CITIZENSHIP FOR ADOPTED CHILDREN: CANADA'S NEW LAW FOR 2008

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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.

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.

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. See also Frequently Asked Questions.

Doug Chalke
Executive Director
Sunrise Family Services Society
Vancouver, BC
www.SunriseAdoption.com

http://sunriseadoption.com/articles/citizenship_for_adopted_children_canada039s_new_law_for_2008