May 11, 2015

Adopted Children and Citizenship: What Parents Need to Know

In today’s world, there are many ways to create a family. For an increasing number of parents, adoption has become a means to welcome children into a loving home. An interesting issue arises in considering the provisions of the Citizenship Act (“Act”) as they apply to children adopted by Canadian citizens. Previously, a child adopted by a Canadian citizen had to become a permanent resident of Canada before he or she could become a Canadian citizen. This was a clear distinction between biological and adopted children of Canadian citizens, as biological children were automatically granted citizenship were and not required to first obtain permanent resident status.

Bill C-14, an Act to Amend the Citizenship Act, changed things for children adopted by Canadian citizens. As of 23 December 2007, a child of a Canadian citizen can now apply directly for Canadian citizenship, provided certain criteria are met. Section 5.1 of the Act discusses these important criteria. Specifically, subsection 5.1(1) of the Act requires that the adoption:

(a) was in the best interests of the child;

(b) created a genuine relationship of parent and child;

(c) was in accordance with the laws of the place where the adoption took place and the laws of the country of residence of the adopting citizen; and

(d) was not entered into primarily for the purpose of acquiring a status or privilege in relation to immigration or citizenship.

The Citizenship Regulations outline a number of additional factors to be considered in applying the test under section 5.1(1) of the Act, including that the birth parents give their free and informed consent to the adoption, that the pre-existing legal parent-child relationship was permanently severed by the adoption, and that there is no evidence that the adoption was for the purpose of child trafficking or undue gain within the Hague Convention on Adoption, among other factors.

Recent jurisprudence has established that the test to show that an adoption was “entered into primarily for the purpose of acquiring a status or privilege in relation to immigration or citizenship” (subsection 5.1(1)(d) of the Act) is a stringent one. Both the Federal Court of Appeal and the Federal Court have been clear that simply because an adoptive parent wishes to give his or her child a better life in Canada, this does not automatically mean that the adoption was entered into for immigration reasons (also called an “adoption of convenience”). A deciding Officer must rely on strong evidence show it was an adoption of convenience, and must also carefully consider the other possible reasons for the adoption. The Officer cannot speculate and make unreasonable inferences about the adoptive parent’s intentions.

For more on this, see the cases of: Canada (Citizenship and Immigration) v. Dufour, 2014 FCA 81,Young v. Canada (Citizenship and Immigration), 2015 FC 316, Smith v. Canada (Citizenship and Immigration), 2014 FC 929).

It will be interesting to see how the jurisprudence continues to unfold as more Canadian citizen parents make use of subsection 5.1 of the Act. On the whole, the intention behind this provision is a step in the right direction, as it is important that our legislation and policy continue to evolve along with our modern realities.

For more information on adopted children and citizenship, please contact us.