Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 26 - Evidence - Meeting of June 21, 2007
OTTAWA, Thursday, June 21, 2007
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-14, to amend the Citizenship Act (adoption), met this day at 10:45 a.m. to give consideration to the bill.
Senator Art Eggleton (Chairman) in the chair.
[English]
The Chairman: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology. This morning the committee will examine Bill C-14, to amend the Citizenship Act with respect to the issue of adoption. To present the substance of this bill and answer our questions, we have before us witnesses from the Department of Citizenship and Immigration. We have Mark Davidson, Director, Legislation and Program Policy Citizenship; Margaret Dritsas, Nationality Law Advisor, Citizenship Branch; Karen Clarke, Acting Manager, Citizenship Branch; and Alain Laurencelle, Legal Counsel. Welcome to all of you.
Mark Davidson, Director, Legislation and Program Policy Citizenship, Department of Citizenship and Immigration: I am happy to be here and I thank honourable senators for their interest in this important bill.
[Translation]
I have been following these deliberations on Bill C-14 very closely. I am happy to support you in your clause-by- clause review of the bill, and I hope that my colleagues and I can answer any questions you may have.
[English]
Currently, the Citizenship Act makes a distinction between children born to Canadian citizens residing in another country and children who are born in another country and adopted by Canadian citizens. When Canadian citizens living abroad give birth to a child, Canada welcomes a new citizen of this country at the same time.
By contrast, when Canadian citizens travel abroad to welcome an adopted child into their family, before Canada welcomes that child as a citizen the child must first apply for permanent residence in Canada and be accepted. Whereas children born outside of Canada to a Canadian parent acquire their citizenship by descent and need only apply for a proof of citizenship, adopted children must first normally enter Canada via the immigration stream before they can enter the citizenship stream.
Bill C-14 seeks to eliminate that permanent residence step. In this way, children whose applications meet the standards set out in this bill will be granted citizenship while they are still overseas and so they will be able to enter Canada for the first time as Canadian citizens.
[Translation]
This legislation has been the product of extensive study and has strong support of parliamentarians, families and stakeholder groups such as the Adoption Council of Canada, the Adoption Council of Ontario, and the Adoptive Families Association of British Columbia. It also has the strong support of provinces and territories.
During extensive consultations, some legitimate concerns were raised. Two amendments to the bill were passed by the House of Commons dealing with the coming-into-force date and the tabling of regulations.
[English]
Bill C-14 and its regulations contain a number of safeguards to ensure that Canadian citizenship is protected. For example, the existence of a genuine parent-child relationship must be demonstrated. It must also be clear that the best interests of the child are being met and that a proper home assessment has been completed. The birth parents must have given their consent to the adoption; we must be satisfied that it was not an adoption of convenience and no person will achieve unwarranted gain as a result of the adoption.
In many cases, the adoption must meet the requirements of the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption. Henceforth, we will call that the Hague convention for simplicity.
Adoptions must be approved by the country where the child lives and, if the parents are resident in Canada, by the relevant provincial or territorial government here in Canada. The Department of Citizenship and Immigration is not involved in the adoption process directly, but we continue to be responsible for the process that allows a foreign-born child adopted by a Canadian citizen parent in another country to obtain citizenship here in Canada.
[Translation]
Bill C-14 respects the fact that adoption falls within provincial and territorial jurisdictions. This bill does nothing to alter that. Whether adoptions are handled under the Citizenship Act, or the Immigration and Refugee Protection Act, provincial and territorial governments work closely together to support families, to ensure program integrity and to protect children.
[English]
My colleagues and I will be happy to answer any questions you have.
The Chairman: Thank you for the presentation outlining the provisions and intent of the bill. Before my colleagues begin their questions, I want to ask about a presentation made to the House of Commons committee dealing with this matter by the Canadian Bar Association, specifically its national citizenship and immigration law section. This is dated June 2006, so I do not know how much of it has been incorporated since then.
I have just gone through it this morning. They make recommendations, for example that provisions similar to subsection 5(2) of the Immigration and Refugee Protection Act, IRPA, be included in Bill C-14 to ensure that any regulation implemented under the bill be brought before the appropriate committee of Parliament for further consultations and discussions to ensure consistency with the IRPA. That is one recommendation
Then they spend a fair bit of time and concern on appeal rights. They say the appeal rights involve going to the Federal Court of Canada for judicial review of the decision to refuse to grant citizenship. They point out that it is a very lengthy, costly process and they think something more akin to what is done at the Immigration Appeal Division would be a better alternative. They say that if somebody is turned down relative to Bill C-14, there is a very onerous procedure to follow. Their final recommendation deals with developing clear procedures, guidelines and training for the visa officers making these determinations.
Could you comment on the concerns raised by the Canadian Bar Association and how you see them incorporated here?
Mr. Davidson: On the first matter, concerning the tabling of regulations, there is a provision in the Immigration and Refugee Protection Act, which was passed by Parliament in 2002, that indicates that draft regulations must be tabled with both Houses of Parliament in advance of them being approved by the Governor-in-Council. A similar provision had not been placed in this bill when it was tabled by the government last spring, but the House of Commons Standing Committee on Citizenship and Immigration had made a number of amendments to this bill during their consideration in June of last year. Indeed, one of those amendments was done in order to respond to that specific request on the part of the Canadian Bar Association.
Bill C-14 as it now exists — as it was passed by the House and it was passed at second reading by the Senate — includes clause 3.1, which would add a new section 27.1 to the act, indicating that the minister must table regulations with both Houses before they come into effect. However, it clarifies that the regulations do not need to be retabled if they are amended after they have been first tabled. Those similar qualifications about the tabling of regulations exist in the Immigration and Refugee Protection Act. Indeed, this clause is very similar to the clause that the Canadian Bar Association was referring to.
On your second point, the question of the appeal, the standard appeal mechanism that exists in the Citizenship Act for individuals who are appealing a decision of either the citizenship minister or the minister's delegate is actually judicial review to the Federal Court. That is the mechanism that exists for all individuals who are appealing a decision of the minister. Decisions of the minister or the minister's delegate are the relevant types of decision that would take place here under Bill C-14; and the bill that was tabled by the government had indicated that the judicial review mechanism should be the appropriate appeal.
The Chairman: Before you go on, the Canadian Bar Association is arguing that that is a very costly and limiting procedure. It is only on review of what the legal facts of the case are as opposed to hearing other evidence — like you would at an immigration appeal division hearing. It is very limiting with respect to the evidence that can be provided and it is very costly. How is that overcome here? Many of the people doing adoptions are perhaps not in the best position to afford all the money that might be involved in going to court.
Mr. Davidson: The House standing committee had reviewed this issue and made an amendment to Bill C-14 last June, which indicated that appeals that are made on the basis of decisions on Bill C-14 should be appealed to the Immigration Appeal Division of the Immigration and Refugee Board of Canada. That was the bill referred back to the House by the House standing committee.
Subsequent to that, we had extensive consultations, both with adoption stakeholders and also with the provinces and territories. As a result of those consultations, and particularly as a result of communication we had with the provinces, we explained that the problem with the Immigration Appeal Division appeal, as set out in Bill C-14 as amended by the standing committee, was that this would supersede the authority of the province.
We could end up potentially with a situation where a province had refused an adoptive parent the ability to adopt an individual — for example, because they were considered by the province to be unfit — but the Immigration Appeal Division had the authority to overcome that decision and force or grant citizenship to the individual. We would be left with an undesirable situation, where we would be forced to grant citizenship to the individual. They would come to Canada but not actually have a legal parent in Canada because the provincial or territorial government, which has the constitutional responsibility for the protection of children and for adoptions, would feel that the family was unfit.
That provision in Bill C-14 that had been adopted by the House was removed at report stage, and the bill that was sent to the Senate was the bill as tabled with the judicial review appeal provisions, plus the other two amendments I spoke about earlier — the coming into force date and the regulatory provision. This is the bill that we have now before the Senate.
The Chairman: What about that other recommendation?
Mr. Davidson: The third issue is clear guidelines and training. In the present system, I spoke about individuals applying under the Immigration and Refugee Protection Act for permanent resident status. Those applicants are processed overseas by visa officers who have delegated authority to process adoption cases outside of Canada and other immigration cases, obviously, outside of Canada. They have extensive training on the processing of adoption cases. They are knowledgeable about the legal, cultural and social circumstances in the countries in which they serve, and so they are best placed to assess the status side of the application.
Under the implementation of Bill C-14, we will continue to have those visa officers fulfill a similar role under the Citizenship Act, but when they are processing these adoption cases under the Citizenship Act they will be delegated as citizenship officers, not immigration officers. In effect, they will be doing similar work in reviewing the adoptions and ensuring they meet both the provincial requirements and the foreign legal requirements and ensuring that they are not adoptions of convenience, but rather than having their immigration hat on and issuing a permanent resident visa, they would put on their citizenship hat and be granting citizenship to these children.
The Chairman: Do I take it that is a "yes'' to saying that Citizenship and Immigration Canada develop clear procedures and guidelines?
Mr. Davidson: Yes, the short answer to that question is absolutely "yes.''
Senator Callbeck: Thank you for coming this morning. You said that this legislation has strong support of the provinces. I assume that means every province has agreed to it.
Mr. Davidson: Absolutely.
Senator Callbeck: I often hear about the length of time it takes for a Canadian couple to adopt a child from another country. Can you take us through that process with the average time frames and the fees and costs involved?
Mr. Davidson: I will ask my colleague Ms. Clarke to attempt to answer that question. I am not sure we will be table to give you all the details, particularly the costs involved, but I will ask her to walk through the whole process, of which only part involves either immigration or citizenship.
Karen Clarke, Acting Manager, Citizenship Branch, Department of Citizenship and Immigration: With the current immigration process, because Bill C-14 is not in force right now, with the adoption process, people will approach Citizenship and Immigration Canada. We generally advise them to come to us after they have completed the home study, which is conducted in liaison with the province or territory. It can take several months before the home study is completed and they get the okay from the province to take the next step. Right now, after that step, they would submit an application for sponsorship.
Senator Callbeck: To whom does that go?
Ms. Clarke: It goes go Mississauga, where there is a processing centre for Citizenship and Immigration Canada. The sponsorship application process is quick. Adoption cases are given priority processing, so the actual review to ensure that the sponsorship requirements are met is quick. I believe it only takes a few days for that check to be completed.
Other steps need to be taken overseas with the adoption agency in selecting a child and ensuring that the provinces have done their checks as well. I do not have the time frames around that.
Once a child has been selected and once the province gives its okay for the adoptive parents to travel to the other country to pick up the child, the process is actually very quick. For instance, Beijing deals with about half of our adoptions, approximately 1,000 per year. Once the checks have been completed, we are able to issue permanent resident visas within a matter of days from the time the adoptive parent arrives in China.
There are other requirements under the immigration process, such as getting the medical to ensure for public health and safety and obtaining a passport for the child. Those things take only a matter of days. For much of the stuff going on behind the scenes, such as selecting the child and obtaining consent, I do not have the time frame, but once they approach the department, it is quick.
Mr. Davidson: The other thing that needs to be taken into consideration is that it also depends very much on the country the individual is going to, because each country may have quite different requirements and many more upfront checks and that sort of thing. It is hard to give a global statement about exactly how long it takes. There is no question that the whole adoption process can be very long. It can often take a number of years, but usually the immigration side or the citizenship side is expressed in a number of days at the end of that two-year or longer-than-two-year process.
Senator Callbeck: You say it can be long, but you do not have an average ballpark figure. For example, you say that many Canadian couples get children from Beijing. Do you not have an average figure as to how long it takes?
Mr. Davidson: We tend to see the family only after they have already gone through a huge number of steps. We are not involved in how much discussion they have had with the provincial government in order to get provincial approval, nor with the Chinese government or the adoption centres overseas to have the child identified. We see only part of the whole picture, and therefore we are not able to tell you that, on average, it takes adoptive families 12 months, 14 months or 24 months. We do not have that information.
Senator Callbeck: What about the fees and costs? Do you have an average figure of what a couple could expect to pay?
Mr. Davidson: The figure that has been talked about on average in the past, and we are not in a position to validate that figure, has been about $10,000 to $20,000. That will vary dramatically from country to country and from circumstance to circumstance.
Senator Callbeck: Thank you.
Senator Keon: How many countries at the present time are eligible to adoptive parents? It seems to me I hear about China and Russia, but not many others. How many countries can one look to as an adoptive parent?
Mr. Davidson: In practice, it is quite true that we tend to see adoption cases from only a small range of countries. Around 50 per cent of the adoptions that we see at the moment come from People's Republic of China. In theory, there could be adoption cases from any country, but the provisions of both the Immigration and Refugee Protection Act and the Citizenship Act indicate that the adoption has to be legal both in Canada, in the province responsible, and in the foreign country. A number of countries around the world welcome foreign adoptions, but there are also a number of countries that for many reasons either do not welcome foreign adoptions at all or make them exceptionally difficult.
As well, because the provinces are responsible for approving adoptions for individuals who are resident here, the provinces also have a mechanism to vet the adoption process that exists in these foreign countries. From time to time, if the provinces are made aware that there may be problems in a particular country, they may well place a moratorium on adoptions from those countries. Over the last number of years there have been either formal or informal moratoriums on a number of countries either because they were seeing a heightened level of abuse in these countries or because the countries were changing their own adoption provisions. Those countries had indicated to Canadian jurisdictions that they did not welcome Canadian adoptions or foreign adoptions during that period of time as they were fine-tuning and changing their requirements.
The short answer to the question is that in theory all countries are eligible, but in practice adoptions tends to be about 50 per cent from one country and the vast majority of the rest are from the top 10 countries.
Senator Keon: What if someone wants to adopt a child from a country that has a high incidence of communicable disease? Is it impossible, or can it be done with careful screening and medical investigation?
Mr. Davidson: When we talk about adoption, it is important to think about the medical situation from two perspectives. One is the legal perspective, in other words what the relevant law indicates. In this case, I am talking about both the Immigration and Refugee Protection Act and the Citizenship Act. We also need to think of the medical situation from the perspective of the family and what information they have.
In the adoptions that are handled through the Immigration and Refugee Protection Act, individuals must pass a medical examination that looks in particular at whether the individual is a danger to public health or safety. If an immigrant coming to Canada, including an adopted child, has a communicable disease, that could be a reason for the immigrant visa being refused to them. They may be asked if they have active tuberculosis and they may be asked to go through a series of treatments in advance of coming to Canada. That is on the immigration side.
Citizenship does not have medical requirements in the same sense. This bill attempts to reduce the distinction between adoptive children overseas and natural born children overseas. The kinds of prohibitions or inadmissibility that might make sense with immigration are not applicable in the context of citizenship. If a Canadian has a natural born child outside of Canada and that child has a communicable disease, that child is as much a citizen as a child without a communicable disease. Therefore, under the Citizenship Act there is no bar for medical reasons.
I prefaced my answer with the two aspects to medical. The other aspect to the medical is that we want to ensure, in both immigration adoptions and in citizenship adoptions, that the adoptive parents have the full picture of the medical circumstances of the child and that that full picture also takes into consideration when the province makes a decision to accept the home study. For example, the province will want to ensure that they understand if there are medical problems with the adoptive child so that those medical problems are taken into consideration and the adoptive family has the appropriate resources available.
Likewise, we want to make sure and the provinces want to make sure that the family knows what they are getting into when adopting a child. The child may have a medical condition that would not necessarily be a bar to them getting citizenship in Canada, but we want to make sure that the family is aware of the condition and its implications so that the family is not surprised when child arrives here to find out that they have a serious condition.
The third element would be on issues of public health and safety where there is a responsibility on the part of the federal and provincial governments to ensure that we do surveillance. If an individual arrive with a communicable disease there is a mechanism in place to identify that and bring it to the attention of the public health authorities in whatever community or province the individual is going to, so that the appropriate action is taken.
Senator Trenholme Counsell: This bill will not be acted upon until the regulations are in place. I remember that with the Assisted Human Reproductive Act it seemed we were a long while in getting the regulations, perhaps as long as two years. In any bill you never specify the time by which the regulations have to be in place; is that correct? If not, what would be your expectation in drafting those regulations? I understand the regulations have to come back to both Houses of Parliament.
Mr. Davidson: The bill was actually amended by the House to indicate that the coming into force of the bill would be either a day to be set by the Governor-in-Council or six months after Royal Assent has been granted, whichever is earlier. In this case, we know that this bill will come into effect within six months of Royal Assent and so that gives us our marching orders in terms of ensuring that the regulations have not only been published in draft form and have been consulted about with the stakeholders, but also are ready for implementation.
Senator Trenholme Counsell: Reading that paragraph, I was not sure whether the regulations also have to be ready within the six months. That means those regulations will need to come considerably before the six months to the two Houses, which means as soon as we are back.
Mr. Davidson: They need to be drafted and we have started the drafting process for the regulations.
Senator Trenholme Counsell: Do you have to go back to all the provinces and territories to do this, or do you have the information and the necessary data in place to do it?
Mr. Davidson: Many of the regulations will look quite similar to the regulations that exist now in the Immigration and Refugee Protection Act, so we have a template. However, we will need to draft specific citizenship regulations and, yes, indeed, those regulations will be discussed with the provinces; in fact, we have already begun that process. We have been speaking to them about what the regulations might look like for the last two years.
Senator Trenholme Counsell: Will this be fast-tracked in terms of everyone's language of understanding?
Mr. Davidson: We have our marching orders, so indeed.
Senator Trenholme Counsell: I would like more explanation on the adoptions of convenience. How often do you come upon them? What is the process that happens and how does it comes to the attention of the authorities?
Mr. Davidson: In the vast majority of the cases we deal with, the context of the adoption is a Canadian family in Canada that has decided they want to go offshore to adopt a child. The Chinese movement is the best example of that. Often these are families that already have a child or want an adopted child.
They approach the provincial government and the foreign government, and the foreign government identifies for them a very young child, usually under the age of five. Those adoptions of young children are about 80 per cent of the movement, and identification of adoptions of convenience is almost unheard of in that group. I will not say it never happens but it is extremely rare. For 80 per cent of the movement, adoptions of convenience are not a problem.
However, as we start to see older children being adopted we have identified concerns with some adoptions. Without giving you too many specific details, I will explain how that might come to our attention.
We might have a situation where a family here in Canada has legally adopted a child in a foreign country. They apply for the immigration or, in the future, the citizenship for this child. We find out that the adoption actually had taken place as long as five or 10 years ago. We find out that the adoptive child has been living for that five or 10 years with their natural family, brothers and sister, mother and father. The child has been in the same house, in other words, for five or 10 years after the adoption took place. We find out that the adoptive family is an aunt or uncle of the individual. We have sometimes done interviews with both the natural parents and also the adoptive child who, in many cases, is not a child any longer. They might be into their teens. We explore with them the circumstances of what happened after that adoption. We find out that the adoptive child has never been told that he has been adopted. He has never been told that this family in Canada that he calls his aunt and uncle are actually now treated as if they are his legal parents. He has never been told that his natural parents and his natural siblings are no longer legally part of his family.
That is one of the best examples of an adoption of convenience. That adoption was not intended to create a new legal family. It was not intended that this individual would join this new family in Canada. Rather, it was planned, often many years in advance, for him to go to Canada to join an aunt or uncle or other family member.
The Chairman: Are there any other questions?
Thank you all very much for coming.
Members of the committee, we have the matter before us for consideration.
I am not thrilled by this appeal procedure and it looks as if the House of Commons, in response to the Canadian Bar Association, did try to deal with it, but when they found themselves running up against provincial jurisdiction, perhaps, if I am understanding it correctly, they then backed away from it and have left it as it is, which seems onerous and limiting.
On the whole, it strikes me as something worth proceeding with. Subject to your comments, we can decide.
Do honourable senators have any general comments or do you want to get into clause-by-clause consideration?
Senator Munson: Let us do clause-by-clause consideration.
The Chairman: Clause by clause it is.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 3 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 3.1 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 4 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried. Is it agreed that this bill be adopted without amendment?
Hon. Senators: Agreed.
The Chairman: Carried. Is it agreed, honourable senators, that I report this bill to the Senate at the earliest opportunity, which means this afternoon?
Hon. Senators: Agreed.
The Chairman: Carried.
We do not have any further business. This is our last meeting before the summer, so have a great summer.
The committee adjourned.