apply to bring the child in as a permanent resident of Canada — so if the child is being naturalized through that route, the child would be able to pass on their citizenship — or to bring them through the direct route to citizenship, in which case they’re impacted by the first-generation limit. That’s not an option that’s available to the parents whose children are born to them abroad, because they’re citizens from birth, but they’re impacted by the first-generation limit.^[31]

Nicole Girard, Department of Citizenship and Immigration

ABORIGINAL ADOPTION

In 1951, the Indian Act was revised by making provincial laws of general applicability apply to First Nations peoples residing on reserve. This revision of the Indian Act allowed provincial governments to get involved into an area previously reserved exclusively to the federal government. It allowed the transfer of responsibilities for Aboriginal health, welfare and education services to provincial governments.

Consequently, provincial authority was given in relation to Aboriginal adoptions. Many Aboriginal children were placed in foster care or adopted. Most were sent to live with non-Aboriginal families, in other provinces or other countries. Most would never return home or have any understanding or awareness of their roots.^[32] Aboriginal communities were strongly opposed to this process and started to develop their own child welfare agencies in the late 1970s.

Child welfare services delivered to Aboriginal peoples continue to be predominantly mandated through federal and provincial statutes. Aboriginal communities across Canada have been developing their own child welfare agencies and organizations since the late 1970s. There are currently over 125 Aboriginal-controlled agencies in Canada, a majority of which are mandated by provincial governments, some of which provide preventive services as pre-mandated agencies and many are actively involved in negotiations with federal and provincial governments to change the focus of control over Aboriginal child welfare from a provincial basis to a community-based one.^[33]

Aboriginal children are currently overrepresented in the child welfare system. A witness stated that they are removed from their families and their communities at a rate that surpasses from six to eight times that of non-Aboriginal children.^[34] Consequently adoption is a very important issue for Aboriginal children and their families.

Witnesses also indicated that the root causes of the placement of Aboriginal children in care are not solely related to physical abuse, but also to neglect, poverty, lack of housing and substance abuse. The solutions to the problems encountered by Aboriginal children do not depend entirely on the availability of child welfare services. However, when services are needed, the current support provided by the First Nations agencies and by the provincial child and family services remains insufficient. An expert witness indicated that the primary obligation should be to ensure the safety and well-being of children in their family by offering services, such as family and individual counselling for the child, support for children with special needs, crisis intervention counselling, support for families, early intervention services and child care.

It’s important to think about what neglect is. Too often as Canadians we think neglect is a parent not doing his or her job properly. But when you look at the poverty and the poor housing, particularly for First Nations, you see that those are things beyond the ability of people on reserve to control, because the people do not own their own residences. Their economic development is restricted by the Indian Act. So what we have created, along with the inequitable services on reserve, is what I often term a “perfect storm of disadvantage.” If you put any child in those conditions, their parents would struggle to take proper care of them.^[35]

Cindy Blackstock, First Nations Child and Family Caring Society of Canada

A. Indian and Northern Affairs Canada^[36]: Funding for First Nations Child and Family Services

i. Funding by Indian and Northern Affairs Canada: Directive 20-1

Indian and Northern Affairs Canada (INAC) provides the funding for child welfare and family services for First Nations children on reserve, including foster care and adoption services. The funding currently provides for approximately 9,000 children in care. INAC created the First Nations Child and Family Services Program in 1990, based on the First Nations Welfare Policy, to provide funding to First Nations, their organizations and the provinces. Funding is provided to some First Nations Child and Family Services (CFS) Agencies through a funding formula known as directive 20-1.^[37] The population of children (less than 18 years old) influences how much funding each First Nations CFS Agency receives. The formula is based on the assumption that each First Nations CFS Agency has 6% of on-reserve children placed in care. In reality, the percentage varies, which may create inequity. The formula does not take into consideration factors that might have an impact on costs, such as differences in community needs or the services already available. Furthermore, directive 20-1 dates back to 1988 and has not been updated to reflect the current needs of child welfare services in each province and the increasing number of Aboriginal children in care.

Recommendation 5

The Committee recommends that the federal government examine the perceived inequities between child welfare and family services available on reserve and services provided off reserve.

In order to assure equitable access to services, a proper system to collect data is necessary to know how many children are in care and what kind of services are actually needed to help these children and their families. INAC collects limited information on the services provided to First Nations children. It does not have information on the volume of activities carried out by First Nations agencies, the number of assessments, or the main reasons why children come into care. INAC also collects only partial information on the outcomes of funding in relation to safety, protection or the well-being of children living on reserve. The collection of data and monitoring of the work carried out by First Nations agencies are essential if we are to know how INAC’s funds are used and if these funds are actually helping First Nations children.^[38]

Recommendation 6

The Committee recommends that Aboriginal Affairs and Northern Development Canada collect information and develop performance indicators regarding the number of First Nations children in care and the outcomes of services provided to them by First Nations Child and Family Services Agencies.

ii.  Enhanced Prevention-Focused Approach to Funding

In 2007, INAC began to revise the funding formula and to take an enhanced prevention-focused approach (EPFA) in the development of its policies and focused more on supports for families that would keep them together. The new funding formula created under the EPFA was first applied to First Nations agencies in Alberta. Today, six provinces have moved to the EPFA, and those include Alberta, Nova Scotia, Saskatchewan, Quebec, P.E.I., and Manitoba. Post-adoption subsidies and support have also been implemented, particularly in Alberta and in Nova Scotia.

Under the enhanced prevention-focused approach, we introduced three streams of funding: operations, prevention, and maintenance. We also provided some additional supports within each of those streams and then it’s up to the recipients to manage within the funding.

With the six provinces we’ve already moved forward on, we’re investing $100 million of additional resources into First Nations child welfare on reserve. We have reached about 68% of the First Nations children on reserve through that approach.^[39]

Odette Johnston, Department of Indian Affairs and Northern Development

 Some witnesses stated that this new approach has a focus on prevention and keeping families together and is thus a step forward from directive 20-1. The EPFA also allows for post-adoption subsidies and supports for adoptive families, filling a great need and increasing the likelihood that adoptions will not be disrupted and First Nations children will find a permanent family.

Recommendation 7

The Committee recommends that Aboriginal Affairs and Northern Development Canada proceed with the expansion of the enhanced prevention-focused approach in the remaining jurisdictions that have not yet moved to that approach, taking into account the current period of fiscal restraint.

B. Customary Adoption of Aboriginal Children

Witnesses also mentioned custom adoptions common in many Aboriginal communities. The term “custom adoption” means different things to different indigenous communities in Canada and around the world, with practices varying within the First Nations communities themselves. Custom adoption can simply be explained as the cultural practices of Aboriginal peoples to raise a child, by a person who is not the child’s parent, according to the custom of the First Nations and/or Aboriginal community of the child. It is said to be an extension of custom care and ensures that Aboriginal children maintain their cultural, linguistic and spiritual identity.^[40] Custom adoption is sometimes seen as guardianship. It is most likely consensual. The child in some cases will be adopted by relatives within the Aboriginal community in which he or she was born. The distinctive characteristic of customary adoption is that the adoptee will know the identity of his or her biological parents and will likely continue to have contact with his biological family.

Over the last 20 years, First Nations have reasserted their ability, their traditional laws for adoption. First Nations communities all across the country, for thousands of years, have practised adoption. It just simply wasn’t called that. There isn’t a word that really is proximal to adoption, because in a First Nations concept, it is a child being adopted by a community. It is introducing to the child multiple caregivers and creating a safety net so that if any one individual caregiver is no longer able to care for the child, there are adults in the circle who understand their responsibilities and their love and relationship to that child and they step in.^[41]

Cindy Blackstock, First Nations Child and Family Caring Society of Canada

Recognition of custom adoption is sparse, inconsistent and still contested even where its legality is confirmed.^[42] Nonetheless, there are success stories such as the Custom Adoption Program offered by the Yellowhead Tribal Services Agency in Alberta which has successfully completed over 100 adoptions. The international award-winning Custom Adoption program offered by Yellowhead Tribal Services Agency (YTSA) in Alberta is an exemplar on how to ensure Aboriginal children of all ages are provided with stable and loving Aboriginal family homes that support their cultural identity… This program situates adoption as a natural process derived from First Nations traditions and ensures that proper supports are provided both pre, during and post adoption to the birth parents, birth extended family and Nation and to the adoptive parents, extended family and Nation, as well as to the child. The holistic and culturally based provision of support services is particularly important as many of the children that YTSA places have special needs or have experienced some form of childhood trauma. Children are adopted in traditional ceremonies attended by community members to celebrate the joining together of families (the birth and adoptive families) that the child has made possible. This amazing program has successfully completed over 100 adoptions and many of the children are older children or children with special needs. There has never been an adoption breakdown. This type of success is unparalleled in mainstream child adoption programs.^[43]

C. Mainstream Adoption of Aboriginal Children

The mainstream adoption of Aboriginal children is a very sensitive issue generating strong differing opinions, but it is a subject that cannot be ignored. As previously stated, Aboriginal children are overrepresented in child welfare agencies. It is at times very difficult for these agencies to find a proper match with an Aboriginal adoptive family. Some witnesses stated that whereas kinship care, customary adoptions and mainstream adoptions of Aboriginal children by Aboriginal families should be the first option, children should not be left for years in foster care homes if a proper match to a non-Aboriginal adoptive family can be made. These witnesses indicated that non-Aboriginal adoptive parents that have demonstrated that they are prepared to respect and promote the culture of their future adopted children, and are ready to dedicate themselves to ensure that these children have a clear sense of their Aboriginal identity, should not be prohibited from adopting Aboriginal children if no proper match to an Aboriginal family can be found. Where appropriate and in the best interests of the child, opportunities for Aboriginal children to keep in contact with their family of origin should be provided to further nurture their cultural identity.

Some people think Aboriginal kids shouldn't get adopted by white families, but I think a good family is what matters, no matter what colour, size, or sexual orientation they are. Everyone deserves a permanent family, a go-to person who will always be there.

I hope this committee can help support adoption so that more kids like me can get adopted.^[44]

Miranda Eggerston, As an individual

POST-ADOPTION SERVICES

A. Lack of Support

Direct post-adoption services fall under the jurisdiction of the provinces and territories. However, the federal government plays a role in research and knowledge, and supports various not-for-profit groups that provide services to adoptive families. One of the key issues that was raised by most witnesses is the lack of, or the difficulty finding post-adoption services that can help families, particularly those who adopt children with special needs. It has also been argued that depending on the definition of “special needs” one accepts, it can be said that most children over the age of two who are legally free for adoption in Canada have special needs because of loss, a usually traumatic past and a lack of a permanent place to call home. The older the child, often the more difficult it is for the child to attach to his new permanent family and the more challenges the adoptive family will face. The Committee was told that peer-to-peer support programs and other forms of support can help adoptive parents through the difficult transition period to a permanent family unit and avoid disruptions and failed adoptions.

Those of us who work in the adoption field are faced with the enormous task of providing support to families who are facing a myriad of issues: fetal alcohol spectrum disorder, post-traumatic stress disorder, grief, anger, attachment, the effects of bullying, and the effects of prejudice. We need support in order to support Canada’s kids.^[45]

Rev. Kimberly Sabourin, Destiny Adoption Services

B. Provincial and Territorial Subsidies

Witnesses indicated that provincial and territorial governments provide post-adoption subsidies to some adoptive families. These subsidies can provide an incentive to adopt and level the playing field for lower-income families who would like to adopt a child but need financial support to meet the needs of an adopted child. The post-adoption subsidies vary depending on where a family lives.^[46] Some witnesses suggested that there should be a standard rate across the country. However, this is a matter of provincial and territorial jurisdiction.

The federal government offers financial support through payments to provincial and territorial governments such as the Canada Health Transfer and the Canada Social Transfer, as well as to adoptive families through Employment Insurance (EI) benefits and tax incentives which are discussed further in the next section of this report.

C. Federal Programs to Assist Adoptive Families and Adopted Children

Although most post-adoption services fall under provincial and territorial jurisdiction, the federal government, through the Public Health Agency of Canada (PHAC), offers some financial support for programs that could be geared toward families and their children. The Community Action Program for Children (CAPC), a community-based children’s program delivered by PHAC and jointly managed with the provinces and territories, is one example. This program provides long-term funding for programs promoting the healthy development of children from birth to six years of age.^[47] According to information on the PHAC’s website, there are 440 CAPC sites across Canada. PHAC spent $54.4 million on CAPC projects in 2009-2010.^[48] Joint Management Committees (federal, provincial/territorial ministries and community organizations) decide what the regional priorities are and allocate funds accordingly. CAPC sites can offer a variety of activities and supports including parenting classes, drop-in groups and also specialized programs to meet particular needs.^[49] This program was mentioned by some witnesses who have found it useful in the past. The CAPC could assist adoptive families facing challenging attachment issues and other difficulties with their adopted children through the creation of specialized programs geared to those needs.

Recommendation 8

The Committee recommends that the Joint Management Committee of each Community Action Program for Children’s site allocate funding to specialized programs for adoptive parents and their adopted children if there is a demonstrated need for such services in their region.

Some witnesses referred to the funding that was made available through HRSDC’s Social Development Partnerships Program (SDPP) to the Adoption Council of Canada. Some of the funds were used to offer training and set up adoption support groups across the country. Other funds were spent to recruit more adoptive families for children waiting for permanent homes in Canada. The program was evaluated and rated positively by its participants.^[50] However, funding ran out before the Adoption Council of Canada could meet the needs expressed across the country for such a program.

D. Post-adoption Services for Children with Fetal Alcohol Spectrum Disorder and their Families

Witnesses also mentioned the challenges associated with caring for a child with Fetal Alcohol Spectrum Disorder (FASD) and the need for more and better post-adoption services for those adopted children and their families. It should be noted that biological parents of children with FASD also face difficulties getting a proper diagnosis and treatment for their child as well as adequate assistance and information on how to properly parent a child with FASD. There is no national data on the proportion of children in care with FASD or the number that are awaiting adoption or adopted each year. However, a recent study on the economic cost of children with FASD in care of child welfare agencies in Manitoba revealed “that children who are diagnosed with FASD enter care at an earlier age, tend to become permanent wards, and spend a greater proportion of their lives in care.”^[51] In 2006, the total costs to the child welfare system for 400 children with FASD in Manitoba were $9,504,094.^[52] These costs are substantial and could justify spending some dollars to facilitate post-adoption services for adoptive parents willing to care for a child or youth with FASD.

Fetal alcohol spectrum disorder, or FASD, is a common problem for families with adopted children to cope with. Many families struggle with their child’s unexplained behaviours for years before they finally receive a diagnosis of FASD.^[53]

Kim Jones, as an individual

I want to tell you a bit more about FASD because that is something we need to address nationally, not just province by province. As a parent of a child with FASD living in Ontario, I have travelled to Saskatchewan, to B.C., and to Alberta to find out how to parent my child. That’s not okay. Our parents are already struggling financially, physically, emotionally. We’re barely holding on, but I have to go out of province to Saskatchewan to get strategies to be a parent to my child. That’s not okay.^[54]

Paula Schuck, Canadian Coalition of Adoptive Families

Albeit health issues fall primarily within provincial/territorial jurisdiction, the federal government currently plays a role in facilitating research and the diffusion of knowledge on FASD. It supports two main initiatives aimed at increasing knowledge about FASD, preventing prenatal exposure to alcohol and improving outcomes for those affected by this disorder.^[55] These two initiatives, the FASD initiative^[56] and the First Nations, Inuit and Aboriginal FASD program,^[57] could be enhanced to provide more information, specifically related to the diagnosis and prognosis of children with FASD and on how to parent a child with this disorder.

A FASD National Strategic Projects Fund is also available through the Public Health Agency of Canada (PHAC) to support the development, exchange and evaluation of knowledge. The fund is not soliciting proposals at this time as funding has already been allocated until 2012. A witness suggested that the federal government, through the research funding agencies (e.g., the Social Sciences and Humanities Research Council of Canada), could also fund research on FASD among adoptees.

Finally, the Canada Revenue Agency administrates a number of tax measures for families with children with disabilities that, in some cases where eligibility criteria are met, can help families with children and youth with FASD. These measures include the disability tax credit, the child disability benefit, and the medical expenses tax credit among others.

Recommendation 9

The Committee recommends that the Public Health Agency of Canada develop a portal site to disseminate information about best practices in Fetal Alcohol Spectrum Disorder (FASD) treatment and intervention, and that this portal also be used to share knowledge specifically about adopted children and youth with FASD and the supports available to assist them and their families in managing this disorder.

Recommendation 10

The Committee recommends that the Social Sciences and Humanities Research Council of Canada or the Canadian Institutes of Health Research fund peer-reviewed research on Fetal Alcohol Spectrum Disorder, and work collaboratively with the Public Health Agency of Canada to disseminate the new knowledge that would be generated by this initiative.

FEDERAL FINANCIAL SUPPORT — THE EMPLOYMENT INSURANCE (EI) PARENTAL BENEFITS AND THE ADOPTION EXPENSES TAX CREDIT

A. EI Parental Benefits

Currently, adoptive parents are entitled to 35 weeks of parental leave under the EI system in Canada (except in Québec^[58]).^[59] According to an official from HRSDC:

In 2008-09, adoptive parents received almost $24 million in EI benefits. Over the same period, according to the 2009 Monitoring and Assessment Report, adoptive parents used, on average, more than 26 of the 35 weeks of benefits available, without factoring in sharing. On average, they received a weekly benefit of $408.^[60]

Jacques Paquette, Department of Human Resources and Skills Development

Biological parents are entitled to parental leave and birth mothers are entitled to an extra 15 weeks of EI maternity benefits. Many witnesses stated that adoptive parents need more time to adjust, recover and bond with their adopted children. The need for more time is so crucial that some witnesses explained that they had to take an unpaid leave and face economic challenges in order to meet their responsibilities as adoptive parents. Many witnesses suggested that the federal government should create a new benefit (e.g., an adoption transitional leave) that would provide for an extra 15 weeks of leave. Here is a testimony on this issue:

Firstly, we ask that the committee make a recommendation to amend the Employment Insurance Act and Canada Labour Code to provide adoptive parents with the same benefits that birth or natural parents enjoy. We are not asking for adoptive parents to have access to the maternity benefits program of 15 paid weeks, as was done in the cases of Schafer v. Canada and Tomasson v. Canada. Nor are we asking for a 15-week extension for the parental leave program. What we are asking is that the federal government recognize the needs of adoptive parents to be as valid and substantial as a parent who gives birth. We are asking the committee to recommend creating an adoption leave benefit program for the primary caregiver of a child who comes into a family by adoption.

We feel that the current employment legislation discriminates against adoptive parents. Adoptive parents face many challenges in their journey to build a family. These challenges can have significant mental, physical, and emotional effects for the adoptive parents. However, these are largely misunderstood by the general public. Post-adoption depression is well documented but rarely talked about, much like post-partum depression was in the past. Adoptive parents face numerous challenges in meeting the medical, emotional, and psychological needs of children who may come to them having had severely damaging experiences.^[61]

Cindy Xavier, Adoption Support Centre of Saskatchewan

To decide on a proper policy to address the issue of an adoption transitional leave, the Committee has to take into account the decision in Tomasson^[62] rendered by the Federal Court of Appeal in 2007 to understand the difference between maternity and parental benefits and the purpose for which each benefit was created. Leave to appeal of this decision was brought before the Supreme Court of Canada but was denied. Consequently, the interpretation and conclusions of the Court of Appeal stand.

i. The Federal Court of Appeal Decision in Tomasson

Mrs. Tomasson and her husband adopted two children as infants. With respect to each child, Mrs. Tomasson applied for maternity and parental benefits and on both occasions, was granted parental benefits but was denied maternity benefits. Mrs. Tomasson brought her case before the Federal Court of Appeal (FCA) and alleged discrimination under the Canadian Charter of Rights and Freedoms^[63] on the ground that the Employment Insurance Act treats biological and adoptive mothers differently.

The FCA concluded that the purpose of maternity benefits is solely to compensate a biological mother for time lost at work to recover from childbirth. The Court’s views were that in granting maternity benefits to birth mothers, Parliament rightly recognized that pregnancy and childbirth justified the granting of particular benefits by reason of the physical and psychological consequences of pregnancy. Recovery from childbirth is a biological reality faced by biological mothers, as opposed to adoptive mothers; thus, there is no violation of section 15 of the Charter. Justice Nadon found that childbirth recovery compensation purpose of maternity leave is readily apparent in the fact that women who give their children up for adoption are granted maternity leave, but no parental leave. He noted that were the purpose of maternity benefits to be for bonding purposes rather than childbirth recovery, it would be equally possible for adoptive and even biological fathers to claim maternity benefits in addition to parental benefits.

In light of the reasons for the decision in Tomasson, granting maternity benefits to adoptive parents might bring allegations of discrimination towards biological mothers as their need to recover from childbirth would not be recognized in the legislation.

The Committee appreciates the concerns raised by witnesses as to the special needs of adoptive parents and their request for an adoption leave benefit for the primary caregiver of the child that comes into a family by adoption. Given the period of fiscal restraint, the Committee is not prepared to make a recommendation in this regard.

Finally, on January 4, 2012, the federal government announced a change to the employment insurance program for parents committed to adopting children in their care. Parents who foster children and who want to adopt them will now be eligible to receive employment insurance parental benefits. This change will raise public awareness about children that are wards of the Crown who need to find a permanent family, and will provide support to parents who want to adopt them.

B. Adoption Expenses Tax Credit

The 2005 federal government’s budget introduced a non-refundable tax credit for eligible adoption expenses for the completed adoption of a child under the age of 18 years.

Eligible adoption expenses include:

• fees paid to an adoption agency licensed by a provincial or territorial government;
• court, legal and administrative expenses;
• reasonable travel and living expenses for the child and the adoptive parents;
• document translation fees;
• mandatory fees paid to a foreign institution;
• any mandatory expenses paid in respect of the immigration of that child; and
• other reasonable expenses required by a provincial or territorial government or an adoption agency.^[64]

The maximum eligible adoption expenses claimable in respect of any particular adoption were set at $10,000 for each minor child. This amount has been indexed since 2005, thus increasing it to $11,128 in 2011. The credit reduces income tax by a maximum of 15% of that amount (or $1,669.20).^[65] It may be split between two adoptive parents, but the combined expenses claimed for an adopted child cannot exceed $11,128. Here are the eligibility criteria:

To be eligible for the credit, a parent must submit proof of an adoption in the form of a Canadian or foreign adoption order, or otherwise demonstrate that all of the legal requirements of the jurisdiction in which the parent resides have been met in completing the adoption. Parents will be able to claim the credit only for the taxation year in which an adoption is finalized, and will be able to include expenses incurred from the earlier of the time the child’s adoption file is opened with the provincial or territorial ministry responsible for adoption or a licensed adoption agency, and the time, if any, that an application related to an adoption is made to a Canadian court.^[66]

Witnesses suggested changes to the adoption expenses tax credit. Some indicated that they would like the list of eligible expenses to be broadened to include post-adoption expenses such as specific therapies for adopted children with special needs. As mentioned earlier, some post-adoption medical expenses could potentially be claimed under the existing medical expenses credit. Other witnesses would have liked to see an increase in the maximum amount claimable to reflect the increasing costs of intercountry adoptions. Finally, it was also suggested that the adoption expenses tax credit should be reviewed to allow for eligible expenses to be claimed in the year they were incurred.

One is to increase the international adoption tax credit to a minimum of $20,000 from the current $10,000. This would more reflect the true cost of international adoption. They range from $20,000 to $50,000, depending on which country you’re adopting from and which province you’re adopting from.^[67]

Wesley Moore, as an individual

When they’re able to, families who are motivated and interested in adoption will cover the costs by having private adoption professionals do their home study, attend private training programs, and cover some of the costs.

The actual costs can’t be done as a tax benefit until the year they adopt, which could be several years later. It seems reasonable that as an incentive to families to consider becoming ready to adopt — because we need them more than they need us — this would make it more reflective of the actual amount families fund out and allow them to do it in the year they incur those costs. I think that would be a huge benefit.^[68]

Pat Convery, Adoption Council of Ontario

Recommendation 11

The Committee recommends that the Department of Finance Canada review the maximum amount claimable under the adoption expenses tax credit to ensure that it still meets the needs of adoptive parents.

Recommendation 12

The Committee recommends that the Department of Finance Canada review the eligibility criteria attached to the adoption expenses tax credit to allow, if necessary, for eligible adoption expenses to be claimed in the year they are incurred.

C. Other Issues Raised by Witnesses

Many witnesses indicated that there is a need for more federal leadership if we are to put an end to the serious adoption problem in Canada. While recognizing the need to respect provincial/territorial jurisdiction over adoptions, some witnesses suggested that there is a need for a national adoption strategy that would include clear targets to reduce the number of Crown wards and ensure that all children awaiting adoption have a fair chance of finding their permanent family.

Other witnesses mentioned the challenges facing adoptive families who move to another province or territory while in the process of adopting a child. In some cases, potential adoptive parents have to start the adoption process all over again. Some witnesses also pointed out the difficulty of adopting a child that is in the care of child welfare services in another province or territory. It was argued that it is sometimes more difficult to adopt inter-provincially than to adopt internationally. Witnesses called for the establishment of a protocol that would facilitate inter-provincial adoptions. However, the Committee was told that such a protocol already exists and has been revised in 2006.^[69]

It’s a protocol called … the “Provincial/Territorial Protocol on Children and Families Moving Between Provinces and Territories.” That was conciliated as of December 15, 2006. … It covers several issues, but one section deals specifically with adoption and post-adoption services. I understand this protocol was signed by all provinces except Quebec, but Quebec supported the content of the protocol. The reference here is that I think the question was raised during the discussion you had with some of the witnesses. So there is already a tool in place, and what I was saying is that I think the issue is more for the provinces to see how they can improve their own tool.^[70]

Jacques Paquette, Department Human Resources and Skills Development Canada

Some witnesses also called for the establishment of a national child and youth commissioner that could, among other functions, see that the rights of children and youth in care are respected. The Convention on the Rights of the Child (CRC), which Canada ratified in 1991, calls on state parties to establish mechanisms to ensure its implementation.^[71]

At the provincial level, all provinces with the exception of Prince Edward Island have children’s advocates or ombudsmen. Their main role is one of advocacy, as well as ensuring that the rights of children and youth are taken into account within communities, in government practice, as well as in policy and legislation.^[72] It has been suggested that a national child and youth commissioner could aid in the communication and liaison amongst the different provincial children and youth advocates, as well as between their offices and the federal government, with the likely outcome of improving the respect of children’s rights across the country.^[73]

CONCLUSION

The Committee was shocked to learn that there may be as many as 30,000 children awaiting adoption in Canada, and that thousands of youth age out of care without having the ongoing support and care only a permanent family could give them. Members of the Committee agree that there is a serious adoption problem in Canada, and that this issue can only be resolved if all levels of government, including Aboriginal leaders, share information and work together in the best interests of children in care of child welfare agencies across the country.

As a first step, the Committee thinks that the federal government, in cooperation with provincial and territorial governments, must take immediate action by launching a national awareness campaign to raise the profile of adoption and inform Canadians about the thousands of children waiting for a permanent home in Canada. The Committee believes that the solutions to the problems raised during the course of this study have to be based on best practices and shall respect measures and programs already in place in the various jurisdictions.

At the federal level, the Committee recommends allocating funds under existing health and social programs to target the needs of adoptive families and children. Members of the Committee also recommend potential changes to the adoption expenses tax credit. In addition, the Committee made some recommendations to facilitate the work of those who are directly involved with the welfare of Aboriginal children. Along with all the witnesses that shared their stories and knowledge with the Committee, members expect that the measures recommended in this report are only the beginning, and that more action will be taken to support adoptive families and their adopted children in the years to come. Foremost, it is our hope that more Canadian families who think of adopting a child will feel that they have the support they need to open their heart and their homes to a child or youth in need of a permanent family.