It is not uncommon for Canadians to adopt children from abroad.
The Citizenship Through Adoption Process
Obtaining citizenship through adoption is a two-part process.
Part 1 is used to determine whether at least one of the adoptive parents is a Canadian citizen born or naturalized in Canada and is eligible to pass on citizenship.
Part 2 is used to assess the adopted person’s eligibility for Canadian citizenship.
For the adoption of minors, the adoption must be carried out respecting the best interests of the child, must create a genuine parent-child relationship that permanently severs the legal ties with the child’s biological parents and must be carried out in accordance with the laws of the place where the adoption took place and the laws where the adoptive parents resided at the time. Finally, the adoption cannot have been entered primarily for the purpose of obtaining a Canadian immigration or citizenship benefit.
These requirements are discussed in more detail below.
For the adoption of adults, an additional requirement is that a genuine parent-child relationship must have exited before the person turned 18 and at the time of adoption.
One Generation Limit
Since 2009 Canada has limited citizenship by descent to one generation. As such, it is important to note that eligibility for citizenship through adoption is limited to adopted children of a Canadian parent who is a citizen by birth in Canada or by naturalisation. There is an exception to this if the Canadian parent was employed outside Canada for the Canadian government, the Canadian Forces or a Province or Territory at the time of the adoption.
As well, adopted persons who become Canadian citizens through the citizenship by adoption process will not be able to pass on their citizenship to any children they have outside Canada on or after April 17, 2009, nor will any child they adopt outside Canada on or after April 17, 2009, be eligible to obtain Canadian citizenship through this process.
Expatriate Adoptions
If Canadian citizens living abroad wish to adopt children, they will generally need to obtain a letter from their last province or territory of residence indicating that the foreign adoption, once completed, would be recognized in the province or territory should the family return to Canada.
Medical and Criminal Record Checks
People who are becoming citizens through adoption do not have to undergo a medical examination, criminal record check or security check.
Is the Adoption Bona Fide
As noted above, a Canadian cannot sponsor an adopted child under the age of eighteen unless the adoption was in the best interests of the child. The Hague Convention on Adoption guides this definition. As well, the adoption could not have been entered into primarily for the purposes of acquiring an immigration privilege.
An adoption is considered to be in the best interests of the child if it took place under the following circumstances:
- A competent authority conducted or approved a home study of the adoptive parents;
- Before the adoption, the child’s parents gave their free and informed consent to the child’s adoption;
- The adoption created a genuine parent-child relationship;
- The adoption was in accordance with the laws of the place where the adoption took place;
- The adoption was in accordance with the laws of the province of landing, and the competent authority of the child’s province of intended destination has stated that it does not object to the adoption; and
- The country in which the adoption took place and the child’s province of intended designation are parties to the Hague Convention of Adoption OR if either the country in which the adoption took place or the child’s province of intended destination is not a party to the Hague Convention of Adoption, then there is no evidence that the adoption is for the purpose of child trafficking or undue gain.
Best Interests of the Child
The “best interests of the child” is a concept found in many legal instruments that deal with children’s issues such as the Convention on the Rights of the Child, the Hague Convention on lntercountry Adoption and the Divorce Act.
The term generally refers to the deliberation that courts and administrative tribunals undertake when deciding what type of services, actions, and orders will best serve a child, as well as who is best suited to take care of a child.
A number of factors related to the circumstances of the child and the circumstances and capacity of the child’s potential caregiver(s) are considered, with the child’s safety and well-being the most important concern.
Unlike adoptions under the permanent residence process, in citizenship applications the genuineness of the parent-child relationship and the legality of the adoption are considered as independent requirements from the best interests of the child.
Where there is provincial or territorial involvement, they consider the best interest of the child in making their decision to write a letter of approval or no objection. Each province has unique standards, although they are similar.
Where there is no provincial involvement, visa officers must assess information like the home study report, ensuring consents from the biological parents have been obtained, and ensuring there has been no child trafficking or gain.
As well, officers may consider whether there is evidence that the genuine and informed consent of the biological parents has been provided. If an officer is not satisfied that such a consent was obtained, the officer may interview the biological parent or any of the persons involved in the process.
Genuine Parent-Child Relationship
Adoptions under Canada’s Citizenship Act are considered to be full adoptions, meaning that they fully and permanently sever the pre-existing legal parent-child relationship. There are several factors that are considered, including:
- Inheritance rights – the maintenance of inheritance rights by an adoptive child in relation to their natural parents can be considered, although it is not determinative;
- Free and informed parental consent
- Relative adoptions – In such situations an ongoing relationship and contact with the natural parent or extended family member may still occur, but the natural parent should no longer be acting as a parent and the new parent-child relationship between the adopted child and the adoptive parents should be evident and not simply exist in law.
Jurisprudence
As the Federal Court of Canada noted in Kenne v. Canada (Citizenship and Immigration), 2010 FC 1079, for the purpose of determining whether the adoption is in accordance with the laws of the place where the adoption took place, immigration officers should not base their conclusion solely on their own interpretation of the foreign law, and should consider any documentary evidence filed which explains it.
The words “genuine parent and child relationship” do not require that there existed a fully developed parent and child relationship between the adoptive parents and the children at the time of a sponsored application. More often than not, the genuine relationship is created as a result of the adoption. As such, as the Federal Court noted in Young v Canada (Minister of Citizenship and Immigration), 2015 FC 316, the mere fact that adoptive parents want to bring their adopted children with them to the country where they live is not a presumption that they are attempting to create an adoption of convenience:
Finally, as the Federal Court of Canada note in Mclawrence v. Canada (Citizenship and Immigration), 2015 FC 867, an adoptive parent’s intent of providing a better quality of life for an adopted child in Canada is a “legitimate goal” and not an indicator of mala fides.
Kafala
Kafala is a form of guardianship that is found in many Muslim countries which does not sever the pre-existing legal parentage between the birth parents and the child and does not create legal parentage between the child and the guardians. As such, kafala arrangements are not covered by the Hague Convention and are not considered adoptions in Canadian or international law. Canadian immigration legislation accordingly does not recognize these types of arrangements for the purpose of international adoption.
It is possible for children under kafala arrangements to immigrate permanently to Canada via humanitarian & compassionate considerations or applications.
KafalaManuals
The following are two IRCC training manuals on adoption.
Citizenship Adoption PolicyIntercountry Adoption Process
PM03 Adoptions