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

1 Section 5 (2) of the Adoption Act, R.S.B.C. 1996, c. 5, is repealed.

2 Section 6 (2) is repealed and the following substituted:

(2) A director or an adoption agency may only place a child for adoption with prospective adoptive parents who have been approved to receive placement of a child

(a) on the basis of a homestudy completed in accordance with the regulations, if the prospective adoptive parents reside in British Columbia, or

(b) in accordance with the laws of the jurisdiction in which the prospective adoptive parents reside, if they reside outside British Columbia.

3 Section 22 (3) is amended by striking out "A copy of the court application" and substituting "Notice of the court application".

4 Sections 24 and 25 are repealed and the following substituted:

When a director or adoption agency is a guardian

24  (1) When consent to the adoption of a child is given by the parent or other guardian who requested a director or an adoption agency to place the child for adoption, the director or the administrator becomes the sole personal guardian of the child until

(a) an adoption order is made,

(b) the consent is revoked, or

(c) the guardianship of the director or of the administrator, as the case may be, is terminated under section 24.1.

(2) When a director or an administrator becomes the sole personal guardian of a child under subsection (1), the Public Guardian and Trustee becomes the child's sole property guardian until, as set out in subsection (1) (a) to (c), the director or the administrator, as the case may be, ceases to be the sole personal guardian of the child.

Terminating guardianship by court order

24.1  (1) The following may, in respect of a child, apply to terminate the sole personal guardianship of a director or an administrator:

(a) the child's parent;

(b) a director, if a director is the sole personal guardian of the child;

(c) the administrator, if the administrator is the sole personal guardian of the child.

(2) If an application is made under subsection (1), the following persons must be served notice of the court application:

(a) each parent of the child affected by the application;

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

(c) the director, if the director is the guardian of the child and is not the applicant;

(d) the administrator, if the administrator is the guardian of the child and is not the applicant;

(e) the Public Guardian and Trustee;

(f) any other person on whom the court considers it appropriate to serve notice.

(3) The court may grant an exemption from a requirement to serve notice under subsection (2) (a) and (b) if the court considers it appropriate.

(4) At the conclusion of the hearing, the court must make one of the following orders in the child's best interests:

(a) that the sole personal guardianship of the director or the administrator, as the case may be, is terminated;

(b) that the director or the administrator, as the case may be, remains the sole personal guardian of the child.

Placement by a director or an adoption agency

25 If a director or an administrator has care and custody of a child under section 23 or is the guardian of a child under section 24, the director or the administrator may place the child with

(a) a caregiver, or

(b) a prospective adoptive parent who has entered into an agreement under section 77.2 with the director or the administrator.

5 Section 73 is amended by striking out "70, 70.1 and 71" and substituting "70 (2) and 71".

6 Section 77.2 is amended by striking out "a caregiver" and substituting "a caregiver or a prospective adoptive parent" and by striking out "the caregiver." and substituting "the caregiver or the prospective adoptive parent."

7 The following sections are added:

Authorization, non-contravention, immunity from legal action
and validation – non-resident adoptive parent

102  (1) This section applies if, before the date this section comes into force, a director, an adoption agency, a director of child protection or a parent or other guardian of a child placed the child for the purposes of adoption with a person who, at the time of the placement, was not a resident of British Columbia.

(2) Despite any decision of a court to the contrary made before or after the coming into force of this section, if a director, an adoption agency, a director of child protection or a parent or other guardian of a child placed the child for the purposes of adoption in the circumstances described in subsection (1) of this section, the person who placed the child is conclusively deemed not to have contravened section 5 (2).

(3) A person has no right of action and must not commence or maintain proceedings for a remedy set out in subsection (4) of this section for the reason that the placement of a child in the circumstances described in subsection (1) of this section, but for subsection (2) of this section, would have contravened section 5 (2).

(4) For the purposes of subsection (3), a person has no right of action and must not commence or maintain proceedings

(a) to claim damages or compensation of any kind from the government or any person,

(b) to obtain a declaration that damages or compensation is payable by the government or any person, or

(c) for any other remedy against the government or any person.

(5) The adoption of a child by a person with whom the child was placed for the purposes of adoption and in the circumstances set out in subsection (1) of this section is not invalid by reason that, but for this section, the placement would have contravened section 5 (2).

(6) This section is retroactive to the extent necessary to give full force and effect to its provisions and must not be construed as lacking retroactive effect in relation to any matter because it makes no specific reference to that matter.

Authorization, non-contravention, immunity from legal action
and validation – use and disclosure of information

103  (1) This section applies if, on or after January 16, 2006 and before this section comes into force, a director used or disclosed, in contravention of section 73, information provided to a director under section 70 (4) or 70.1.

(2) Despite any decision of a court to the contrary made before or after the coming into force of this section, if a director used or disclosed information in the circumstances set out in subsection (1), and the use or disclosure of the information contravened neither section 73 of this Act with respect to sections 60, 69, 70 and 71 of this Act nor the Freedom of Information and Protection of Privacy Act,

(a) the use or disclosure is conclusively deemed not to have contravened section 73, and

(b) the director is conclusively deemed not to have contravened section 73.

(3) A person has no right of action and must not commence or maintain proceedings for a remedy set out in subsection (4) of this section by reason that the use or disclosure, by a director, of information in the circumstances set out in subsection (1) of this section, but for subsection (2) of this section, would have contravened section 73.

(4) For the purposes of subsection (3), a person has no right of action and must not commence or maintain proceedings

(a) to claim damages or compensation of any kind from the government or any person,

(b) to obtain a declaration that damages or compensation is payable by the government or any person, or

(c) for any other remedy against the government or any person.

(5) This section is retroactive to the extent necessary to give full force and effect to its provisions and must not be construed as lacking retroactive effect in relation to any matter because it makes no specific reference to that matter.

Commencement

8  This Act comes into force on the date of Royal Assent.

 
Explanatory Notes

SECTION 1: [Adoption Act, section 5] removes the requirement for prospective adoptive parents to reside in British Columbia.

SECTION 2: [Adoption Act, section 6] sets out the requirements for approval of prospective adoptive parents who live outside British Columbia.

SECTION 3: [Adoption Act, section 22] requires notice of, rather than a copy of, a court application to be served, consistent with the court process under section 24.1 of the Act, as added by this Bill.

SECTION 4: [Adoption Act, sections 24, 24.1 and 25]

• sets out when a director or an adoption agency becomes the sole personal guardian of a child and when a director or an adoption agency ceases to be the sole personal guardian of a child;
• sets out when the Public Guardian and Trustee becomes the sole property guardian of a child and when the Public Guardian and Trustee ceases to be the sole property guardian of a child;
• creates a court process to terminate the sole personal guardianship of a director or administrator respecting a child;
• sets out the circumstances in which a child may be placed with a prospective adoptive parent.

SECTION 5: [Adoption Act, section 73] removes the requirement that information provided to a director under sections 70 (4) and 70.1 of the Act not be used or disclosed except for the purpose for which it was provided.

SECTION 6: [Adoption Act, section 77.2] provides for agreements between a director or an administrator and prospective adoptive parents respecting care, custody or guardianship of a child.

SECTION 7: [Adoption Act, sections 102 and 103]

• provides for authorization, non-contravention, immunity and validation in respect of the placement of a child with a person who is not a resident of British Columbia;
• provides for authorization, non-contravention, immunity and validation in respect of the use or disclosure, contrary to section 73 of the Act, of information provided to a director under section 70 (4) or 70.1 of the Act.