Proceedings of the Standing Senate Committee on
Human Rights

Issue 9 - Evidence - Thursday, September 21, Afternoon meeting


VANCOUVER, Thursday, September 21, 2006

The Standing Senate Committee on Human Rights met this day at 1:16 p.m. to examine and report upon Canada's international obligations in regards to the rights and freedoms of children.

Senator A. Raynell Andreychuk (Chairman) in the chair.

[English]

The Chairman: Honourable senators, our first witnesses this afternoon are Victor Porter of MOSAIC and Sister Deborah Isaacs from the Separated Children Intervention and Orientation Network — a long title.

Sister Deborah Isaacs, Representative, Separated Children Intervention Orientation Network: We tend to call it SCION, which means "heirs."

Madam Chair and honourable members of the Senate, the SCION Project appreciates this invitation to present to you a submission on some of the areas where we see that Canada is not fulfilling its obligations under the UN Convention on the Rights of the Child, or CRC. As a project dealing with separated children, we deal mainly with children who are refugees, or victims of trafficking, and I will make this presentation from their vantage point. I agree with the observations made in your interim report, Who's in Charge Here? about the inadequacies of Canada's method for implementing the convention, and about the need to adopt legislation to give the CRC the force of law in our country. Many prior presentations have spoken on why this is important legally, and I will not repeat those arguments, but I will supplement them with examples of where Canadian laws and policies fail to meet up with their obligations despite the claims that they are in conformity with the convention.

In keeping with my objective in this matter, I will cover five areas: poverty and discrimination; best interests of the child; reunification of separated children with their families; separating a child from a parent; and a national policy for separated children. Another major area of non-compliance for Canada that I see regarding refugee and immigrant children, namely, reunification with the family, will be covered by another panelist.

Article 2 of the convention states that State parties are to ensure that the rights set forth in the convention are to apply to every child in their jurisdiction without discrimination of any kind, including status of the parent. Article 18 provides for childcare services for children of working parents. Articles 26 and 27 speak about the entitlement to social security and the right of a child to a standard of living in accordance with national conditions. Yet we find that Canadian law excludes children of refugee claimants and non-status persons from getting the child tax credit.

These children are more than often the poorest of the poor and they include children born in Canada. In other words, Canadian citizens. To add to their poverty, they are most often ineligible to receive subsidized housing and daycare, and their parents have difficulty obtaining adequate jobs because of their status. This is discrimination based on the status of parents. In fact, we have two types of Canadian children.

Article 3 states that in all actions concerning children, the best interests of the child shall be a primary consideration. Yet the Immigration and Refugee Protection Act states that the best interests of the child must be considered in humanitarian and compassionate applications. However, that is not applicable in any other applications or actions, and even in H and C applications it is not a primary consideration. In their last report, the committee stated that the principle that the primary considerations should be given to the best interests of the child is still not adequately defined and reflected in some legislation.

Also, since humanitarian and compassionate applications — H and Cs — may take years to process, the question of the best interests of the child is often never looked at before drastic actions such as deportations are taken. The best interests of the child is also never looked at in applying the draconian IRPA 117(9)(d), and, therefore, punishing the children for the mistakes of their parents.

A separated child who is an accepted refugee in Canada cannot make application to be reunited with his family despite the fact that Article 10 states that applications by a child for his or her parent to enter or to leave a State party for the purpose of family reunification shall be dealt with by State parties in a positive, humane and expeditious manner. Canada's explanation for not permitting this type of application is that they fear the parents will send their children to gain a toehold in the country so that they can follow. However, that does not make sense. If a child has been accepted as a refugee, that means that there is a justified reason for him or her coming here. If it is just in order to get a toehold, the child would never be accepted. To condemn a child to perpetual separation from his or her family is cruel and inhumane, not respecting the rights of the child and not fulfilling our obligations under the convention. How can we say that our law here is in compliance?

Article 9 states that State parties shall ensure that a child should not be separated from his or her parents against their will, except when competent authorities, subject to judicial review, determine, in accordance with applicable law and procedures, that such separation is necessary in the best interests of the child. In Canada, separation of a child from a parent through deportation occurs quite often. Deportation proceedings can occur without anyone ever looking at the issue of best interests, as we mentioned earlier. On the other hand, the issue may be looked at, or at other times it may be looked at and refused because family separation is not considered an undue hardship. The authorities state that the person should be deported and then apply for immigration from outside the country. However, what is never really looked at is the reality of the application succeeding, or succeeding within a reasonable time, in light of Canadian immigration laws and processing times.

I have heard of a case where there was a family divorce, and custody was awarded to the mother, who is not Canadian. However, the Family Court also ordered that the child not be removed from the province, since the father is Canadian. Yet the mother is ordered deported. A Federal Court then ruled that custody does not mean that the child must live with the mother, and that the mother can apply for immigration status from outside the country. The mother, though working and supporting the child now, would never have enough points to immigrate as an independent immigrant to Canada, so the child may never see the mother again.

In Article 46 of the 2003 concluding observations on Canada, the Committee on the Rights of the Child remarked that they were especially concerned at the absence of a national policy on unaccompanied or separated asylum children. In 2001, Senator Landon Pearson, along with the Child Welfare League of Canada and the International Social Services, organized a national round table on separated children in Ottawa. One of the recommendations of this round table was to form a working group, led by CIC with NGOs, to work on a national policy for separated children. This working group was formed but has really made very little progress. We have gone through several persons representing CIC — Immigration Canada — some of whom have very little understanding of the problem, and the last one of whom retired in the spring. As a member of the NGO group, I can tell you that I am extremely frustrated. Without a law implementing the CRC, we have no way of advancing this issue except advocacy, which is going nowhere at the moment.

We NGOs would like to see another national round table organized to look at what has been — and has not been — accomplished since the last round table, and to have another look at the issue. In another couple of years we will again be before the Committee on the Rights of the Child, and referring to their 2003 comments, nothing has changed.

Victor Porter, Community Outreach Manager, MOSAIC: Madam Chair and honourable senators, good afternoon. My name is Victor Porter. I work for MOSAIC, which is an organization here in Vancouver. When I shared with friends and colleagues the fact that I would be presenting to this committee, some suggested that I read my presentations. Others said, "No, talk to them." Senators, I will make the best of both worlds: I will read some parts, and then talk to you.

Before I start, I would like to thank you for the time you are affording me here today, and also for the help of your very able staff who were able to accommodate us and my crazy schedule to enable me to make a presentation before you.

As I said, I am working for MOSAIC. MOSAIC supports new immigrants and refugees through a range of programs and services, including employment, family support, volunteer information support, interpretation and translation services. MOSAIC has 130 employees, 300 volunteers and close to 250 trained, freelance interpreters and translators. Our intimate knowledge of the issue of family reunification is based on the work of our 11 bilingual counselors who, among them, speak a total of 24 languages. They are primarily focused on the project funded by the Foundation of British Columbia. I am also a member of the Canadian Executive Committee of the Canadian Council for Refugees. That council is based in Montreal, and I suggest that if your tour takes you to Montreal, you contact and invite to appear before you Janet Dench, who is our executive director.

In relation to our submission, as members of the Canadian Council for Refugees, we support their submissions as a whole. I will start by reading from the June 1995 conclusions of the Committee on the Rights of the Child. Paragraph 562 reads:

The Committee recognizes the efforts made by Canada for many years in accepting a large number of refugees and immigrants. Nevertheless, the Committee regrets that the principles of non-discrimination, of the best interests of the child and of the respect for the views of the child have not always been given adequate weight by administrative bodies dealing with the situation by refugee or immigrant children. It is particularly worried by the resort by immigration officials to measures of deprivation of liberty of children for security or other related purposes and by the insufficient measures aimed at family reunification with a view to ensuring that it is dealt with in a positive, humane and expeditious manner. The Committee specifically regrets the delays in dealing with reunification of the family in cases where one or more members of the family have been considered eligible for refugee status in Canada as well as cases where refugee or immigrant children born in Canada may be separated from their parents facing a deportation order.

If there is one point that I want to get across to you, it is the fact that the convention speaks to governments' facilitating a timely reunification of children with their families. This is not happening. I would like to share with you the story of a person close to our agency who travelled to Congo once he realized that he had three nephews who were orphaned. He went to Congo at the risk to his own life, located the children who were in their early teens, moved them to the safest location, returned to Canada and began the process of bringing them over through the immigration process. Time went by; he dutifully complied with every requirement. The situation in the region where these children were living became increasingly dangerous. He moved them again, now to Ivory Coast where the order to which Sister Deborah belongs, the Sisters of the Good Shepherd, provided them with shelter and looked after their safety. Then a crisis broke out in the Ivory Coast Republic; a crisis where foreigners were targeted in the streets. Thus the safety of these children was still in question.

What this family experienced was a bit of a bureaucratic nightmare: Their visas were ready, but by the time the children knew that their visas were ready, their medical examinations had expired, so they had to go and have their medical examinations again. Then by the time their medical examinations were done, the visas had expired.

I see your faces, but we are no longer surprised by instances like this because it is not an isolated phenomenon. It happens regularly in family reunification situations.

Finally, by chance, the children were ready to be transported to Canada, but they needed to have pictures taken. At severe risk to their safety, they went and had pictures taken, took them to the Canadian delegation and, three weeks later, they were called back. The pictures were not the correct pictures: The background was blue, and they needed a white background.

I am raising this as an example of how the best interests of the child are not on the screen of the people who are dealing with these cases. As I said, this is not an isolated case. We see these kinds of things again and again.

Having said that, I do not want to point my finger of criticism at the immigration officers. They are in the field; they are always understaffed; they have a limited budget to work with and they already have a backlog. No matter when they arrive at their destination, they are dealing with a backlog. They, our immigration officers, have done extraordinarily good things in removing children or people who are at risk but, as I said, these are extraordinary instances. The rest of the instances are slow, cumbersome and put children at risk.

Even if the children are not at risk, they will be separated from their families in any event for years, and those years make a mark on those children, on their families and, eventually, on all of us. The rest of Canadian society will have to deal with the harm done to these children.

My time is up, but these things can be solved. It does not need a change of legislation; it simply needs a change in regulation to allow such children to be reunited with their parents or family in Canada and to be processed inland, in a similar fashion to what has been done with spouses. Through a change of regulation, spouses now can be processed in Canada to resolve their situation.

The Chairman: You are saying that the change required is in the regulations. My understanding was that the regulations gave the minister discretion, but you are telling us that it would actually take a regulation change? I might remind you that the Immigration Act changed three years ago, and it gave unusual and, in my opinion, too many powers to the minister by way of regulation; powers which traditionally had been in the act.

However, my understanding was that they could act. They would simply need to file. I did not think a regulation change, per se, was required. Your understanding is that a regulation change is required?

Mr. Porter: My understanding is that it does not require a change in the law; it requires a change in the guidelines, actually.

The Chairman: Yes.

Mr. Porter: An amendment to the guidelines, I am sorry, to provide for expedited reunification.

The Chairman: My point was that it is even simpler than a regulation change.

Mr. Porter: Yes. All it requires is the political will and the best interests of the child as the centrepiece.

The Chairman: Sister Isaacs, you talked about a number of the issues that we have dealt with. Can you tell us what types of children you work with? Could you explain a little about your organization and how you come to deal with those children?

Sister Isaacs: Separated children are children who are outside their country of origin, without parent or legal/ customary caregivers. These are children under the age of 18, according to the convention, who arrive in Canada, let us say in this case. Sometimes we are dealing with separated children in other places where they have a relative here in Canada. This applies to children who come as refugees or refugee claimants, victims of trafficking or migrants. We do not yet have that many migrants in Canada but we do have victims of trafficking, and we do have refugees, both making claims here.

We have had a moratorium on refugee children separated, coming to Canada for resettlement, but some protocols about guardianship, et cetera, have just been put into place. I do not know if anybody has yet come under these new protocols. These, then, are the children who come.

Here in British Columbia, we have the Ministry of Children and Family Development which has a special team that takes care of totally unaccompanied children. "Unaccompanied" would mean that they are not accompanied by any adult. It is a much narrower definition than "separated." A separated child can come with a distant aunt or a cousin or someone, but that person is not their legal guardian. First of all, here in Canada we have no obligation that such persons become legal guardians, which burdens them with serious problems. This in itself, I think, is contrary to the Convention on the Rights of the Child. In other words, these children have nobody who has any legal responsibility for them. They can make it happen, but it is not an easy matter because it is not always easy to get hold of the parents, if they exist, and if they have the proof. It also costs a great deal of money, and here in British Columbia there is no legal aid available to them to go about doing this. Thus, most of the time it does not get done.

The Chairman: I think your paper adequately explains that and your other work. What I really want to know is where is the point of entry of your organization into such situations?

Sister Isaacs: I work at MOSAIC but not for MOSAIC. I have access to these children through the staff of MOSAIC. I also work with or have contact with the ministry. Some of the children come directly off the street. I have also made contact with them through other organizations who might have contact with children like this, such as Covenant House, which is there on the street for street kids. We organized this network SCION — and this is where the network comes in — of organizations, both governmental and non-governmental, that meets fairly regularly to look at the problem of separated children here in British Columbia.

The Chairman: You then work with them after that and advocate for them, is that the point?

Sister Isaacs: I advocate and try to help them settle different matters that may arise. I can give you an example: We had a child who was adopted from overseas, but then the adoption broke down here and the child was on the street with absolutely no identification. He was legally in Canada, that was no problem, but he had no identification; he had neither health care coverage nor anything else. We helped him to get some sort of health coverage and we tried to get help for him through the ministry, but because of different policies now within the ministry, they were not too interested because he was over 16 at that point. At least we helped him at least to get papers so that he could do some work, such as at McDonald's or somewhere, and get health care when he needs it and other things that he is entitled to.

The Chairman: How many children are we talking about? This is one of the issues that we are faced with as we go around the country. For instance, how many such children do you deal with in a year? Some people are telling us that we are talking about small numbers and others say that there is an invisible number of such cases. I want your opinion.

Sister Isaacs: Yes, I know that kind of statement. At times we have had more such children, like when the boats were coming in here from China and elsewhere. At other times, it is less. Now it is much less because the Safe Third Country Agreement has cut back on the numbers of refugees coming in, even though the category of separated children is one of the exemptions.

The method of calculating numbers is problematic. The immigration authorities decided to calculate how many refugee claims were being initiated by a minor alone, where the main applicant was the minor. However, that does not always take into consideration the fact that some of these claims may involve a couple of minors, and that is not always clear. Sometimes, especially with separated children as compared to unaccompanied minors, their claim will be established through the family with whom they are living. If they are living with, let us say, an older brother or an uncle or something, the claim may just proceed as if the child was a child of that family, and they are not the primary claimant. Sometimes, in fact, children's claims are not being heard on their own merit, even though sometimes the child has his own claim.

The Chairman: In relation to your project, could you give us just a rough, ballpark number. Are we talking 10 or 20 a year? How many? Just a ballpark.

Sister Isaacs: For here in Canada, I have dealt with, I would say, about 10 a year, though I also deal with other cases, such as the example I gave you of the three children who were in the Ivory Coast, trying to bring them here. I am dealing now with two young girls from Ethiopia who have already been trafficked to Saudi Arabia and then returned to Ethiopia. Their older sister is here in Canada. On being returned to Ethiopia, they were living in a home with a family, and in the violence in Ethiopia in December, the man of the house was killed. The two girls then fled with the son of that family to the Sudan. I am not sure if they are going from the frying pan into the fire.

The Chairman: It is close.

Sister Isaacs: Yes, it is next door. They were now in Khartoum. Again, I have been lucky. My congregation has sisters in Khartoum, and through a telephone number we have been able to make contact with the girls and they have been taken into care, and they are at the moment trying to get them refugee status in Sudan so that they can be resettled here in Canada with their older sister.

The Chairman: One of the other concerns that we have heard is with respect to the trafficking problem and that the people who seem to fall through the cracks are those that are 16 to 18, and female. Do you have any comment as to whether that is an issue? In other words, if a young girl comes into this country and she is 17 years old, she is not looked upon as a child.

Sister Isaacs: It depends on the province.

The Chairman: It depends on the province? Is it because of the regulations or their attitude or what?

Sister Isaacs: No, it has to do with regulation. For instance, in Ontario, it has to do with the regulations of that province for children under age, where the ministry —

The Chairman: In other words, it is 16?

Sister Isaacs: It is 16 for intake. They will take care of children beyond that age, but for intake, it is 16.

Here in British Columbia, it is the opposite: We take them in up to 19, so there are differences by province. I would not say that it is limited only to girls because it also includes boys. Here in British Columbia, by policy, we have problems with some of the 16 to 19 year olds in that they are not quite open to being taken into care. Then the authorities will just let them go and sort of ignore them and that type of thing. We do have this problem with some children who are being trafficked. I am using the word "trafficked" here because children cannot give their consent —

The Chairman: That is right.

Sister Isaacs: — to sell drugs from Honduras, for example. We do have this repeat situation. They are being brought here, and they owe debts for their transportation. I know they do make some money; for them, a lot of money, but as far as I am concerned, they are being trafficked, at least the ones under 18. With respect to the ones over 18, then you can get into a debate.

The Chairman: My final question has to do with the situation that arises when they come into this country. A comment has been made that the children may go into custody — in other words, they may be deprived of their freedom, in contrast to cases involving adults, where an adult would have been released. That is because the children may then come into the orbit of the Children's Aid Society, or whatever. There are no facilities for such children where they may be held, and they probably do not receive the support services as would another child in care in Canada who has been apprehended for other reasons — in other words they are not getting access to some of the counselling, education and other services, and some of these children coming into Canada are somewhat traumatized.

Sister Isaacs: This, again, depends on the province. Because of the arrival of the boats here in British Columbia, we have developed this migrant services team in the ministry to take care of separated children — or perhaps I should say unaccompanied children. Because of the actions of the ministry in this respect, most such children here in this province do not now go into custody.

Previously, however, I was in Quebec, and I know that we have had children in custody at the Immigration Prevention Unit at Laval, where there are no facilities for children. There, they had no schooling for months while they were being held. They were Chinese and Pakistani. They were starting to get a little, you know —

The Chairman: They were difficult.

Sister Isaacs: Well, their problems were mental, too. They were traumatized, and it was a problem because Quebec at that time had a hole, a juridical hole. Any separated children became the responsibility of SCION but they had no legal guardianship or any of the protective measures that that would entail. All children are entitled to education, but there were no educational facilities within those detention facilities and there was no provision made for the months that they were there to give them any education, or even to teach them English. The only activity they had was to watch television, and, as you know, when you are dealing with youngsters, having them sit inside for most of the day is not the healthiest solution. They had no-one to talk to because they were not learning English — or French, in Quebec's case.

Therefore, with respect to the other provinces, there is nothing specific available, and the situation varies from province to province. Ontario, as I said, these children are considered children up to age 16. After that age, they are just left to make their own decisions and arrangements, and Covenant House in Toronto ended up dealing with an enormous number of such youths. At one point, nearly 50 per cent of their clientele were separated children. That was back in 2001, when they gave us their report, but it varies from year to year.

Senator Nancy Ruth: Perhaps both of you could comment on whether or not you see any gender differences in the treatment of such children. Of course you will see gender differences, but among the children that you deal with are there different issues for girl children than for boy children, and if so, what would they be?

Sister Isaacs: Yes, there would be differences. The vulnerability of a girl child is much more. She may not have been trafficked in here, but a girl child of 16 who is sort of left on her own in Ontario, or perhaps in some other countries, for the first time in her life without supervision, is much more vulnerable to being picked up by people who will then use her in prostitution than, say, a male child who can go out and find some other type of work much easier. That is what I would basically say is the difference in the vulnerability of the person. Other than that, no.

Mr. Porter: I could only add that in some communities, some cultural communities, the expectation of what a young male will do are different to the way in which a female young person will be regarded, and the stigma or stereotypes applied to those children are very different. For instance, in some cultures, the fact that a young person is out in the world at 15 or 16 is looked at as an asset, as a show of courage or heroism, sort of thing. Yet to see a young girl of 16 alone in the world does not have the same connotation. People in particular communities look at them as a lost case. Thus there are, I would say, a number of differences, and it depends on the communities: the system as a whole, the education system, the child welfare system. However, those are the attitudes that I can point to in terms of community, or the ethnic community's perception of such children.

Senator Poy: Sister Isaacs, can you please tell us how prevalent is trafficking of children into Canada? We read a lot about that. What, in your experience, is the situation, say, with regard to such children from Europe, and so forth?

The Chairman: The question is with respect to "trafficked" children; we have been talking about unaccompanied children, separately. However, you are talking total — ?

Senator Poy: Yes, yes.

Sister Isaacs: You are talking about children being trafficked?

Senator Poy: Yes.

Sister Isaacs: I think the problem is a lot greater than we realize. It is very easy to hide children, much easier than for adults, even.

Senator Poy: Why is that?

Sister Isaacs: Well, first of all, I think it is easier to bring in children. You can pass them off easier as your own, in the case of a trafficker, than you can with an adult. I myself have seen what I would call "trafficked" children. I have dealt with such traffic situations. I remember one case in Montreal, involving a 13-year-old boy, supposedly a younger brother of a woman. We were an emergency shelter at that time and, right from the beginning, right under our eyes, this child was doing all the work for the family: the cooking, the cleaning, the laundry. He would not eat with the rest of the family, even though he has supposed to be the younger brother of the woman. Of course, we also noted that this child was illiterate as compared to the rest of the other children that the woman had, and we immediately took action. This was not acceptable. We prohibited him from doing anything, at least in the house. We spoke to the outside agencies involved. We warned them, but they did not take any action at that point. As soon as the family left the shelter, I had the suspicion that that child would not go to school, but we lost contact. Then, just by accident, one year later I was at the immigration board at the same time as this family, although I was there for some other purpose. At that time I was able to speak to the child, and as we had predicted, he still was not going to school. I again contacted the authorities on his behalf, and I had to do a lot of pushing to get them to start investigating. The next thing we knew, the family had moved to another province.

Senator Poy: How would you have known this family? They were really under your nose, is what you are saying.

Sister Isaacs: By chance, but I am sure there are many others like that. I know I have heard stories of other kids coming into families, supposedly as a relative, or whatever. I am also hearing a lot of stories in certain communities of children being trafficked for sexual exploitation, but I have not come into contact with any such. I hear such things both from some of the organizations dealing with prostitution and from other, different sources, but we have not been able to put our hand on any such cases. We do know that there are the children — the Honduran children, for example, who at times have been a fairly large number. First they were telling us their proper ages, but then they found out that the ministry would try to take them into their charge, so they started lying about their ages. However, it was quite clear that they were not 19.

Senator Poy: These are groups of children that are brought in. I think you mentioned something about age, that depending on which province they go to, the age at which they are considered children is different; right?

Sister Isaacs: Right. In some provinces, it is 16; in other provinces, it is 18. I think here in B.C., it is 19. We are unique in that respect, in that we meet the convention standard.

Senator Lovelace Nicholas: I am just so overwhelmed by your testimony. Can these children eventually attain citizenship?

Sister Isaacs: That is another problem. These children cannot attain citizenship. The ministry here, if they are accepted as refugees, will make application for their landing, and so on, and keep them in charge in foster care, et cetera, but the Citizenship Act does not allow them to apply for citizenship until they are 18, even though we are sometimes talking about perhaps 13 years. In fact, this is a big problem. It does not allow the province to apply on their behalf for citizenship, which hinders these children from partaking fully, sometimes, with school activities. For example, where there might be an outing, or an exchange visit to the United States, they cannot go, et cetera. If they were brilliant, there is a difference. There are a lot of benefits to citizenship, even for a child, but the Citizenship Act does not allow it, for such children.

Senator Lovelace Nicholas: But they can apply for citizenship because they do not have guardians?

Sister Isaacs: They have the provincial government as a guardian, but that body does not look at them in the same way as a parent might. Thus there is a restriction on separated children becoming citizens until they are 18. However, at that time they are no longer children, and therefore the provincial government cannot apply on their behalf. They can then apply for landed immigrant status, but not for citizenship.

Senator Lovelace Nicholas: Please tell me of a success story. Is there a success story?

Senator Nancy Ruth: Good question.

Sister Isaacs: I can tell you a story. Mr. Porter brought the three kids he was talking about. They have been in the country now for a few years. They have graduated from high school and are going to university. But I will tell you something: It took quite a while, over a year to get them out, and a lot of continuous prodding. For example, Mr. Porter mentioned the photographs. The photographer was the one recommended by the Canadian Embassy. It took four sets of photos before we finally got the right ones, and it was only because, for the fourth set, the sisters finally took them to another photographer. First, it was blue, then it was gray, and on and on. Meanwhile, there is a civil war going on.

With some cases, it is just horrific, time-wise. There was another case where it took eight years to get the children here to Canada, and in all that time they had no schooling. If we can get the children here in time, they can make a contribution to Canada. They can get the schooling they need. They will not be lagging behind. They can know their parents because, let us face it, if they are separated from their parents for years, kids do not know their parents, especially in the case of a 2 year- old.

There was a case several years ago in Belgium, I think it was, where the Prime Minister of Belgium made an intervention to move a child from the Congo to his mother here in Canada because somebody had been trying to sneak the child in illegally.

Some situations can be very difficult. We do hear some good stories, and the system does work, but there is no provision to fight it. You hear some crazy things sometimes. There was the case of the Afghani child — no, correct that, a Canadian child of an Afghani father. The father is here, and earning a living, but he should go back to Afghanistan to apply for immigration from outside. He is married and he has been here for years, but the only way he can get his landed immigrant status is to go back to Afghanistan and apply, but he may never come back here. What about the child? Must he leave the child? It is suggested that the mother can take the child to Afghanistan to visit the father, despite the fact that Canada has a travel warning about Afghanistan. The whole thing seems to be divorced from reality.

Mr. Porter: We see success stories constantly. One of the beauties arising out of the work that we do is that every month or so, we have a mother or a father coming to us to introduce us to their children and saying, "We finally landed them. Here they are. You know, this is the person who helped us." Those are success stories. The concern is that there is such a waste of time and resources. Parents send money to where their children are. The children come here and they do not know that their parents have tried very hard to get them here. Some have this feeling of resentment against their parents. "Why did you not bring me earlier? Why did I have to wait five years, three years, four years?" Those are some of the issues that we see again and again through our family programs, where there is counselling and parenting groups, and so on, and it is not an isolated event. It is recurring. There is a pattern of this kind of connection between the children who arrive later, and their parents.

We have been talking here about children, but the same situation arises between spouses as well. The mother or the father is here; they become functional in Canadian society, then the spouse arrives. He or she arrives from an experience of separation. These are two different people. They have three, four, five years of different experiences. It takes a big effort for all of them to catch up, and it is energy that is devoted to family issues that could be devoted to studying or working or opening up a business. Therefore by not streamlining the family reunification system or the laws, it affects not only the particular family, it is affects you and all of us as a society. We lose the contribution that these children and parents can make.

Sister Isaacs: There are also whole other areas of what we call the "moratorium countries." Those are countries that Canada has deemed are unsafe to return anybody to. But if a person from such a country is not accepted here by the authorities, then he or she cannot ever bring their family over. Some of these countries have been out of that loop for years. Of course, such applicants cannot bring their children over. Sometimes crazy things happen: They might put in a request for humanitarian or compassionate consideration, and you get an answer like, "Well, because you do not have part of your family here, you have not really integrated. Therefore, we will not accept you on humanitarian and compassionate grounds." In some ways the word "humanitarian" has lost its meaning. I mean, sure, he is following the law. He is not bringing his family here because he is not allowed, but then that is held against him when he tries to improve his status. At the same time, he may be working and contributing through his Canadian taxes and everything.

The same thing could be said about the Child Tax Credit. You have people who, through their taxes, are contributing to the Canadian economy and yet they are not eligible for the Child Tax Credit. Some of the children are actually Canadian children, Canadian citizens. However, eligibility for that program is not based on the child, it is based on the status of the parent.

The Chairman: You raised the issue of stateless children basically. Might I ask, do you deal with any of those?

Sister Isaacs: I have had one case, but so far it has gone nowhere. It is not taking place here, actually, in Canada. The mother is here. The child has been left in the country of origin, but is not a citizen of that country, and do not ask me how we are ever going to get it out of there. The child is caught up in what I call the draconian 117(9)(d), which is the excluded family members, for some cases where parents, for some reason or another, did not list a person, a family member, on their initial application. Sometimes it is because applications went in when that person did not exist, as in the case of a child. Perhaps because of the long processing time, they were born in the meantime, and then people tell the parents, "If you notify them now, the process will take much longer." Or they do notify somebody, but it is the wrong person. They think they are notifying the Canadian government, but it might be —

Mr. Porter: UNHCR.

Sister Isaacs: — UNHCR or something like that, of the existence of this other child, and then they come here to this country. However, because the child is not listed, they can never bring it to this country. What I mean is that the child is suffering for the mistakes of the parent. This child is deprived of a parent because the law is so absolute, and so far, we have not figured out, in most cases, how to get around these lies. There are no time limits. If they misrepresent anything — and another thing is that there is a two-year time limit, but not for this.

The Chairman: What you are telling us is that you want another national round table. However, it seems to me that we know what the issues are. It is not time for another round table; it is time for action, is it not?

Sister Isaacs: Because the immigration structure tends to change so often, many of the people who are there now are not aware of what the issues are. For example, I have had the immigration person in charge of the working group say to me, "What difference does it make whether he has a legal guardian or not, as long as he has a roof over his head."

The Chairman: My point is if you leave it at the bureaucratic level, you may train new ones who will then also retire. Are you really not talking about putting children first?

Sister Isaacs: First, definitely.

The Chairman: Then that has to have some political will behind it.

Sister Isaacs: Right. What would be even better would be to have a law implementing these proposals, because that would put much more of a priority on the Department of Immigration to develop this sort of policy.

The Chairman: Or a direction from the government to say that it shall be handled this, that and the other way. You are talking about the national round table, but I produced a report before that — and hundreds of others have, too. This is not a new issue. It is just a revolving round table. That is why I am trying to —

Mr. Porter: Absolutely.

The Chairman: You are just desperate, looking for some —

Sister Isaacs: — we are looking for some way to push it again, because as far as I am concerned it has not advanced at all.

The Chairman: Very well.

Senator Poy: Mr. Porter, you were telling us about the children that you finally were able to bring in from the Congo. Did they come in as refugees or as family members of the —

Mr. Porter: The came in as family members of a landed immigrant, yes.

Sister Isaacs: As adopted children.

Senator Poy: As adopted children, I think, by their uncle, is that right?

Mr. Porter: Yes.

Senator Poy: We had other witnesses this morning who gave us some information in this regard, and this is what I want to find out: I do not want to know how old those children were, but it seems that if the adoption was a foreign adoption, those children are not Canadians. That was what we were told this morning.

Mr. Porter: They are not Canadians —

Senator Poy: Until they reach 18?

Mr. Porter: — until they become Canadian citizens. In their case, the adopted father or mother can apply for their citizenship once they have resided here for three years.

Senator Poy: Then these children do not have to wait until they reach the age of 18 to become Canadians?

Mr. Porter: No.

The Chairman: There is a parent.

Senator Poy: There is a parent, yes.

Mr. Porter: There is a parent.

Sister Isaacs: An adopted parent, but a parent.

The Chairman: But the problem arises if those children are given up into an agency and the government — the provincial government — cannot apply. That was the point, I think.

Sister Isaacs: Or if they are in the care of a legal guardian. For example, Muslims do not like to adopt. They do not believe in adoption. Therefore, they will take legal guardianship but they will not adopt.

Senator Poy: If you are a legal guardian, can you apply for citizenship for such a child?

Sister Isaacs: No.

Senator Poy: You cannot. You mentioned earlier that there was an adoption that did not work out, so the child —

Sister Isaacs: That was another case.

Senator Poy: That was another case, and the child was, as you implied, stateless.

Sister Isaacs: No, he was not stateless. He was a landed immigrant.

Senator Poy: Yes.

Sister Isaacs: But he just had no papers with him.

Senator Poy: How would that child manage without papers? How would he get a job?

Sister Isaacs: You cannot, unless it is under the table. This is why it was very important to get him his papers, and get him his entitlement to medical coverage. What I mean is that he already had the entitlement; the problem was getting the proof of it and interceding on his behalf to try to get him —

Senator Poy: I do not quite understand. Are you saying that when someone adopts a child, they can just say "Go, it is not working out. We do not like you anymore."? Is that how it works?

Sister Isaacs: Sometimes. Or sometimes when it is not working out, what happens is that after several years, the child just takes off.

Senator Poy: The child just takes off. Very well, thank you.

The Chairman: You can give up a child voluntarily. Not in all cases, but they will try family reunification, if I may call it that. Whether it is your adopted child or your natural child — permit me, I am using my Family Court experience here — and you work on a family. However, if there is a total breakdown then you take the child into care permanently under provincial authority until they reach adulthood, or you can take them in temporarily to continue to work on the situation.

Equally, a child can just leave home and hit the streets, and there is a total severance between him or her and their family. There is nothing done legally. You can also give up a child; you may say, "I cannot work with that child. I have not bonded with that child. I am giving that child up." The authorities are obliged to continue to try to reunite you and to counsel you, but if it does not work, the child will then end up in the hands of welfare.

This issue is not as well known about in Canada as is the plight of those who want to adopt internationally. The difficulties of international adoption have been publicized quite a bit. However — and this is my own opinion, not on behalf this committee — I do not think there has been a proper tracking of such adopted children; that we do not track what happens to adopted children after they arrive here. That is, I think, where you are going here with this submission?

Sister Isaacs: In the same way as you were saying about tracking, and so on, the problem sometimes with separated children, as compared with unaccompanied children, is that if they are coming in with somebody who claims to be an uncle, or that they are joining some family member, there is not always an investigation of the house to see whether that is really the case. In other words, the authorities do not check out the home situation, not in the same way that they would do for, let us say, a foster care home. Is it a safe home? Is it a suitable home? Is it really parental or consanguineous? It is not always done. I would say that, more often than not, it is not done.

I remember going into The Bay to buy a bathing suit and we got talking with the clerk a bit, and she said, "You know, this man comes in here to buy this skimpy clothing for his nieces, and he seems to have a large number of nieces."

The Chairman: I think the one issue on which we have received e-mails is if a child is given up here, that causes difficulties.

Senator Poy: They are deported.

The Chairman: They are deported when they are given up, but what was Canada's obligation in allowing the adoption in the first place, in handling that child and then deporting them? I mean, is this pro- or anti- the Convention on the Rights of the Child? There was recently a case here in British Columbia of that nature.

Sister Isaacs: I have also had a problem with a child from a Muslim country — and this is an immigration case rather than a refugee case. The parents were immigrating but the child was not actually their child. However, because there is no adoption, the child would have been, at birth, registered as their child. The mother was in danger of becoming the victim of honour killing, and this couple took the child when it was newborn, one-hour old, to save the mother and registered it as if, you know, the mother had given birth. Our laws just could not cope with that situation. They were giving immigration visas to the parents but they did not want to give a visa to the child, because it is not of their blood. The child is not adopted; as I said there is no adoption in Muslim countries. Nevertheless, the authorities here wanted papers that were impossible to get.

The Chairman: I think part of the problem is that we have started to identify these problems within our immigration system. For example, with the countries where children are treated as your own, even if they are not your blood children — they could be your nieces, nephews, or what have you — I think that is where the aboriginal community has been instructive for us on having the extended, broader definition of "family."

What I am hearing from you and others is that we have not caught up with the concept of looking at the situation from the child's perspective, and all the consequences of a child being here, or not being here. Adopted, immigrating, coming in under the rubric "refugee." We have not worked it out fully yet.

Sister Isaacs: The authorities will say certain things, but they have not really put all of these things together. Also, this whole question of DNA testing for immigration. It has been said that if the children of existing Canadian families had to undergo DNA, there would be some very surprising results.

The Chairman: It is true.

Sister Isaacs: There have been cases where men have thought their whole life that these were their children, and then they find out now that that is not so.

Senator Nancy Ruth: Women have been very clever in order to save their own necks.

Sister Isaacs: Then we insist on this DNA testing, and it causes havoc in the family on all levels.

The Chairman: I think this is a reaction to the behaviour of adults, but we have not looked at the consequences to the children.

Sister Isaacs: No. The reality on the life of the child, that does not get consideration. As I said, with Section 117, they will say, "You misrepresented. You did not put down the child's name, therefore you must be punished." In cases such as that, though, are you really only punishing the parent? You are also punishing the child. That has never come out.

The Chairman: That is always the age-old dilemma in protection cases. The consequences to the parent usually are visited on the children.

Sister Isaacs: Even in cases of humanitarian applications, it is up to the parent to spell out everything in detail. Why is that in the best interests of the child? Some parents can do this; some parents do not understand how to do it, especially if they are not employing a lawyer or could not afford a lawyer. Then, if they do not do it properly, it is sort of not considered.

Senator Nancy Ruth: I would like to ask about the international connections that you must have. I was impressed by your comments about your congregation here, there and everywhere. What other networks do you use to find kids, to track them, to help them?

Sister Isaacs: First of all, with respect to my own congregation, we are international. We are represented in 72 countries in the world, including some very difficult countries. We are also members under ECOSOC of the United Nations, so we can use some of the United Nations links. I also use links with other refugee organizations, such as the Red Cross and other religious communities. I will use anything and anyone I can think of.

Senator Nancy Ruth: The Red Crescent too?

Sister Isaacs: Yes, when it is applicable. They have many of the same services and it is really part of the same international organization. They just do not use the same word and they do have the tracing services for family reunification, et cetera. I must tell you, however, that it is not always successful. Perhaps UNHCR is trying to find somebody in some of the camps. Sometimes it is a challenge.

Mr. Porter: Last June, the Canadian Council for Refugees convened an international conference for refugee rights that brought together NGOs from different parts of the world, and we are now in the process of establishing an international network of refugee organizations, and already there is a high traffic of e-mails and questions and help being given, and so on.

The Chairman: I think we have come to the end of our session. We want to thank you for adding to our understanding of a very complex but, I must say, very bureaucratic system internationally, some of which is within our national and provincial confines. Some of it is an international dilemma. It is very difficult to explain and it is very difficult, I am sure, to work within. We appreciate that you focused the "children first" aspect in this submission, rather than on all of the other issues, and it will find its way into our report.

Thank you for coming this afternoon.

The Chairman: Our next witness is Fiona Kelly, a PhD candidate at the University of British Columbia.

Ms. Fiona Kelly, Ph.D. Candidate, University of British Columbia: Thank you for the opportunity to appear before you today. What I want to talk to you about today are Canada's obligations under the Convention on the Rights of the Child to children who are born to lesbian mothers. Over the past four years, my research has been in this area and, in particular, looking at the topic of the legal recognition of lesbian motherhood in Canada, focusing specifically on children who are conceived by a donor insemination and born into lesbian relationships. I am not talking about children who are adopted, or children who are born into heterosexual relationships that then ended.

I conducted 48 interviews with lesbian mothers in British Columbia and in Alberta whose children were born via donor insemination in these circumstances, and I should say that these couples are the tip of the iceberg. Researchers these days are talking about a lesbian baby boom. In Canada, we are talking about thousands and thousands of children. The estimates in the US are in the millions. My concern, and the reason I am speaking to you about this issue today, is that in my view Canada is currently failing these children. They remain legally vulnerable at the same time that identically situated children who are born through donor insemination to heterosexual couples are legally protected. In other words, Canadian law currently denies them an equal start to life. This is important for you as a committee because Canada's obligations under the convention are to all children, not just to children who are born to heterosexual parents.

The CRC does not distinguish between family form and, in fact, Article 2 explicitly states that children cannot be discriminated against on the basis of the status or activities of their parents or family members. I want to cover two points in this submission. First, to explain how the current law fails children who are born to lesbian mothers and then, second, what effect this has on the daily lives of the children.

When a child is conceived via donor insemination and born to a heterosexual couple in Canada, whether they are a married couple or not, the name of the mother's male partner is simply placed on the child's birth certificate and for all legal purposes that man is the child's father and parent. In contrast, a child that is born via donor insemination to a lesbian couple is treated very differently, and that treatment varies from province to province. In some provinces, a child born to a lesbian couple will be fortunate enough to have both of their mothers appear on their birth certificate from birth, providing that the donor is anonymous. In other provinces, however, there is an absolute prohibition on that action. In those provinces, the non-biological mother has no legal relationship to their child when it is born. Even in those provinces where two mothers can appear on the child's birth certificate, that is new, and it does not apply retroactively, so there are still thousands of children who are not covered by this new law.

The usual alternative to birth certificate recognition that has existed a lot longer in Canada has been second parent adoption, and that is where a non-biological mother can seek to adopt the child. This usually involves a waiting period of at least six months in most provinces. It requires the consent of the biological mother and usually application fees of several thousand dollars in order to become a legal parent. Even in provinces were both or either of these options are permitted, non-biological mothers remain legally vulnerable because of issues around consent, cost, and the intervention by known sperm donors.

There will be different opinions particularly about how to go about rectifying the situation, but my point in discussing this law is that the children born to lesbian mothers through donor insemination are treated differently than children born to heterosexual couples by donor insemination.

What are the effects of this situation on the children involved? The first point I would like to make —

The Chairman: Can I get some clarification here? You are saying that with the heterosexual couples, it is the mother's partner who is registered, and not the donor?

Ms. Kelly: Yes.

The Chairman: Thank you.

Ms. Kelly: The first point to make is that there is extensive research dating back now almost 30 to 40 years that shows that children who are raised by lesbian mothers do not make any distinction themselves between their biological and their non-biological mother. They regard both women as mothers; they bond with both of them and they are harmed by loss of contact with either of them. As with the Convention on the Rights of the Child, children do not define their parental relationships solely on the basis of biology, and I think that if our laws are to be truly child centered, they need to acknowledge that reality.

My second point is that the current state of the law makes children both feel — and realistically are — quite legally vulnerable. In my own research, I have heard countless stories from children about the fears that they express when they get to the point in their lives where they realize that their families are legally precarious. Many of them become fearful about what might happen to them if their biological mother dies or if their parents separate. Others express frustration with the attitudes of teachers, of doctors, or of members of the media who do not consider their non- biological mother to be a real mother.

In fact, in the case of one family I interviewed in Vancouver, an 8 year-old girl sat in a room in a Vancouver hospital for over an hour with a broken arm because the doctor on duty refused to accept the consent of her non-biological mother to treatment.

Put simply, and in conclusion, the children of lesbian mothers enter this world as second-class citizens when compared with children of heterosexual couples. Canadian law leaves them emotionally and financially vulnerable, in spite of the fact that non-biological mothers want to be legally obligated to care for their children, and in reality are providing daily support and care.

What I think is most harmful, though, about the current law is that it denies the child's sense of who is his or her own family. By refusing to grant legal recognition to one of the child's parents, the law tells that child that this person who imagined them, who dreamed of their existence, who raised them from birth is in fact a legal stranger, and if Canada is serious about its obligations under the Convention on the Rights of the Child, I think it needs to work towards ensuring that the child's sense of his or her own family is not only protected but permitted to flourish.

Senator Nancy Ruth: I have two questions: Does the law treat these children any differently if the lesbian couple is married? That is my first question. The other question relates to something that arose just this morning. We had a presentation from Parent Finders of Canada, and this gentleman was big time into the need for all sperm donors to be registered as the fathers. How would you deal with his argument?

Ms. Kelly: To deal with the first one, whether the existence of a marriage makes any difference, no it does not. We have a rather unusual situation in which a child can be born into a legal marriage in this country and one of the parents will not be that child's legal parent. That is currently the state of the law in Canada. If you are lucky enough to live in a province where there is birth registration, you can do that, and there are a number of provinces where that is the case. Otherwise, you still must go through a second parent adoption. Then there are some provinces which have neither of those options.

The second one, the Parent Finders and the registration of sperm donors as fathers — I guess I have two responses to that. This is obviously not an issue that is particular to lesbian parents. Obviously, the vast majority of people who use donor insemination are, in fact, heterosexual couples. I do not see any problem with the registration of donors for medical purposes, for example, or if we are moving to a system, as a number of provinces in Canada already have, of only allowing what are often called identity release donors. Thus men who are willing to be identified can allow that to happen when the child turns 18. That is one alternative, and I think that that would apply across the board.

The second, I guess, interesting situation is that lesbian couples are the few couples conceiving in the donor insemination context who actually use known donors. Many of these men have ongoing relationships with the child through the child's life. They are often close friends of the couple. There is far less secrecy. It is obviously very hard to hide that you have a child by donor insemination if you have two women as mothers, and because of that situation, it tends to be a healthier environment.

If you look at outcomes for kids who are raised by lesbian parents who have gone through anonymous donor insemination versus heterosexual couples who have gone through the same process, children of lesbian parents tend to have less issues around identity, if any at all, because it has been so open from the start. If anything, I would say that the lesbian community perhaps actually provides an interesting, maybe better model of being honest around issues of donor insemination and donor involvement at post-birth.

Senator Poy: Ms Kelly, you mentioned that both mothers, the biological mother and the partner, whether they are married or not, should be registered both as mothers. As far as the donor is concerned, if that person is registered then that child will end up with three parents.

Ms. Kelly: Yes.

Senator Poy: Perhaps you would not really see that as a problem, having three parents?

Ms. Kelly: It would obviously be a radical change. I think that what we would need to look at is what legal rights and responsibilities would flow from registration. If we are registering a donor for the purposes of medical information and for the purposes of that child having an option to later contact the donor and have some involvement with him when they are older, then I have no problem with the registration. I do not know if that even needs to be on the birth certificate. We already have a system of identity release donors, for example, in Ontario where that is currently happening.

In terms of the day-to-day decision-making about medical decisions, education, religion, et cetera, again family law already deals with allocating parental responsibility and guardianship rights to one or two parents, so I do not see that actually as particularly confronting for the current system.

Senator Poy: What you are saying, then, is that even if the donor is registered, the lesbian couple should be the two mothers on a day-to-day basis?

Ms. Kelly: On a day-to-day basis, yes. I would treat that as not dissimilar to a custody and access arrangement, perhaps, in terms of trying to make it make sense within the current system.

There are certainly some families that I have interviewed where the donor, or in some cases the donor and partner, are actively involved in the child's life and, in fact, that child does have three or four parents, and I do not see a particular problem with that. I think that having important adults in a child's life will only benefit that child in the long term.

Senator Poy: What you were saying is that, at the moment, the biological mother is registered but the partner is not; that person is not regarded as a parent legally in Canada?

Ms. Kelly: In most provinces, yes.

Senator Poy: In most provinces. I will just give you an example. We have friends, a gay couple, who are using a surrogate mother. They both donated sperm. They do not know whose is the child; actually, it turns out that there will be twins. The twins will be born soon, in November. What happens in a case like this I just had never thought about it. Would the biological mother be the mother, and what then happens to these two men?

Ms. Kelly: Surrogacy is actually a completely separate area of law.

Senator Poy: It is different, very well.

Ms. Kelly: I actually do not think that that particular question is yet settled in Canadian law, when the case involves two men. We do have a case which gives parental status to a single gay man who has had a child with a surrogate that registers him actually as the sole parent on that child's birth certificate. There would be no reason why the surrogate could not be registered in that particular instance, but he went to court and had himself registered as the sole parent.

In the case you have described, it would depend on which province they were living in, but there is no reason why, if that particular province allows it, those two fathers could not be registered as the child's parents on the birth certificate.

Senator Poy: But what you just said was that if you are not a biological parent, you would not be registered. I am talking actually about Ontario.

Ms. Kelly: Very well.

Senator Poy: You know, it never occurred to me, until I listened to what you had to say. I intend to ask them about that, but at the moment, I guess until the twins are born, they do not actually know who is the biological father.

Ms. Kelly: Right.

Senator Poy: It will be a big surprise.

Ms. Kelly: Just in the past month, Ontario has had a decision that does deal directly with lesbian couples who have used anonymous donors, but that allows, at birth, two women to appear on the child's birth certificate. I would look forward to hearing what happens in your friends' situation.

Senator Poy: Me, too.

Senator Lovelace Nicholas: My question is on adoption. If two lesbian women adopt a child or, vice versa, two gay men, must they tell the child who the biological parent is?

Ms. Kelly: If they go through a second parent adoption? Is one of them the biological parent and the other one is not?

Senator Lovelace Nicholas: No. If these two people adopt a child, say, out of care?

The Chairman: A child not of either one?

Ms. Kelly: Neither are —

Senator Nancy Ruth: Neither are biological parents.

Senator Lovelace Nicholas: They are just adopting this child. Must they tell this child?

Ms. Kelly: They will be under the same law that applies to anyone who adopts. In Canada, we are rapidly moving towards an open adoption system, so chances are that there will be some adoptions of that nature. It depends on who are their actual biological parents and their ability to participate, but there is no reason why it would not — or could not — have some open adoption component to it. It would be no different.

Senator Lovelace Nicholas: Are there a great many adoptions of this nature in these situations?

Ms. Kelly: Yes. If I were to create a hierarchy of numbers I would say that the vast majority of children are now being born into lesbian relationships. Adoption would be the next category, both domestic and international, and then the third would be children who were born into heterosexual relationships that then broke down.

The Chairman: Perhaps I could just play devil's advocate for a little while here. We have spent many decades talking about how to bring adoptive children closer to what we might call natural-born children have in rights, expectations, et cetera. We have now come up with all of these new ways of creating relationships, whether it is artificial insemination, fertility options and all of those other medical things that I do not know anything about that seem to be occurring, including recent reports that said that perhaps sperm will not be necessary, as you know. With all this experimentation, it seems that the debate has been about which parent gets on to the registration as opposed to what is in the best interests of the child.

I recall Senator Nancy Ruth's previous comments about competing interests. She was talking about competing rights, but I am talking about competing interests. On the one hand is the child's need to have good parenting, support systems, stability, security, safety and all of that. On the other hand is the child's right to know; the child's rights to privacy; the child's right to avail themselves of, say, medical care. That is how we opened up adoptions because we said, why wait until they are 18? The child may be in a critical position at seven, and has a right to know who is the biological parent who is, perhaps, is no longer parenting, and what kinds of family history were brought in.

Ms. Kelly: Yes.

The Chairman: I remind you that I am playing devil's advocate here. All of the discussion seems to be what is in the best interests of the adults and who gets on to the registration form, and it would seem to me that I would want a system where we could identify all of the adult capacities that a child needs. If we have a registration form that says, "Here is your medical. Let us find out who did what to get you here medically." Then, "Who is looking after you? Who will have to pay for you?" What I mean is, we have already done that in respect of affiliation. This is, of course, before DNA testing was available. What we said was that if you can prove there is a chance, we may prejudice the rights of two or three partners of a particular woman, but the child will never get more than the child needs, although he may get it from more than one source. The whole discussion was driven by the child's rights.

Where will we end up in this whole debate? Are we still stuck on forms of birth registration that may be are out of date and do not really address what the child needs, as opposed to what the parents want?

Ms. Kelly: I think I will deal with your concluding question first. I think we may be have moved to a stage where it is important to create, perhaps, separate documents that deal with biological information versus the day-to-day care, rights and responsibilities in relation to children. Again, I do not think that this is unique to the lesbian or gay context.

The Chairman: No. That is my point.

Ms. Kelly: A number of the women I have interviewed have, in fact, suggested this model, particularly women who have used anonymous donors, that it is really important that that medical information be available. There is strong support for identity release donors and frustration, for example, in British Columbia that there are not sufficient identity release donors available, which has led to an increasing number of women going to the United States to go through insemination in that country. I think that that is an issue that Canada needs to address.

In terms of the child's focus, the questions, I think, have led us down the track of who appears on the birth certificate. I think my original point in my presentation is that the child sees these two women and, in some cases, two women and the child's donor/father as their parents. The child's sense of who their family is is not currently reflected in the law, and there are a number of cases — one in particular in the U.S. from the early 1990s, where an incredibly articulate eight year old, who is now 21 and just recently was featured in a New York Times article, appeared and gave evidence in her own case where the donor, who had not been involved in her life, was seeking to claim paternity rights. The evidence that she gave was extraordinary in terms of saying who her family was. She had a half-sibling: One of her mothers had given birth to her, and one had given birth to her sibling, and she said to the court that what the donor was suggesting was that her non-biological mother, her half-sibling and the donor was one family, and that she, her biological mother and the other donor was a separate family, and that was not how she saw we her own family.

Therefore, in terms of the rights of the child, I think we need to listen to the children in these families who do not express "family" in the way that we might commonly presume. In other words, that they identify these two women as their parents. They often do identify a donor as a father or as another significant adult in their life who they would not want to see the law separate them from the two mothers. The way to protect that child's sense of their own family is through things such as birth registration where those parents, because they are put on the birth certificate, are therefore able to assert their sense of family, the child's sense of family, in a time of crisis and conflict, and to protect them.

The Chairman: I think your eight-year-old example is exactly where I was going because we are into an international world where there are definitions of families of all sorts, and if we are to take the convention seriously, it says that the voice of the child, and allowing that child to have a family, but we really do not need to define that family.

What troubles me is one of your other statements at the start, namely, that the child would have the right to know at 18. That is an awfully adult view of the world. When they are like us, they will acquire the knowledge. I think that the convention says listen to the child. They may need that knowledge at eight or seven or five. I guess what I am challenging you to say is that the child's right to know and to develop and to identify his or her own resources should then lead us to determine what forms of support the children need, as opposed to saying, "Well, we will put it on the registration and that will give the child some security." It does not; we know that. You can put all the names on there, and then they divorce the next day.

I looked at a number of adoptions where we tried to diminish the risk when we adopted a child out. Let me tell you that some of the ones that looked like they were ironclad fell apart two weeks later, and some that were a longshot lasted forever.

Should we not just sort of not get into these registrations and biological intricacies but, rather, have some sort of process now that supports and reinforces whatever capacities the child needs, if we are moving into this new-age, scientific world and new relationship world?

Ms. Kelly: Right, yes.

The Chairman: Therefore are we not dooming the old birth registration and the secrecy of information until the age of 18, if we do that?

Ms. Kelly: The reason I said "age 18" is simply because that is the age that is currently given with respect to identity release donors in Canada.

I think I have two responses. First, to reiterate, what we are seeing in the lesbian community that is so different from what we are seeing in the heterosexual community is the active involvement of known donors. If you want a model of participation, of the child being given every option to see the various people who have contributed to their life and made decisions, then a large number of lesbian families are in fact doing that. On the other hand, the secrecy that often still surrounds donor insemination in the heterosexual community and, in particular, around male infertility, quite frankly, is something that we hide. If we could shift, perhaps, in that community as well so that this is something that is spoken about more openly and there is less fear around donors being part of a child's life, then I agree with you. I think that that is an important direction in which to be heading.

The other thing I would want to raise is that it is very easy to look back at the secrecy that has surrounded treatments such as donor insemination, IVF and adoption from the past practices that we have not actually practiced for quite a long time, and to presume that all of these children have identity issues, because what we are seeing — the children who are going through now, who are beginning to be interviewed and researched who are maybe between about 10 and 15 — they are simply not expressing the same identity issues. There is far less secrecy about that sort of situation. People are more open about it. There are more children being born in these circumstances, so I think we need to be a little bit careful about presuming that all these children will have some kind of problem when they are older and are aware of the contexts of their birth.

The Chairman: It is not a question of a problem. The right to know is the issue, so it is not a problem. It is simply, I think, the right of an individual to know, that that would be right.

Honourable senators, Mr. Chris Buchner has joined us. We moved the panel up, Mr. Buchner, because we had a bit of a miscue in our program. Ms. Kelly was kind enough to come early and start early. You have not heard her presentation but I am sure you are aware of part of it.

We would like to turn now to you, if you would make your presentation and then we can carry on with questions for you both.

Chris Buchner, Youth Worker, GAB Youth Services, Community Centre Serving Lesbian, Gay, Transgendered and Bisexual People and their Allies: My name is Chris Buchner and I am a youth worker with GAB Youth Services. That is a service that is held at the LGTB Centre in Vancouver.

Senator Nancy Ruth: What does "GAB" stand for?

Mr. Buchner: It is actually not an acronym. It is just gabbing, like talking. People think it is an acronym, but it is not. In my work, I try to support youths who are under the age of 25, who are queer, questioning or straight-allied youth, and we support them in a number of ways. We provide peer support and one-on-one support with the youth workers. We also provide referrals to other services that are available to them. We also provide a space where they can feel safe and open about who they are in their sexuality and gender orientations. We hold drop-ins where the youth decide on what activities they want to pursue, and they participate in those activities. Then the other side of GAB is that we do workshops in schools from the age of kindergarten all the way to university level, on anti-homophobia, queer issues, bullying, and how to be a supportive ally.

What I wanted to talk about today was in terms of the rights of the child. We are seeing a lot in the work that I do, high rates of dropouts in schools with queer youth; high rates of not wanting to attend school. Youths having to leave home at 15 or 16 because their parents are not supportive of their sexuality, and then when youth are faced with leaving school or faced with trying to transfer schools, there are a great many challenges in finding them the right services and obtaining such services fast enough in order for them to get set up on their own.

In reading the Convention on the Rights of the Child, it talks about the state's rights. Our state is to try to reduce the number of absences and to lower the dropout rates, and we have noticed that there is a high number throughout Canada, and especially on the Lower Mainland, of youth dropping out of school because of bullying, because of things that might happen if they have come out or they have been outed themselves.

When youth are leaving home or are forced to leave home under age 18, it is really difficult for them to find services in a fast enough time frame, and the right services to help them survive on their own, to give them a roof over their heads and the support that they need.

I am open to questions if you have any about the work that I do or the youth that I work with.

The Chairman: You are an NGO funded by whom?

Mr. Buchner: We are funded by the Ministry of Children and Family Development, and the City of Vancouver.

The Chairman: The province of British Columbia, and the City of Vancouver?

Mr. Buchner: Yes.

The Chairman: Approximately how many youths do you serve per year or per month?

Mr. Buchner: In terms of the workshops that we give, we probably deliver to close to 2,000 or 3,000 youth throughout the Lower Mainland. In terms of the access to our services, it is probably, in a year, upwards of 150 or 200 youths in different capacities. Some will attend regular drop-ins; some will just come for information. Some parents will call and want information on what services they can access, and the youths range in ages from 13 all the way, again, to 25.

The Chairman: What is the percentage of youth that you have, male to female?

Mr. Buchner: I would say it is pretty even. Then we have transgendered youth as well, and actually there are a high number of transgendered youth who are assigned to transition as early as ages 10 or 11. In one year, we probably work with about 15 or 20 transgendered youth, and they are pretty evenly split: half and half, male and female. Again, we do not really ask what their sexualities are; we just let them come and they can be whoever they are. We do not know if they are gay, lesbian, bisexual or straight allies all the time. In other words, we deal with a variety of different youth.

We also deal with different levels of risk. We work with a large number of street-involved youth who are in high school and provide some activities for them to do outside of school, they being under the age of 19. We also work with youth who are in university. Thus there are varying levels of differences in terms of the youth who access our services.

The Chairman: When you say "Lower Mainland," would these be resident young people of that area, or do some of them represent something that we sometimes hear about, those who gravitate to the larger urban centres when they have problems of not fitting in, et cetera? Are your youth those who have been resident for some time in the Lower Mainland or are they transient youth that have come here from somewhere else?

Mr. Buchner: I would say most are resident youth of different cities within the Lower Mainland, but there are definitely some transient youth. This summer, we ran a queer youth camp and we had youths come from all over B.C., from Vancouver Island, from Salmon Arm and from different places in B.C., to attend this leadership camp. However, we definitely have youths who come from other parts of Canada who are transient. A lot of street youths come from all over Canada and access our services.

The Chairman: Senator Nancy Ruth, I am going to steal your usual question about language. We heard yesterday in Edmonton that the youth have returned to the term "queer" where before there had been a phase of "We should not use that term. That it is not an appropriate term. It does not identify us." Now there is a movement back to that term, in particular among the youth. Can you comment on that?

Mr. Buchner: Definitely. I guess it is a form of reclaiming language and just using a word that related — like the pink triangle symbol, for example, which was a symbol of the holocaust. Again, that term is now used in a positive way as referring to a place or people who are friendly and positive, and being a safe place for queer youth. In the same way, I guess it is just a way of making a word seem less harsh, and it is definitely widely used in a lot of different avenues. Not everyone is familiar with it being used in that context but it is definitely more widely accepted as a term, because there is so much that is encompassed in the word "queer." There are so many different types of people. You could spend five minutes talking about all the different types of people. Thus it is an easier way of talking about a group of people.

Senator Nancy Ruth: You talked about dropouts and bullying, and so on. I was just wondering what the gender breakout was in those instances. Are there just as many girls dropping out as there are boys?

Mr. Buchner: Definitely. We could talk about suicide rates, too. There have been studies, the McCreery studies, for example, and reports that have come out that talked about extremely high rates of suicide. Young girls have a higher rate of attempting suicide than do young boys. It has been said that that is probably because when young males attempt suicide, they actually succeed more often than do young women, but definitely the highest rates of suicide right now are among youths who are either queer themselves or facing bullying around queer issues. Therefore that, as well, can translate into the dropout rates and to not wanting to be in school.

Quite often I have youth come in and say that they just do not want to go back to school. They do not want to be there. They transfer a lot. A lot of youth go to alternative schools. However, Vancouver now has two anti-homophobia consultants with the school board, so they are really committed to trying to tackle homophobia in schools, and Vancouver schools are doing great work around those issues in trying to tackle that. There is also a lot of support in the city for that to happen.

In B.C., a grade 12 social justice course will be implemented in the school curriculum, and the school board will also be looking at the entire curriculum to make sure that sexuality comes up in terms of history, for example, where it might not have occurred before in the curriculum. I think things are definitely changing.

I think the biggest thing that affects me on a daily basis is when youth do not feel as though they can be at home. Even though the parents might want them to be there at home, there is still that underlying bullying and harassment from their families around their sexuality. They cannot be themselves. They feel as though they have to hide who they are. That definitely increases the risks that youth face from lots of different things and so it is really challenging. Actually, I have never seen it work yet. I have worked with youth for three years and I have not seen a youth who is not able to be at home where they can find adequate support to survive and still attend school.

Senator Nancy Ruth: The Toronto School Board is in the midst of starting to collect statistics on sexuality for the kids in the schools and there is all kinds of political hullabaloo about it. Does the Vancouver School Board collect statistics on sexual preference?

Mr. Buchner: I have not heard of any such study. I know that again with the McCreery reports, which are older reports — I think they were reports done in 1996 or 2000 — the reports were not really based on questions such as, "Are you queer?" or "What percentage of youth who are queer have been identified?" but more on the lines of, "What is happening to queer youth in the school system?" I do not know if there are any studies being undertaken right now.

Senator Poy: You mentioned that the group that you deal with are all under age 25. From what age to age 25 do you work with?

Mr. Buchner: Again, we have had youth, and parents of youth, contact us as early as age 8 or 9, especially around gender issues. However, the youth who actually do come to GAB and access our programs are usually around the age of 14 to about 20 years old.

Senator Poy: You have a centre that these youths go to? Is that how it works?

Mr. Buchner: Yes.

Senator Poy: They do not live there, is that right?

Mr. Buchner: Right.

Senator Poy: It is like a drop-in centre?

Mr. Buchner: Yes.

Senator Poy: You did mention that you have leadership programs?

Mr. Buchner: Definitely. We train youth to do anti-homophobia workshops in school so that even high school-aged youth can do workshops in their own schools. We train gay/straight alliances to do work in schools and also, as I said, we run a leadership camp so that queer youth can gain leadership skills and do more in their community, especially in communities where there is more isolation, such as outside of the Vancouver area.

Senator Poy: You mentioned that some of them do not want to go back to school because they have problems in school.

Mr. Buchner: Yes.

Senator Poy: How often do they come to these drop-in centres? Do they come every day? I would just like to have a picture of it.

Mr. Buchner: A picture?

Senator Poy: Yes, please.

Mr. Buchner: We are open, usually, Monday to Thursday, 10 a.m.. to 6 p.m.., and then Friday, 10 a.m.. to 10 p.m.. We are not open on the weekends. Our clients do access us throughout the day. In terms of drop-in sessions, we have two right now, with a girls-only drop-in starting in a couple of weeks. The drop-in sessions are Friday nights and Wednesday after school time. That is when we get about 20 to 25 youth who will come to our drop-ins and participate in the activities. In those drops-in sessions we have workshops such as skills-building workshops as well in those times.

Senator Poy: Do the family services ever send youth to your organization, or do these young people have to come on their own?

Mr. Buchner: Other youth organizations have sent youth. Other youth workers, counselors, even schools — school counselors and schoolteachers who have heard about us do send youth to us. I have not heard of any youth coming directly from MCFD, but definitely a lot of services refer them to us, but they can come on their own as well.

Senator Poy: You did mention that families sometimes would bring them, such as parents?

Mr. Buchner: Definitely. We get a lot of phone calls from parents and we try to refer the parents to P Flag. Parents, for some reason, like to access support from us more than going to P Flag. I do not know why that would be.

The Chairman: Could you explain the other one?

Mr. Buchner: P Flag is parent — it is just a group of parents of queer youth.

Senator Poy: Thanks. Do you have psychologists in the organization to help these youth?

Mr. Buchner: We have. We offer free counselling through the centre, not directly through GAB, and those free counselors are usually practicing students who are either in psychology, are psychology majors or are counselling. We do have a referral system where we can refer youth to different types of counselors, such as drug and alcohol counselors and counselors who are queer-friendly or queer-identified. We also have different other psychologists or psychiatrists who are supportive.

The biggest trouble we has is finding adequate housing for street-involved youth. A lot of the street-involved youth programs are Christian based and the youth have a really hard time accessing those services and feeling comfortable in those services.

The Chairman: You have talked about acceptance problems and school problems but you have not mentioned HIV/ AIDS and other medical education or awareness. Is that a problem or is that something that the kids already know about and do not need?

Mr. Buchner: We actually try to offer workshops on HIV/AIDS and sexual health. We work with Youth CO AIDS Society, which is a youth-driven organization that does workshops in schools around HIV and sexual health, so we do definitely provide a lot of knowledge on that topic. We also have a free clinic and a sexual health clinic at the centre, and the street nurses who work there are great, and youth can go there and ask the kinds of questions that they want and things like that. However, queer youth, because of a number of different social factors, are definitely more at risk of many different kinds of health issues and drug and alcohol problems and things like that.

The Chairman: We are here studying the Convention on the Rights of the Child, and in that context we are seeing many and varied aspects of Canadian life. Do you teach anything about the Convention on the Rights of the Child? Is that in your thinking at all?

Mr. Buchner: Not until now, no. After reading the appendix and reading about the convention, I would say yes, but before that, I was not really even aware of it. We knew, of course, that there were laws and Canadian laws especially, around sexuality. We know those laws and the rights of youth and a lot of different aspects. There are different resources through which we instruct youth about their rights, whether it is just relating to their age or whether it is rights with reference to their sexuality. I would say that definitely we do have resources on the rights of the child, but in the context of the UN convention, this is the first I have read of it, and I like it. After reading the UN convention information, there were a lot of things in there that I saw that can definitely speak to what is happening with queer youth now in Canada, and can speak to the fact that things in certain areas in Canada are definitely improving drastically for youth, especially around bullying and homophobia. That is a positive sign, but I know it is isolated in certain areas such as the Vancouver School Board or in Toronto or other cities.

The Chairman: I was about to ask you the same question.

Ms. Kelly: My background is in family law, and children and the law, and I have given a number of workshops in Vancouver schools around children's rights with the convention, actually, as the starting point. I am intrigued by the reaction of the young people, which is that they have never heard of it before. This is not part of their curriculum and they are quite shocked to hear that they have these rights in Canada, and they point to all the ways in which such rights are perhaps not always complied with. After I leave the room, and the teacher is always left with the disarray in this class. However, I think it is something that perhaps needs to be taught to the children, to young people themselves.

Senator Nancy Ruth: And to the teachers.

The Chairman: When you teach about the Convention on the Rights of the Child — and I think it was properly stated by one of the witnesses earlier today that there is not a right that does not have a corresponding responsibility. I often wish that if the Charter of Rights and Freedoms had come with the same rights, freedoms and responsibilities, we would probably not be having the debate around them that we now have.

How do you teach it? Do you say to the children, "These are your rights," or do you say, "Because you have these rights, then you can determine your own future take, responsibility for your life," — or is it simply an information kind of thing?

Ms. Kelly: I start actually with a story. It is a story that I read from Craig Keilburger and his first realization of children's rights, which is that of a young boy in Pakistan who was 12 years old. He was a labourer and he stood up for his rights and was eventually murdered. This is, in a sense, where it began; that the children who were often imagined in the convention were children living in dire situations, and that western children, perhaps, have certain luxuries. Then I begin to look at the convention itself and try to put it into kind of a Canadian domestic context, where they can begin to understand from the examples I use, sort of general youth examples. I am also a Big Sister in the Big Sister/Little Sister program. I have a lot of contact with young people who present with the kind of day-to-day situations to which the convention actually has direct application. I try to put it in that context. It generally becomes a question and answer discussion where they are just intrigued by what is actually in the convention and how it might play out in real life. I had a number of queer youth, or at least youth who are part of their school's gay/straight alliance, specifically ask about issues relating to queer youth, in particular.

The Chairman: Are there any other questions from the senators? If you have, now is your chance.

Senator Nancy Ruth: I think I have lost the question, but it is about how boys and girls are treated differently, but again, I am not quite sure what my question is.

We heard yesterday some testimony that the bullying in schools really applies to boys, and that the discrimination against lesbians in schools tend to be isolation. They are isolated and left alone. I am wondering whether that was true in your experience, but I am also looking for more data on the way kids are treated differently in terms of their gender. I am also interested in trans-kids. I also want to know, of the trans-kids how many are women going to men, or men going to women?

Mr. Buchner: I would say my experience has been that there are more female to male trans-gender kids.

Senator Nancy Ruth: That is what I thought you would say.

Mr. Buchner: Going by the ones who have contacted us.

Senator Nancy Ruth: That is extraordinary. I cannot understand it.

Mr. Buchner: In terms of the bullying that is happening in schools around the gender differences, definitely it looks different, usually, whether it is male or female, in terms of the actually bullying that is happening. I do workshops in schools, and we talk about how people feel about lesbians, and of course a lot of the straight males would be expressing themselves, like "That is fine, that is totally fine, but not two guys," or whatever. Again, with my experience in actually working with bi-sexual or lesbian youth, these youth face the same things. They are bullied physically, they are bullied by other girls and they are bullied by males.

Actually I am recently noticing a change in terms of the way society is viewing gay men in their schools, because the subject is appearing more in the media. You see more in the media about gay men being open about their sexuality, more so than you do lesbians. There is almost a side of young women having a gay best friend, a gay male best friend, and that is starting now and we are seeing that. In many different schools there are openly "out" youth, and youth are coming out at much earlier ages because of many different things: because of the way society feels about it, because of the internet, and things like that. Thus I would say that youth are coming out at an earlier age, and being out in schools. Again, though, if you are a youth and you do not get along socially, or you have a hard time being social in school and you come out, it can be still be really traumatic for them.

To answer your question, senator, in terms of gender I think there is the same amount of bullying taking place, whether among males or females, but I think it happens in different ways.

Senator Nancy Ruth: There was some reason, however, why you decided to do a lesbian-only group in your place. What I mean is, where did that come from? What were you observing? How did you analyze that situation and how did you figure out that that was the response to the need? Is there a guy-only group?

Mr. Buchner: No, there is not a guy-only group. At our drop-ins, most of the time it is males who are attending, more so than lesbians or bisexual women. Lesbians and bisexual women are using our services but not necessarily attending the drop-ins, so we decided to have a girls-only group for that reason.

Senator Nancy Ruth: You are saying that this was the staff's decision to do this to try and attract lesbians into your services?

Mr. Buchner: Yes, for girls to feel more comfortable about coming to use our services, definitely.

Senator Nancy Ruth: Miss Kelly, perhaps we might hear from you in this respect?

Ms. Kelly: I have something to say about the subject of gender bullying. I think I agree with Mr. Buchner that it comes in different forms. I also think you almost have to go beyond sexuality to understand bullying in schools and how bullying is perpetrated against young women. It is a policing of gender in so many instances, and so for a young woman who is coming out, and ultimately kind of threatening the gender, then the bullying is often sexual. It is reinforcing heterosexuality or correct gender performance through sexual harassment of young women.

Senator Nancy Ruth: Including rape?

Ms. Kelly: I —

Senator Nancy Ruth: — do not know?

Ms. Kelly: I do not know, but young women are already sexually harassed. We know that, and this is perhaps an added layer. I think also probably bullying of trans-genders, particularly female to male youth, is very much about policing of gender.

Mr. Buchner: Then homophobia can look quite different. When I ask youth in schools, "Do you think your school is safe if you are openly queer?" a lot of times what I get is that ultimately there would not be actual physical violence, which there definitely is at times, but they say it would be more of an ostracization or isolation of the youth: not feeling welcome, or not having any friends. While there is not necessarily physical violence happening to either males or females at school, or maybe after school, they say that that could happen. Generally, however, through most of the workshops that I do in the Lower Mainland, I understand that there are different ways that youth are being bullied in schools, as opposed to physically bullied.

The Chairman: We have come to the end of this session. I want to thank you for coming forward and sharing with us your experience of involvement with the convention, whether it is recent or otherwise. That gives us more data that we need when we are talking about implementing, in the Canadian context, the Convention on the Rights of the Child.

Also, obtaining information about all youth in Canada is important because the topic cannot always be studied merely from a legal perspective. As I am sure, Ms Kelly, you understand, we must put it into the context of the daily lives of young people in Canada.

We appreciate you both coming here to give us this information for our study. We hope that we will be finished with that study certainly well before Christmas when we must put out an interim report. We are looking to do a final report and we hope that it will be of some benefit to you and, more particularly, to the youth in Canada. Thank you for coming.

The committee adjourned.