Citizenship for adopted children - the new Canada Act for 2008

The impetus for Canada's new citizenship law for adopted children arises out of a 1998 Federal Court of Canada decision. (the McKenna case) That court found the different treatment of biological and adopted children in the citizenship law to be discriminatory and contrary to the Canadian Human Rights Act.

After several false starts Canada has finally passed new legislation to grant citizenship to children adopted abroad. As a group, adopting parents are used to feeling "left out" or ignored. The Federal Government should be commended for addressing issues of importance to adopting parents.

There has been much fanfare about this new rule, and it is frequently referred to as "Automatic Citizenship." But is it really? Numerous statements have created high expectations among adopting parents. For instance:

"This new legislation will enable Canadian families who adopt foreign-born children to apply for Canadian citizenship without having to go through the immigration process." (Immigration Lawyer website)

"A foreign-born adopted child would acquire Canadian citizenship as soon as the adoption is finalized, as long as the parents have applied for citizenship in the child's name before they leave home." (Official government statement)

I don't think either of these statements will prove to be correct.

Background

In order to understand how the new law fits into the overall process of obtaining citizenship for adopted children, it is helpful to look at the current process.

The immigration and adoption process requires prospective adopting parents to:

Complete a homestudy recommending them as adoptive parents for the child. Prepare a dossier to be sent to the foreign country. File an application to sponsor the child, as an immigrant, with Citizenship and Immigration Canada. Obtain a Letter of No Objection or a Letter of Approval (depending on the country) from the provincial government or Hague Central Authority. Sign a Medical Condition statement

After all these steps have been completed, Citizenship and Immigration Canada will issue a visa for the child to enter Canada as a permanent resident. The actual PR card is received by mail after the child arrives in Canada.

The final step is for the adopting parents to apply for Canadian citizenship by submitting the required evidence. Currently, this step takes several weeks. (In the recent past it had grown to a 30-month delay, but this bottleneck has been resolved). Once the child has Canadian citizenship, a Canadian Passport can then be applied for.

That is the basic immigration process (in some cases, it can get more complicated). In adoptions from Hague Convention countries an additional approval process is also required (not described here).

The New Law

Adopting parents come to the citizenship paperwork process near the end of a long process of preparing a ton of paperwork to complete homestudies and to send adoption dossiers overseas. None of that will change under the new law. Most of the steps described above will still be necessary.

At least one parent will have to be a Canadian citizen for the new law to apply. Permanent Residents of Canada who adopt internationally will not be able to use the new law.

The two steps that may be eliminated under the new procedures are the application for a Visa and the child's foreign immigration medical, but that will only happen in some cases (as detailed below).

The group of adopting parents who will be helped the most by the new law are expatriate Canadians living abroad who adopt overseas and have no intention of returning to Canada in the near future. Their child will be able to obtain Canadian citizenship by applying to the appropriate Canadian Embassy overseas. This group, however, represents less than 10% of Canadian adopting parents. What about the other 90%?

International adopting parents living in Canada fall into three groups depending on which country the child comes from:

Countries where the adoption is completed before the parents travel to pick up their child. Examples of this are Taiwan and Ethiopia. The new law should benefit in these situations. Any overseas delays in the child being granted Canadian Citizenship can be worked out before the parents travel. Any unexpected delays will be upsetting to parents but at least parents won't be waiting in a foreign country while the problems get resolved. Countries where the adoption is completed while the parents are in the foreign country, and expect to bring their child home with them. Examples of this are Russia, Kazakhstan and China. It is hard to predict how the process will work in these cases. It depends how quickly the local Canadian Immigration office is able to process requests. What we do know is that if delays become common, parents will have the option of using the old system of applying for a visa and then obtaining citizenship after they return to Canada. Countries where either:

The adoption is completed in Canada after the child has been here for a period of time. Examples are Korea, Jamaica, Philippines and most U.S. States. Since there is no foreign adoption order, the new law will have no effect in these cases.

The adoption is completed in the foreign country after the child has lived in Canada with the adopting parents for a period of time. Examples are Slovakia and Florida. The new law will not benefit these groups either. (There is however, a way to convert these applications to the new law - see USA section of the FAQs)
Other Issues

There are several parts of the new law, which may have a significant impact on the adoption process.

Immigration officers, before granting Canadian Citizenship, must be satisfied:

That the adoption is creating a true parent-child relationship and is not for some other purpose (This provision exists in the current law and is frequently used by immigration officers to prevent abuse of Canada's immigration process.) Whether the adoption complies with the laws and rules of the country of origin. Sometimes, the answer to this question is easy to determine and sometimes very difficult. In these latter situations, it will clearly hold up issuance of citizenship. That the adoption itself is in the best interest of the child. There is no question that the best interest of the child should be at the heart of every adoption, but is this the best time to try to make this determination? There may already be an adoption order in place by this time, and in many cases the parents will already be bonding with and caring for their child. The governments of many provinces already have a process in place to determine that an adoption is in the child's best interest. The Hague Convention procedures are also directed to determine just that issue. In a Hague Convention adoption, the Central Authority in the child's country of origin previously determines that (from that country's perspective) the adoption is in the child's best interest.
Will this process create a delay in the foreign country? A recent government analysis of these procedures published in the Canada Gazette states:

"Citizenship officers will verify that the adoption meets all of the criteria before granting Canadian citizenship to an adopted child".

Immigration Canada recently added a web page entitled Important Notice for Adoptive Parents which states:

"The Government of Canada is committed to protecting the rights of families and children. We have obligations under international Conventions to ensure children are not abducted, bought or sold, or removed from their biological families without their biological parents' legal consent. In some cases, extra steps in the citizenship process will be needed to make sure the adoption is truly in the child's best interest.

In order to be granted Canadian citizenship, a child must meet a number of requirements. The Citizenship Act and its Regulations specify that children must be protected when they are adopted from foreign countries. In certain countries lengthy investigations may be needed to determine a child's status. This can delay a child's entry into Canada. If a child is not found to be available for adoption, the application for Canadian citizenship will be refused."

This is not the language of "automatic citizenship". On the contrary this is the language of a government committed to living up to its responsibilities under international adoption conventions. The statement continues:

"There are instances where, following screening by the visa office, an application for citizenship may be denied where requirements under local law or international law are not met."

Determining whether all local and international laws' requirements have been met may not be a quick or easy process.

Lastly, if the overseas immigration officer decides not to grant citizenship, there is no appeal of that decision at all. Many groups objected to the lack of appeal process before the regulations were published but it fell on deaf ears. The right of appeal remains however in the Permanent Resident Visa process.

Conclusion

The new Citizenship law may not meet the high expectations adopting parents have for it. The law will not grant "automatic citizenship". Citizenship will be granted abroad if there is an adoption order in place before coming home and if the Immigration Officer is satisfied that certain requirements have been met.

There are still many unanswered questions surrounding the new law and we would like to hear about your experiences. As we begin to get feedback, this article will be updated.

Douglas Chalke has been actively involved in adoption for the past twenty-three years. A practising lawyer, he has lectured and written on issues in adoption and for many years was actively involved in proposals for adoption reform. Mr. Chalke has developed standards of practice in adoption and is widely known as a leader in the adoption field. Mr. Chalke has provided advice and counselling to birth mothers, birth fathers, adopting parents, social workers, and to lawyers in several hundred adoptions.

Since 1983, Mr. Chalke has operated and managed a law firm in Vancouver. This firm has been involved in all aspects of family issues and specializes in the fields of adoption and the resolution of disputes by mediation.

Mr. Chalke is 62 years of age and has been the Executive Director of Sunrise Family Services Society (a British Columbia government licensed adoption agency) since its inception twelve years ago. Mr. Chalke has considerable experience with international adoption and has visited orphanages and government ministries across the world. Mr. Chalke is an administrator with many years experience assisting children to find homes in Canada, and in assessing, educating and approving the families who are going to provide those homes

How is the 2009 Citizenship Act applied to approved for children?

The Canadian government has passed a new citizenship law that resolves a variety of issues about Canadian citizenship (Bill C-37). Buried in that law is a provision that has passed unnoticed, until now, which puts limitations on the Canadian citizenship rights of some internationally adopted children. Recent articles in the National Post, the Globe & Mail and the Ottawa Citizen have brought these provisions to the attention of the adoption community.

Although this new law will come into effect on April 17, 2009, I hope it is not too late for adopting parents to express their views (read Comments from adopting parents so far. Also read Complex Citizenship Laws Anger Adopting Parents). The provisions of the new law are complex, so I have set out a series of questions and answers at the end of this article, which I hope will clarify the finer points of the new rules.

A good way to begin understanding the issues is to read the newspaper articles "Critics Fear Two-Tier Citizenship" and "Citizenship Changes Could Create Inferior Citizens". For the perspective of Robin Hilborn of Family Helper, see "Canadian law denies citizenship to children of foreign adoptees"

Essentially the legislation provides that the children of some internationally adopted children will not have a right to Canadian citizenship. In practice, this is likely to affect only a small proportion of all adopted children. What upsets adopting parents, however, is the notion that their children will have a lesser class of citizenship. In effect, the children are being discriminated against. Adopting parents do not want to feel that their children are second-class citizens.

Adopting parents in Canada are losing their tolerance for being discriminated against. Resentment at the inherent discrimination against adopting families built into the EI legislation has been simmering for the past decade (for a detailed description of the discrimination which adopting parents feel about this subject, see our earlier Spotlight, "Adoption in the Workplace"). Now a new law that discriminates against their children is going to have a galvanizing effect on the adoption community.

The Annual Report to Parliament on Immigration, 2008, begins with the following words:

"The Citizenship Act, under which CIC grants citizenship to eligible newcomers, affirms that all Canadians have the same rights, privileges and responsibilities whether they are citizens by birth or naturalization."

That will change as of April 17, 2009. In an attempt to solve the problem of Canadian citizenship being handed down generationally to people who don't actually live in Canada, the government has reduced the citizenship rights of some internationally adopted children, and effectively created a lesser class of citizenship for them. Was this really necessary? It feels like a sledgehammer was used to kill a flea. Could not a more elegant solution have been found to actually deal with the perceived problem?

The Report of the Senate Standing Committee, which reviewed Bill C-37, states:

"Such a distinction would grant citizenship to a first generation born outside Canada while denying it to their children and subsequent generations were they to be born abroad. Such a provision strikes your Committee as arbitrary and unfair."

The Committee also added: "Rather, the Committee urges the government to ensure that all aspects of new citizenship legislation are Charter-compliant and consistent with Canadian values".

As a result of concerns by the Immigration Department about the confusion surrounding the new law, it recently issued a clarification.

In a published response to the concerns of adopting parents, the Minister states:

"Critics have entirely missed the point of how changes to our citizenship law, which come into effect on April 17, 2009, will protect the value of citizenship."

I don't think that is true. Adopting parents probably do understand the concerns that the government has about protecting the integrity of Canadian citizenship. It is the specific solution, which the government has come up with that they are protesting.

It is an insult to adopting parents to say that their children now have a lesser class of Canadian citizenship. The government needs to rethink these provisions and find a solution that does not put limitations on the rights of citizenship for internationally adopted children. The government should find a solution which fits the actual problem. This article is a call to action for adopting parents. Adopting parents who wish to make their views known to the government should do so immediately. Prior to doing so, however, please read the questions and answers set out below. The law is quite technical and there is already confusion about who the law would apply to. This is not helped by the government's own website, which is not clear. If, after reading the article and the new rules, additional questions arise that should be asked in the list below, please send them to me and I will add them to the article.

For the purposes of this article, I will use the terms Class A citizenship to refer to full-rights citizenship and Class B to refer to the new, lesser-rights citizenship.

Q1. Who does the new law apply to?
A. The new law applies to adopted children who receive their citizenship abroad, pursuant to the new direct citizenship provisions enacted in Canada on December 23, 2007. [See also Q10 below]

Q2.Who is not subject to the new rules?
A. The new rules do not apply to the following:

(a) adopted children born in Canada;

(b) Internationally adopted children who come to Canada on a permanent resident visa and subsequently obtained Canadian citizenship after their arrival in Canada. Up until now this has been the situation of most (but not all) children adopted overseas and brought to Canada. They will not be affected by the new rule, despite what it says on the Canada Immigration website.

The web posting "New Citizenship Rules" states:

"This limitation will also apply to foreign-born individuals adopted by a Canadian parent. The adopted children of Canadian citizens will be considered to be the first generation born abroad. This means that:

If a person born outside Canada and adopted by a Canadian parent has a child outside Canada, that child will not be a citizen by birth;........"

This information is misleading. In a clarifying email from the Ministry of Citizenship & Immigration (which doesn't seem to be posted anywhere at the moment), an official makes it clear that the restriction on obtaining Canadian citizenship only applies to situations described in the above quote and where the parent of the child born outside of Canada originally was granted Canadian citizenship overseas pursuant to the new 2007 direct to citizenship route. This misstatement on the government website has caused some parents to believe that the new law will apply to their children, when in fact it will not.

(c) The new law will not apply to children who would normally fall into the Class B citizenship definition, but whose parent is working overseas with the Canadian government (Federal or Provincial) or serving overseas in the armed forces. Instead, these children will have Class A citizenship. However, children whose parents are working for Canadian corporations, the United Nations, who are on vacation, or who are otherwise travelling outside of Canada do not get this exemption and will have Class B citizenship. This is a distinction which is hard to justify. If you work for one kind of employer your children are Class A citizens, and if you work for a different kind of employer your children are Class B citizens. Surely there is a better way to sort this out.

Q3. What is the most serious consequence of this new law?
A The most serious consequence that is evident at this time is that a child born overseas to an adopted person has a reasonable chance of being a "stateless individual" (this would be the adopting parents' grandchild). This leads to a number of questions:

(a) Why would this happen? - Only some countries grant citizenship to a child born in their country (Canada and the USA being examples of countries that do that). Many countries rely on the citizenship of the child's parents or some other criteria. The child would be born stateless if they did not derive a citizenship through either parent and they are also born in a country where birth on soil does not give access to citizenship. As a stateless person, the child would have no obvious way to come to Canada.

(b) Is there a remedy? - A child of a Canadian who was born stateless abroad would have the option of applying for a grant of citizenship on the basis of statelessness. The amended Citizenship Act has provisions for granting citizenship to stateless children of Canadian citizens, but the child must first live in Canada for three years. This stateless child would have neither a passport nor a right to enter Canada, so it is not even clear how the child could travel to Canada to establish residence. One can only hope that there will be a benevolent immigration officer overseas who has empathy for the predicament that the Class B Canadian citizen finds himself in, and will grant the stateless child some sort of visa to come to Canada. This event will be 20, 30 or 40 years into the future. It is hard to predict what the world will look like then in terms of population and pressures on the Canadian immigration system. What will immigration officers say to a Class B Canadian citizen in 30 years who wants to bring their stateless child back to Canada? Adopting parents today will be the grandparents of that child. We can all hope it's a sympathetic response.

(c) Any born-abroad Canadian adopting parents could immediately face the problem outlined in (b) above. Again, this is because the provisions of the new law apply to children born outside of Canada as well as to those adopted.

Q4. What happens if my adopted child has Class B Canadian citizenship and gives birth to a child overseas?
A That child, your grandchild, will not acquire Canadian citizenship. He or she may be eligible to be sponsored as a permanent resident, and then apply for citizenship as soon as he or she becomes a permanent resident.

Q5. How does it work for subsequent generations? Do they have Class A or Class B Canadian citizenship?
A Generational Chart Showing Whether Descendants have Class A or B Canadian Citizenship Rights:

Parents Child

First
Generation (Adopting Parents)

Second
Generation
(your adopted child)

If this child receives Canadian Citizenship overseas under the 2007 law, he/she will have Class B Canadian Citizenship

Third
Generation
(your grandchild)

If the child of the adopted child above is born outside of Canada, he/she will not be entitled to automatic Canadian Citizenship. The child may apply to enter Canada on a Permanent Resident Visa. If he/she subsequently obtains Canadian Citizenship, then it will be a Class A Citizenship.

Fourth Generation
(your great-grandchild)

The child of this Class A citizen parent, if born inside Canada, (the Adoptive Parents' great-grandchild) will have Class A Citizenship.

Q6. Can I do anything to avoid this new law if I am going to adopt a child in the future?
A Yes you can. Do not use the new direct citizenship route for children adopted overseas. Only use the old route of applying for a permanent resident visa for the child, and after the child is landed in Canada apply for Canadian citizenship. This child will have a Class A Canadian citizenship.

Adopting parents report that they are consistently advised by Canada Immigration officials to use the new direct citizenship route. Anyone considering which route to follow should read our previous Spotlight - Citizenship for Adopted Children: Canada's New Law for 2008. In addition, adopting parents should obviously think about whether they wish their children to have Class B Canadian citizenship, and what effect that might have on their grandchildren.

Q7. Does the new law contravene the Charter of Rights?
A I don't know. The government has not invoked the "Notwithstanding Clause" under the Constitution of Canada, so the Charter does apply to this legislation. In the 1998 McKenna case, the Canadian Human Rights Code was used to say that it was discriminatory to adopted children not to be able to obtain citizenship overseas. It was this case that 10 years later finally led to the new citizenship law of 2007 permitting just that. On the other hand, adopting parents were not successful in invoking the Charter of Rights to overturn the inherent discrimination in the EI legislation in the 1997 Schafer case. It does seem likely that eventually someone will challenge this notion of Class B citizenship for adopted children under the Charter of Rights. A Charter challenge could also come based on discrimination against persons born abroad to Canadian citizen parents.

Q8. Are the new rules retroactive?
A Section 3 (4) of the Citizenship Act states:

"Subsection (3) does not apply to a person who, on the coming into force of that subsection, is a citizen."

What does this clause mean? It means that if you are a citizen on the day the new law comes into force, then you will not lose your citizenship. Unfortunately, the Immigration Department is interpreting this to mean that a person will not lose their Canadian citizenship, but the new provisions will change the quality of your citizenship.

So, for the adoption world, the law will be retroactive and will have the following two results:

(a) Children who have been adopted and obtained their Canadian citizenship overseas since December 23, 2007 will have their Canadian citizenship downgraded from Class A to Class B on April 17, 2009. This will come as an unhappy surprise to Canadian adopting parents, who have pursued the direct citizenship route as a result of non-stop directions from Canada Immigration officials to adopting parents to take the new route; and

(b) Adopting parents who were born outside of Canada. Any adopting parents in this category will have their citizenship changed from Class A to Class B on April 17, 2009. As a result, when they adopt overseas, their children are not entitled to direct Canadian citizenship. Their only route will be to sponsor the child as a landed immigrant, obtain a permanent resident visa, and subsequently apply for Canadian citizenship.

A CIC official has verbally confirmed that these provisions are retroactive. We have requested that the government confirm to us, in writing, that the law is not retroactive. We will update this section when we receive the government's written answer.

Q9. Does this new law only apply to adopted children?
A No, in addition to adopted children, the new rules apply to children born outside of Canada, unless their parent(s) fit within a specific definition. In addition, Bill C-37 (the new law) also deals with many other citizenship issues unrelated to adoption.

Q10. If I am adopting parent who was born abroad to Canadian parents, can I adopt overseas?
A You can adopt, but if you are single you will not be able to use the direct citizenship route. Your child will have to be admitted to Canada with a PR Visa. The reason for this is that the new law applies to children of Canadians born to Canadians overseas, as well as to those adopted overseas. However, if you are married to a Class A Canadian citizen, then you will be able to use the direct citizenship route.

Q11. Is there any "patch" that the government could use to repair this law?
A The application of the new law should be suspended until the adoption community has a real chance to have input, and perhaps a better solution is found. One suggestion being proposed would provide an exception to the new law if the adopted child lived in Canada for a certain unspecified period of time. In other words, the child would start with Class B Canadian citizenship, and if the child eventually qualified by living in Canada for a certain period of time, they would graduate to Class A Canadian citizenship. Whether this would be a satisfactory solution for Canadian adopting parents remains to be seen.
Note: These concerns are not limited to children adopted abroad, but also apply to children born abroad. The implications of this law are likely to be seen more immediately for born-abroad Class B citizens than adopted-abroad Class B citizens.

Q12. Why was the adoption community in Canada not consulted before this law was brought into force?
A The adoption community in Canada was unaware of these new rules until articles appeared in the press in mid-January, 2009. How did this happen? - Bill C-37 received royal assent on April 17, 2008. It comes into force on the first anniversary of that date, April 17, 2009. For over a year preceding the passing of the new law, the government consulted with various interest groups who could be affected by changes to the Citizenship Act. It does not appear to have been made clear, however, that a Class B citizenship would be created for children adopted overseas. On December 13, 2008, the regulations under this new Act were published in the Canada Gazette, and provided for a 30-day comment period. Unfortunately, this comment period extended over the Christmas and New Year's vacation and expired in early January. Buried in the comment attached to the Canada Gazette was the statement , "The aforementioned limitation will also apply to foreign-born persons adopted by a Canadian parent". It was only when these proposed regulations were published that one person noticed this and has been raising an alarm for the past few weeks.
Surely, if the Government of Canada was going to do something as dramatic as create Class B citizenship rules for adopted children in this country, it is incumbent on them to really bring this to the attention of adopting parents, the Adoptive Families Association, the Provincial Adoption Bureaus, Adoption Agencies across Canada, and the Adoption Council of Canada. It is incredibly dismissive of the adoption community to have been treated in this manner by the government.

Q13. What can I do to stop this new law?
A Perhaps nothing. The new law (Bill C-37) has been passed, given Royal assent, and the regulations under it are in force. Some parents are currently considering filing a complaint with the Canadian Human Rights Commission. And, of course, someone with deep pockets could take a Charter of Rights challenge to try to have the law declared unconstitutional. On the other hand, perhaps adopting parents in Canada can speak out with one voice and object to what has happened. Adopting parents in Canada represent a potent political force. To date, this has been largely untapped. It is time that the Canadian adoption community make its influence felt. There is no reason why we cannot have an Adoption Caucus of MPs and Senators who listen to what's important to the adoption community in Canada. The natural focus of these efforts could be the Adoption Council of Canada, which can harness some of the tremendous energy and opinions of adopting parents in this country. Hopefully, this issue of Class B Canadian citizenship for some internationally adopted children will provide a focus for adopting parents to work together.

In the meantime, parents who wish to comment on what has happened should contact their Member of Parliament and the Adoption Council of Canada.

Family Helper Article : http://www.familyhelper.net/news/090129citizenship.html

Douglas Chalke has been actively involved in adoption for the past twenty-three years. A practising lawyer, he has lectured and written on issues in adoption and for many years was actively involved in proposals for adoption reform. Mr. Chalke has developed standards of practice in adoption and is widely known as a leader in the adoption field. Mr. Chalke has provided advice and counselling to birth mothers, birth fathers, adopting parents, social workers, and to lawyers in several hundred adoptions.

Since 1983, Mr. Chalke has operated and managed a law firm in Vancouver. This firm has been involved in all aspects of family issues and specializes in the fields of adoption and the resolution of disputes by mediation.

Mr. Chalke is 62 years of age and has been the Executive Director of Sunrise Family Services Society (a British Columbia government licensed adoption agency) since its inception twelve years ago. Mr. Chalke has considerable experience with international adoption and has visited orphanages and government ministries across the world. Mr. Chalke is an administrator with many years experience assisting children to find homes in Canada, and in assessing, educating and approving the families who are going to provide those homes