Kwan v. Canada (Minister of Citizenship and Immigration) (T.D.) [2002] 2 F.C. 100
Date: 20010830
Docket: IMM-5527-00
Neutral Citation: 2001 FCT 971
Between:
MAN TIN KWAN,
Applicant,
- and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
Muldoon J.
1. Introduction
[1] This is an application under section 18.1 of the Federal Court Act, R.S.C. 1985, Chap.F-7, for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board (the Appeal Division or the Board). On October 11, 2000, the Board dismissed the appeal from a visa officer's decision to refuse the application for permanent residence of the applicant's would-be adopted child, Qi Wen Zhao.
2. Procedural History
[2] On February 17, 1995, the applicant, Man Tin Kwan, a Canadian resident, submitted an undertaking of assistance with Citizenship and Immigration Canada to sponsor an application for permanent residence made by his purportedly adopted child, Qi Wen Zhao. Qi Wen Zhao had been allegedly adopted three months earlier, on November 9, 1994, when she was ten years old. On September 7, 1995, Qi Wen Zhao submitted an application for permanent residence under the family class to the Canadian embassy in Beijing.
[3] From May 23, 1995 to June 9, 1998, no action was taken regarding the application. The CAIPS notes indicate that the file was withdrawn on June 20, 1996, but no record was located to explain why. On June 9, 1998, the file was re-opened, and on August 18, 1998, Qi Wen Zhao was interviewed by a visa officer with the help of a Cantonese interpreter at the Canadian embassy in Beijing.
[4] By letter dated August 26, 1998, Qi Wen Zhao was informed that her application for permanent residence had been rejected:
This refers to your application for permanent residence in Canada.
I have now completed the assessment of your application and in my opinion it would be contrary to the Immigration Act and the Immigration Regulations, 1978 for you to be granted landing in Canada. I will, therefore, not be able to issue an immigrant visa to you.
Your application has been refused as you are a member of the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act in that you do not meet the requirements of paragraph 2(1) of the Immigration Regulations, 1978 for the issuance of a visa.
Regulation 2(1) stipulates "adopted" means a person who is adopted in accordance with the laws of a province or of a country other than Canada or any political subdivision thereof, where the adoption creates a genuine relationship of parent and child, but does not include a person who is adopted for the purpose of gaining admission to Canada or gaining the admission to Canada of any of the person's relatives.
You were adopted in 1994, when you were 10 years old, by your father's cousin and her husband. During your interview with a visa officer on 18 August 1998 you stated that you currently reside with your biological mother and father and are cared for and financially supported by them. You stated that you have always lived with your natural parents. You stated that you wanted to go to Canada to get a better education. Your sponsor immigrated to Canada in 1986 when you were only 2 years old and you stated that you did not see her again until 1994 when she returned to visit for one month and complete the adoption papers. You have not seen your sponsor since 1994 and you stated that correspondence is limited to cards at Christmas, New Years, and your birthday. You were unable to provide any information about your sponsor's life in Canada or where they live. Your parents are both employed and stated that there are no family problems which make them unable to care for you and your younger sisters.
You have failed to satisfy me, through documents provided and information given at interview, that a genuine parent-child relationship exists between you and your sponsor. As you have always been under the care of your natural parents I must conclude that this adoption was undertaken for the purpose of gaining admission to Canada and you are therefore inadmissible under section 19(2)(d) of the Immigration Act.
...
[5] By letter dated August 27, 1998, the applicant was informed that Qi Wen Zhao's application for permanent residence had been rejected.
[6] The applicant appealed the decision to the Appeal Division of the Board under subsection 77(3) of the Immigration Act, R.S.C. 1985, Chap.I-2, as am. (the Act). On October 4, 2000, a one-member panel of the Board dismissed the appeal. The applicant now seeks an order to set aside the Board's decision. The matter came on for hearing, May 24, 2001 in Winnipeg.
3. Statement of Facts
[7] The Appeal Division's board member summarized the facts in her findings at page 5 of the decision:
The following are my findings in relation to the evidence adduced in this appeal.
The Appellant, now 68 years of age, was previously married and has six children between 32 and 42 years of age. He remarried in 1986, his new wife being 37 years of age. The Appellant is retired, has a big house and time to spend with more children. The last of his biological children left the family home in 1994.
Mrs. Zhao testified to a desire to have her own biological child. The Appellant and his wife considered adoption in 1989 after Mrs. Zhao had a miscarriage. She was by this time 40 years of age. In explanation for their delay before adopting in 1994, Mrs. Zhao stated that between 1989 and 1994, she was still hoping to get pregnant.
Both the Appellant and Mrs. Zhao testified that the purpose of the adoption was to bring a child into their home. A late marriage, followed by a miscarriage and failure to conceive over a five-year period culminated in this adoption. I am satisfied that Mrs. Zhao wants genuinely to have her own child, and Mr. Zhou [sic] is happy to agree. Yet I note that it was the natural parents who initiated the proposed adoption. According to the Appellant, the natural parents proposed the adoption in 1992, while Mrs. Zhao stated that this proposal was made in 1988. She remembered this as being one year after the natural parents had their third child. Further, the Applicant testified it was best for her to come to Canada as her parents are poor and "cannot give her things." I find that the natural parents' primary motivation was to gain the Applicant's admission to Canada.
The Appellant's evidence was that both the natural and adoptive parents appreciated that the adoption would benefit the natural parents. They are governed by the one-child policy in China. While the natural parents have three children, one born in each of 1984, 1985 and 1987, the evidence was that it is only the first child who is eligible for educational and other state-provided benefits. The testimony was that a penalty or fee is assessed by the state for the second and third child, who can then be raised by the natural parents at their own cost. The evidence proved that the adoptive parents send money to the natural parents for payment of this penalty or fee for the natural parents' children - not the Applicant.
Whether the natural parents benefit from this adoption in relation to the one-child policy is not clear to me. The second and third child violated the one-child policy, and required payment of fees and expenditures not provided by the state. Yet it was the eldest or first-born child who was adopted because, according to Mrs. Zhao, she knew the girl before she departed for Canada. There was no evidence that the benefits bestowed upon the firstborn would flow to the second-born. Nor was there evidence of whether the Appellant and his wife would continue to provide funds to the Applicant's natural family in connection with their breach of the one-child policy. Thus I find that the evidence does not prove, on a balance of probabilities, that any specific economic benefit accrues to the natural parents in relation to the one-child policy as a result of the adoption, but am satisfied that it proves that the Applicant will be afforded an improved lifestyle as a result of the financial status of the adoptive parents. Further, I find that the evidence is consistent with the purpose of the natural parents being to provide their eldest child with a better future by gaining her admission to Canada.
I find that the motives of the natural parents are to ensure a better future for their eldest child by gaining her admission to Canada. Yet I also find that this is only one purpose, as I find there is credible evidence to prove that the Appellant and Mrs. Zhao wanted to bring a child into their home to create a second family. As a result they adopted the Applicant in 1994, when she was ten years of age and who would by virtue of her age require parenting. However, these findings must he considered in light of all the evidence adduced.
Beyond the question of the purpose of the adoption is the issue of whether the evidence proves on a balance of probabilities that the adoption creates a genuine relationship of parent and child. I find that the evidence proves, on a balance of probabilities, that such a relationship has not been created. The child's name was not changed, nor was the fact of the adoption generally known outside the Applicant's natural family because, according to the testimony of the Applicant, people "tended to gossip." I find this explanation unsatisfactory, in particular as there was no indication of how or why such "gossip" would be problematic. I also find that the evidence proves, on a balance of probabilities, that there was no change in the parental authority from the natural to the adoptive parents. I find that the only influence exerted by the Appellant on the natural parents or the Applicant is related to the money provided by him, which is intended to benefit the family as a whole and not the Applicant alone. I note, too, that the Applicant continues to refer to the Appellant and his wife as her "uncle" and "aunt." I find that the evidence proves that the Applicant continues to regard her natural parents as her authority and parental figures. The evidence of the witnesses was that the Applicant would not be considered the child of the Appellant and Mrs. Zhao until the girl arrives in Canada, which is when a parent and child relationship would commence.
I find this evidence inconsistent with the adoption creating a genuine relationship of parent and child. I concur with the Appeal Division jurisprudence that the definition of "adopted" requires that the relationship of parent and child commence at the time of adoption, geographic separation notwithstanding. I find that the relationship is not expected to be fully developed, being described in Cansino as "inchoate". In this case, the adoption commenced in 1994, but the Appellant and his wife have taken no parental authority or responsibility for the Applicant. Their continued contribution is financial, which is insufficient to prove a parental relationship. The lack of development of a parent and child relationship is not explained by the evidence, even considering the geographic separation. It is not sufficient to say that after the child comes to Canada a parent-child relationship will commence.
Based on the forgoing [sic], I find that a purpose of the adoption is to gain the Applicant's admission to Canada, and also find that the evidence does not prove that the adoption creates a genuine relationship of parent and child.
This appeal is dismissed for lack of jurisdiction.
4. Issues
a. Did the Board err by refusing to rule on the visa officer's alleged errors of law?
b. Did the Board err by failing to advert to the purposes of the legislation?
c. Did the Board err in interpreting the definition of adopted?
d. Did the Board err in evaluating the genuineness of the relationship?
e. Did the Board err by failing to consider the best interests of the child?
5. Refusal to Rule on the Visa Officer's Alleged Errors of Law
Applicant's Submissions
[8] The Board stated the following at page 1 of its decision:
The visa officer found that there was insufficient evidence of the adoption having created a genuine parent and child relationship, in part, because the child continued to live with her biological parents, who are cousins of the Appellant's wife Shu Zhueng Zhao. The visa officer also described that there was little personal contact between the Appellant and the adopted child between 1986 when she was two years of age and 1994, when the adoption was commenced and the Applicant was 10 years of age. There were no personal visits after 1994 by the Appellant or his wife, who the Applicant referred to as "aunt" and "uncle." Also, there was little evidence of communication between the child and her adoptive parents subsequent to the adoption.
Counsel for the Appellant asserted that the visa officer applied the wrong statutory test in applying the definition of "adopted" to the Applicant and finding her not to be a member of the family class. Further, counsel averred that the conclusion that the adoption was to gain the Applicant's admission to Canada flowed from the visa officer's determination that there was insufficient evidence of a genuine parent and child relationship. He asserts this was without evidence specific to the purpose of the adoption. Counsel for the Appellant also asserts that the visa officer's failure to interview the adoptive parents regarding their motivation, which is a factor for consideration in determining the purpose of the adoption, is tantamount to a breach of natural justice.
I will not make a finding with regard to the errors asserted by Appellant's counsel, as it is not determinative of this appeal. Since the Federal Court ruling in Kahlon, appeals before the Appeal Division are hearings de novo. Thus any deficiencies in the treatment or availability of evidence may be remedied at this proceeding. The onus is on the Appellant to prove his case. Consequently I will analyze all the evidence and submissions in this case to arrive at a decision.
(emphasis added)
[9] The applicant submits that the Board erred when it declined to hold whether the visa officer committed the errors of law which were alleged. The Board did so by relying on Kahlon v. M.C.I. (1989), 97 N.R. 349 (F.C.A.), in which the Court stated at page 351 that an appeal to the Board is a "hearing de novo in a broad sense." The applicant submits that a hearing before the Board is de novo in that the Board can make different findings of fact based on the evidence which was presented to it because it is not bound by the record which was before the visa officer. However, the hearing remains an appeal from the decision of the visa officer, and the Board must rule whether the visa officer erred. The applicant submits that the Board cannot refuse to pronounce itself regarding errors of law, and the failure to do so constitutes an error which goes to jurisdiction.
[10] The applicant submits that the intent of Parliament was to create an appeal process, not a second immigration hearing. Because the applicant appealed to the Board regarding errors of law, he was entitled to know whether those errors were committed. The applicant submits that even if the Board correctly considered and ruled on the substantive legal issues which were before it, the Board nonetheless erred by not ruling on whether the visa officer considered the legal issues correctly. Further, he alleges an error of law committed by the visa officer automatically entitles the applicant to a successful appeal. That is a dubious allegation.
[11] Finally, the applicant submits that all of the jurisprudence before this Court concerns the ability of the Appeal Division to make different findings of fact during a hearing de novo. The cases which were submitted by the respondent, says the applicant, are distinguishable because they do not consider whether the Board must review errors of law.
Minister's Submissions
[12] The Minister submits that the effect of Kahlon, supra, is that the Board may decline to rule on errors which were allegedly made by a visa officer. The Federal Court of Appeal, speaking unanimously through Mr. Justice Mahoney, stated the following at page 350:
[4] In Gana v. M.M.I., [1970] S.C.R. 699, the nature of the appeal to the Immigration Appeal Board under earlier legislation was considered. I agree with the view expressed by Thurlow, C.J., in his concurring judgment in Mohamed v. M.E.I., [1986] 3 F.C. 90 at 95:
The language of the applicable statutory provisions has been changed somewhat since the decision of the Supreme Court in Gana v. Minister of Manpower and Immigration, [1970] S.C.R. 699, and this Court in Srivastava v. Minister of Manpower & Immigration, [1973] F.C. 138, were pronounced but I think the intent of Parliament is still what it was under the former legislation, that is to say, to establish and continue as a court of record a board empowered to decide judicially the facts on which the admissibility of a person depends and not merely to pass on the procedural or substantive supportability of the administrative position on such statutory requirements taken by a visa officer.
...
[5] The effect of that decision is, in my opinion, that the hearing of an appeal by the Immigration Appeal Board is a hearing de novo in a broad sense. I again agree with the view of Thurlow, C.J., expressed in Mohamed, at p. 94:
In my opinion the issue to be decided by the Board on an appeal under s.79 of the Act is not whether the administrative decision taken by a visa officer to refuse an application because the information before him indicated that a person seeking admission to Canada was of a prohibited class was correctly taken but the whole question whether when the appeal is being heard, the person is in fact one of the prohibited class.
(Emphasis added)
[13] The Minister submits that the manner in which the visa officer came to her decision is irrelevant because the issue before the Board is whether the final decision was correct. In Rattan v. M.E.I. (1994), 73 F.T.R. 195 (T.D.), Madam Justice Reed stated at page 198:
[6] The Appeal Division treated the appeal under section 77 as more than just a review of the immigration officer's decision on the basis of the evidence before him. The Appeal Division heard additional evidence, from the applicant, which was not before the immigration officer who made the initial refusal. It addressed its reasons to the evidence before it and decided the issues on that basis.
[7] An appeal under section 77 is not a judicial review where only the correctness of the immigration officer's decision on the basis of the material before him or her is under consideration. This is clear from subsection 77(3) which allows for appeals on questions of fact and from the procedure followed which allows the sponsor, in Canada, to call witnesses and other evidence. The Appeal Division's role is not to determine whether the immigration officer's decision was correctly taken, but to determine if the sponsoree is in fact a member of the class of persons excluded by s.4(3) of the Regulations: Mohammed v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 90 (C.A.) at 94 per Thurlow C.J. For that purpose the sponsor's evidence, and the immigration officer's decision must be reviewed in coming to the decision. If the sponsor can satisfy the panel that the immigration officer's conclusions were incorrect, an appeal is allowed.
(Emphasis added)
[14] Therefore, the Minister submits that the Board did not err when it declined to make a ruling regarding possible errors which were committed by the visa officer.
Analysis
[15] Paragraph 77(3)(a) of the Act establishes the right of appeal for sponsors of unsuccessful applicants for landing in Canada:
Appeals by sponsors
77(3) Subject to subsections (3.01) and (3.1), a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds:
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact;
...
[16] In Kahlon, supra, the Federal Court of Appeal held that an appeal to the Appeal Board is a hearing de novo in a broad sense. As discussed in R. Sullivan, Statutory Interpretation (Concord, Ont.: Irwin Law, 1997) at page 41, courts are to use the ordinary meaning of words if there is no reason to reject it in favour of another interpretation. Black's Law Dictionary, 6th ed. (St. Paul, Minn.: West Publishing, 1990) at page 721 defines a "hearing de novo" as follows:
Generally, a new hearing or a hearing for the second time, contemplating an entire trial in the same manner in which the matter was originally heard and a review of the present hearing. Trying matter anew the same as if it had not been heard before and as if no decision had been previously rendered...On hearing "de novo" court hears the matter as a court of original and not appellate jurisdiction.
The Dictionary of Canadian Law, 2nd ed., (Dukelow and Nuse, Scarborough, Ont., Carswell, 1994) at page 549, defines "hearing de novo" thus:
"***[I]s *** an altogether fresh or new hearing and not limited to an enquiry to determine if the tribunal acted properly and correctly on the evidence and material before it ***" Newterm Ltd., Re (1988) 38 M.P.L.R. 17 at 19, 70 Nfld. & P.E.I.R. 216, 215 A.P.R. 216 (Nfld.T.D.), Steele, J.
[17] The Court does not accept the applicant's contention that a hearing de novo applies uniquely to errors of fact. A hearing de novo is undertaken as if the matter were before the Appeal Division for the first time, and the issue is not how the visa officer came to her conclusion, but whether the sponsoree is a member of the family class. An appeal under subsection 77(3) is not a judicial review, but an entirely new hearing in which the Board examines the whole record and hears submissions by the appellant and a case officer. "If the sponsor can satisfy the panel that the immigration officer's conclusions were incorrect, an appeal is allowed," according to Reed, J. in Rattan, supra, p. 199.
[18] In the case at bar, the Board reviewed the evidence which was before the visa officer and discussed her conclusions. The Board also heard submissions regarding the alleged errors. The only step which the Board omitted was to adjudge whether the visa officer was mistaken in law. Although it may have been salutary for the Board to pronounce on whether or not an error occurred, if only to prevent future problems, it was not obliged to do so. It was for the sponsor to convince the Board that the sponsoree is a member of the family class, and as a matter of effective advocacy, counsel may have wished to demonstrate how the visa officer allegedly erred. However, the Federal Court of Appeal envisaged a broad interpretation of the definition of a hearing de novo , and this Court is not inclined to narrow it by obliging the Board to review the visa officer's alleged errors of law. The case of Kahlon, supra, is binding on this Court.
[19] Nor does this Court agree with the applicant's proposition that refusing to pronounce on the correctness of the visa officer's decision entitles the applicant to success on appeal. The Board's purpose is not to uphold nor to reject the visa officer's decision, but to determine whether the sponsoree is a member of the family class. Subsection 77(3) after all, provides for an appeal as such, not judicial review, which could mean rejecting the visa officer's decision if such were the proper course.
[20] The applicant submitted in oral argument that if the visa officer's alleged errors of law are irrelevant to the Board, the applicant's remedy from the decision of the visa officer must be a judicial review in the Federal Court. The proposition is incorrect because it is the Board which is enabled under subsection 77(3) to review decisions of the visa officer on any ground of appeal involving a question of law or fact, or mixed law and fact; the first step is to appeal the decision of the visa officer to the Board in a hearing de novo. Should it make the same error as the visa officer, or a different error, the remedy is then to seek judicial review of the Board's decision in the Federal Court, trial division.
[21] Given the Court's findings regarding the nature of a hearing de novo, and given that this present proceeding is a judicial review of the decision of the Immigration Appeal Division, the Court declines to review the decision of the visa officer, and will review only the applicant's submissions regarding errors which were allegedly committed by the Board.
6. Failure to Advert to the Purposes of the Legislation
[22] The Board stated the following at page 2 of the decision under appeal:
1. Where there is no abuse of the immigration process
Counsel asserts that the definition of "adopted" should be interpreted in light of the intentions of Parliament to prevent abuse of the immigration process. He explained, but tendered no evidence, that Citizenship and Immigration Canada (CIC) sought to prevent the use of adoptions as a means to successfully sponsor otherwise non-eligible applicants; that the purpose of the 1993 amendments to the definition was to prevent adoptions for immigration purpose.
Counsel went on to add that the age of the adopted child is one way to determine if the adoption is genuine. For example, if the adopted child is under the age of 13, this can be assumed to be a bona fide adoption. This would be a child in need of parenting, and there would be no abuse of the immigration process.
I accept that the age of the child at adoption is one factor which may be considered in determining the bona fides of the case, as well as the purpose of the adoption. However I am not persuaded that it is determinative. I note that the 1993 amendments to the Immigration Regulations, 1978 (the "Regulations") do not provide for such a test. Even if I were so persuaded, I have no basis on which to find that 13 is the relevant age. In this case the Applicant was 10 years of age when the adoption was commenced. This is a factor I considered in determining whether the Applicant falls within the family class.
2. Microscopic examination of the relationship not required
Counsel for the Appellant submits that "microscopic"examination of the relationship between appellants and their adoptive child is unnecessary to prevent abuse of the immigration process. He posits that compliance with the definition of "adopted" requires only proof of the existence of a parent and child relationship. He does not propose a test to determine the existence.
In this regard, the Appeal Division is bound by Federal Court dicta in Sharma and Edrada, both of which dealt with the definition of "adopted" prior to its amendment. I note that even prior to adding the elements of a genuine parent and child relationship as well as the immigration purpose to the definition, these decisions of the Federal Court bound the Appeal Division to undertake a factual analysis of the relationship. This issue was also discussed in my decision in Capiendo in which counsel raised this same point.
Legislative Framework
[23] Paragraph 6(2)(a) of the Act allows any Canadian citizen or permanent resident to sponsor the application for landing of any person who is a member of the family class:
Sponsorships
6(2) Any Canadian citizen or permanent resident may, where authorized by the regulations, sponsor the application for landing of
(a) any person who, in relation to the Canadian citizen or permanent resident, is a member of the family class;
...
[24] Subsection 2(1) of the Regulations defines "member of the family class" as follows:
"member of the family class", with respect to any sponsor, means
...
(b) the sponsor's dependent son or dependent daughter
...
[25] Subsection 2(1) of the Regulations defines "dependent daughter" as follows:
"dependent daughter"means a daughter who
(a) is less than 19 years of age and unmarried,
...
[26] Subsection 2(1) of the Regulations defines "daughter" as follows:
"daughter" means, with respect to a person, a female
...
(b) who has been adopted by that person before having attained 19 years of age;
[27] Subsection 2(1) defines "adopted" as follows:
"adopted" means a person who is adopted in accordance with the laws of a province or of a country other than Canada or any political subdivision thereof, where the adoption creates a genuine relationship of parent and child, but does not include a person who is adopted for the purpose of gaining admission to Canada or gaining the admission to Canada of any of the person's relatives.
(Emphasis not in text)
Applicant's Submissions
[28] The applicant submits that the Board erred in failing to have regard to the purpose of the legislation when it determined that Qi Wen Zhao did not meet the definition of "adopted" under the Regulations. To aid in determining the purpose of the legislation, the applicant submits the Regulatory Impact Analysis Statement, C. Gaz. 1993.II.630. (the RIAS) which accompanied amendments to the Regulations concerning adopted children:
Description
These amendments remove the previous distinction between children adopted abroad and natural born children for the purposes of determining family membership. To reduce the potential of adoptions of convenience (adoptions undertaken for immigration purposes or for eventual sponsorship of the birth family), the amendments provide for adoptions undertaken in situations where the child is in need of parental care.
In the past, adopted children were eligible for family class membership only if the adoption had taken place before the child had reached the age of thirteen. Similarly, an adopted child was eligible to be admitted as dependant accompanying an independent immigrant or a sponsored family class member if the child had been adopted before reaching the age of thirteen.
These provisions prevented adoption in cases where the adopted child over thirteen years of age was genuinely in need of parental care. This concern has been raised by the Parliamentary Subcommittee on Equality, in its Report Equality for All. As well, several court actions have been initiated against the previous provisions alleging that they were discriminatory and contrary to the equality provision of the Canadian Charter of Rights and Freedoms. In addition, the age barrier was not consistent with the United Nations Convention on the Rights of Children and did not reflect the negotiations on international adoption under the auspices of the Hague Conference on Private International Law.
The amendments extend the eligibility of an adopted child for purposes of immigration to children under nineteen years of age, thus bringing the adoption provisions in line with the other immigration provisions dealing with sponsorship of children and dependency.
The amendments also seek to address the potential for use of the adoption provisions to circumvent immigration requirements. The family relationship created by adoption would normally preclude the ability of the child to sponsor the birth family. To prevent the misuse of the adoption provisions for the purposes of immigration, regulations are amended to prohibit adoptions of convenience. These amendments are modelled on the marriage of convenience clause and permit an assessment of the authenticity of the adoption.
Alternatives Considered
Because of the potential for abuse, careful consideration was given to retaining the status quo. However, it was concluded that it was necessary to develop an approach which balances considerations of equality and fairness, concerns regarding the welfare of the child and the use of the family class provisions to circumvent immigration requirements.
[29] The applicant also submits the following affidavit by Richard Clive Harrison:
I, Richard Clive Harrison, of the City of Nepean, in the Province of Ontario, MAKE OATH AND SAY AS FOLLOWS:
1. I am a Program Development Officer with the Policy and Program Development Branch of the Canada Employment and Immigration Commission.
2. I have reviewed policy files, from 1961 to the present [1997], of the Canada Employment and Immigration Commission at its headquarters in Hull, Quebec, as well as files of the said Commission and of the former Department of Manpower and Immigration held by the National Archives of Canada with respect to adoption in the immigration context. What follows is information I obtained from the said files.
3. In approximately 1974, a problem came to light, namely persons arriving in Canada for the purpose of being adopted by relatives in the hope of then being landed pursuant to paragraph 31(1)(f) or (g) of the Immigration Regulations Part I.
4. Two provinces, Manitoba and Ontario, expressed concerns about this situation. The problem continued into 1976, when the Ministry of Community and Social Services of the Province of Ontario reported that there were approximately 900 sibling adoptions in Ontario in 1975, the vast majority of which were of persons from outside Canada. Very few of these children were said to fall within the class of persons described in paragraph 31(1)(g) because they had not been nominated or placed with an adoption agency; rather one or both parents were usually living overseas and were no worse off materially than any of their compatriots.
5. A sampling of six councillors in a Canada Immigration Centre in the Ontario Region of the Department of Manpower and Immigration over a two week period some time prior to April [illegible] 1976 showed that the six councillors had received a total of 16 applications on behalf of children adopted in Canada. Of these, nine were for siblings, five were for nephews and nieces and two were from putative fathers. Three of the 16 children were under 13 years of age, while 5 had passed their seventeenth birthday. This sampling was thought to be fairly representative of the situation in the Region.
6. It also became obvious that the age of adoption for adopted sons and daughters in the sponsored dependant category of immigrants was used to circumvent the selection process by permitting the adoption and sponsorship of persons who could immediately enter the labour market on arrival. Therefore, a person who should have been assessed as an independent applicant would enter as an adopted son or daughter and avoid the labour market assessment in the selection criteria. This avenue was also open to applicants who could not qualify in the independent category, but could arrange to be adopted. The result was that a movement of unselected , poorly qualified young workers was created.
7. The records indicate that the aim of the Department of Manpower and Immigration and the provinces throughout was to develop regulations to recognize adoptions in the immigration process while preventing abuse. The issue was considered from a number of perspectives, although no thorough statistical study of the problem is recorded as having been made. The underlying concerns were to protect the best interests of children, foster the development of a true parent-child relationship, and prevent abuse of the immigration program. Solutions proposed included requiring a minimum age difference between parent and child, adjusting the age limit for adoption to correspond [illegible].
8. It is against this backdrop that the Immigration Regulations, 1978 required that sons and daughters be adopted prior to obtaining thirteen years of age to qualify for the benefits enjoyed by sons and daughters qua sons and daughters under the Immigration Regulations, 1978. The proposal of age 13 was adopted to prevent the kind of abuse of the immigration program observed.
9. I make this affidavit in respect to an appeal by Gerardo Morzan Decayanon and not for any improper purpose.
[30] The applicant submits that the current definition of "adopted" has two purposes: to allow the adoption of children who are under the age of 19, and to prevent the circumvention of immigration requirements. The applicant submits that the law tries to prevent two types of immigration abuse. The first is when a child enters Canada to sponsor his or her birth family. The second is when a child is adopted to avoid the more demanding evaluation for independent workers and obtains employment upon arrival in Canada. The applicant submits that it is the latter type of abuse which is targeted by the legislation. The applicant defines the goals of the legislation as preventing the illegal immigration of children who then start working, or who fall into the social system for support, or who are forced by their adoptive parents into the job market, or into the social welfare system.
[31] In the case at bar, the child was said to have been adopted at age 10. The applicant submits that she was not adopted to enter the labour market, nor was there any evidence that her adoptive parents would abandon her to the welfare system. Therefore, the Board erred because it never referred to the potential abuse that would be caused to the immigration system by allowing Qi Wen Zhao to enter Canada.
[32] The applicant submits that the Board should not evaluate the quality of the parent/child relationship, but rather its existence. Nor should the Board consider whether the adoption is to provide the child with a stable home environment. The applicant submits that an adoption is not genuine only when it might abuse the immigration or social welfare systems, and the Board must specifically make such a finding.
Minister's Submissions
[33] The Minister submits that the purpose of the definition of "adopted" is to prevent the misuse of the adoption provisions for improper immigration purposes such as circumventing the legislated selection process. The concerns cited by the applicant are some of the potential outcomes of abuse of the immigration program.
[34] To address potential abuse of the immigration program, urges the Minister at paragraph 22 of her memorandum of argument, legislators specifically directed the Board to consider whether there is a genuine parent/child relationship. It is, therefore, not for the Board to look beyond the statutory test and to decide to admit a child because, notwithstanding the absence of a genuine relationship, her admission would not result in pressures on the social services system. The Immigration Appeal Division is driven to determine whether there be a genuine parent-child relationship and it ought never to duck that duty. The Board resolutely faced it, here.
Analysis
[35] The Court is not convinced that the applicant's version of statutory purposes of the definition of "adopted" is entirely correct. Before the amendment in 1993, the definition of "adopted" under the Immigration Regulations, C.R.C., c. 940, s.2 (1978) stated:
"adopted", with respect to a child, means adopted under the laws of any province of Canada, or under the laws of any country other than Canada or any political subdivision thereof where the adoption created a relationship of parent and child and was completed prior to the 13th birthday of the child.
[36] The definition of "adopted" was amended by SOR/93-44 to its current form:
"adopted" means a person who is adopted in accordance with the laws of a province or of a country other than Canada or any political subdivision thereof, where the adoption creates a genuine relationship of parent and child, but does not include a person who is adopted for the purpose of gaining admission to Canada or gaining the admission to Canada of any of the person's relatives.
[37] The first change which is immediately apparent is that Parliament added a requirement that the adoption create a "genuine relationship of parent and child." The previous definition required only that a "relationship of parent and child" be created.
[38] Secondly, the previous definition of "adopted" required that the adoption be completed "prior to the 13th birthday of the child." The amended definition does not state when the adoption must be formalized. The definition of "daughter" provides that a daughter includes a female person who has been adopted before having attained 19 years of age. Therefore, the amendment raises the age limit for adoption from 13 to 19 years.
[39] Finally, the new definition specifically mentions the types of abuse which are sought to be controlled: the definition of "adopted" does "not include a person who is adopted for the purpose of gaining admission to Canada, or gaining the admission to Canada of any of the person's relatives."
[40] The Regulatory Impact Analysis Statement provides some background regarding these changes. It states that the Regulations seek to reduce the potential of adoptions of convenience, which are defined as adoptions undertaken for immigration purposes, as well as adoptions undertaken for the eventual sponsorship of the birth family. The RIAS clarifies that adoptions undertaken for immigration purposes are adoptions undertaken to circumvent immigration requirements. Where, as here, statutory interpretation is in contention, the RIAS can help the Court to interpret legislation.
[41] The problems which occur when immigration requirements are circumvented are discussed in Mr. Harrison's affidavit. He notes that the age of adoption in the sponsored dependant category was used to circumvent the immigration selection process by permitting the adoption and sponsorship of persons who could immediately enter the Canadian labour market upon arrival. Therefore, persons who should have been assessed as independent applicants would enter as adopted children, and thereby avoid the more stringent labour market assessment criteria. The result was a movement to Canada of unselected and poorly qualified young workers. At the time, Parliament sought to remedy the problem by imposing a requirement that only children who were adopted before attaining the age of 13 be permitted to immigrate to Canada.
[42] It is easy to imagine that some families experienced hardship because of this age requirement, and the RAS states that the age 13 provision prevented adoption in cases where the adopted child was over 13 years old but was genuinely in need of parental care. This concern was raised by the Parliamentary Subcommittee on Equality, and several court actions were initiated under the Charter. Moreover, the age barrier was inconsistent with at least two international treaties to which Canada is a party. Therefore, Parliament raised the age limit to 19. But without the age 13 barrier, the problems which were previously experienced because of adoptions of convenience could easily reoccur. Therefore, Parliament adopted the "genuineness" criterion prohibit adoptions of convenience by permitting an assessment of the authenticity of the adoption. The RAS states that the genuineness of the relationship would also preclude the ability of the child to sponsor the birth family.
[43] Parliament considered retaining the status quo to prevent abuse, but concluded that an approach which balanced considerations of equality, fairness, the welfare of the child, and some abuse of immigration requirements, was needed. Therefore, the requirement that the adoption create a genuine relationship of parent and child was an obviously deliberate policy choice by Parliament, and requires an assessment of the authenticity of the adoption.
[44] This Court concludes that there are three purposes to the amended definition of "adopted" under the Regulations: to prevent adoptions undertaken to circumvent immigration selection requirements; to prevent adoptions undertaken to sponsor the birth family; and to promote family unity by ensuring that adopted children under the age of 19 who are genuinely in need of parental care are allowed to immigrate to Canada. The statutory test embodies the purposes of the legislation by requiring immigration officials to evaluate the genuineness of the relationship between the adoptive parents and the child before concluding that the child can be landed as a member of the family class.
[45] The applicant's submission that the legislation seeks only to prevent abuse is misleading. The legislation does in effect seek to prevent abuse, but it also seeks to promote family unification where a genuine relationship exists between the parent and the child. The applicant's submission that the legislation aims to prevent adopted children from becoming burdens on the welfare system is imprecise. The legislation is not specifically directed at relieving pressures on the social welfare system, although preventing abuse of the immigration system may, in fact, cause that result by preventing unskilled workers from entering Canada. However, the legislation attempts to prevent that outcome by discouraging if not preventing, adoptions of convenience. It is not for the Board to look beyond the statutory test. Doing so would require immigration officials to evaluate whether a child's admission into Canada would result in pressures on social services notwithstanding the absence of a genuine parent/child relationship.
[46] The applicant also submits that the purpose of the legislation is to prevent the adoptive parents from forcing the adopted child into the labour market or into the welfare system. This submission is speculative, and the problem which it addresses can be remedied by evaluating the genuineness of the relationship. The applicant submits that it was not suggested here that Qi Wen Zhao's adoptive parents would abandon her to the welfare system, nor would she enter the labour market upon arrival. However, it is the veracity of claims like these which the legislation seeks to verify by requiring Canadian officials to evaluate the genuineness of the relationship.
[47] The applicant also submits that it is not the quality of the parent/child relationship which is at issue, but rather its existence, and that the Board should not concern itself with the strength of the relationship. This submission contradicts the explicit legislative requirement that the adoption create a genuine relationship of parent-and-child. Clearly, this obliges immigration officials to conduct a qualitative evaluation of the relationship and not merely to verify its existence.
[48] In M.C.I. v. Edrada (1996), 108 F.T.R. 60 (T.D.), the Minister appealed from a decision of the Board which had allowed an appeal made by a sponsor. The Board had determined that the only issue to be decided was whether the adoption was legally valid. The Court quashed the decision holding that the Board was also required to determine whether there was a parent/child relationship established because of the adoption. Mr. Justice MacKay stated at page 64:
[18] In my view, the tribunal had a duty under then s-s. 2(1) of the Regulations, having found the foreign legal requirements for adoption were met, to determine whether the relationship of parent and child has been established between the adopting parent and the adoptee. The definition of "adopted"in s-s. 2(1) contemplates a two step process in which a determination must be made, first whether foreign adoption laws have been complied with, and second whether a relationship of parent and child is created.
[19] In my opinion, if Parliament had intended that a determination whether an individual is considered to be adopted for the purposes of the Act and Regulations was to be based solely on compliance with the adoption laws of the applicable foreign jurisdiction, there would have been no purpose in including the phrase "where the adoption created a relationship of parent and child". That phrase, in my view, must be given meaning. In order to establish an adoption for the purposes of that definition, it is necessary to demonstrate the existence of a relationship of parent and child, in addition to compliance with applicable adoption laws.
[20] In my view the tribunal here erred in law in finding that its determination of whether Randy had been adopted for the purposes of the Act and Regulations depends solely on whether or not the adoption laws of the Philippines were satisfied so that the legal relationship of parent and child was created by the adoption. The tribunal also had a responsibility to determine, on the facts presented, whether the adoption created, in fact, the relationship of parent and child between the respondent and Randy. The tribunal declined to consider that question, an issue essential under the Act and Regulations. In thus declining to consider the matter the tribunal erred in law.
(Emphasis added)
[49] In M.C.I. v. Sharma (1995), 101 F.T.R. 54 (T.D.), the Minister appealed a decision by the Board which allowed an appeal by a sponsor. Mr. Justice Wetston stated at page 56:
2. Parent and child relationship?
[11] With respect to the second issue as to whether the adoption created a relationship of parent and child, it is clear that the Appeal Division erred in failing to assess the factual circumstances surrounding the adoption. In concluding that a valid foreign adoption results in the creation of a parent and child relationship, the Appeal Division cannot have considered the Federal Court of Appeal's decision in Singh, supra. A parent and child relationship is not automatically established once the requirements of a foreign adoption have been demonstrated. In other words, even if the adoption was within the provisions of HAMA, whether the adoption created a relationship of parent and child, thereby satisfying the requirements of the definition of "adoption" contained in subsection 2(1) of the Immigration Regulations, 1978, must still be examined. While I doubt, on these facts, that the requisite parent and child relationship has been established, that is a determination which ought to be made by the Appeal Division.
(Emphasis added)
[50] Finally, in his submissions, the applicant's counsel did not refer to the problem of adopted children seeking to sponsor their natural parents, a form of abuse which is surely targeted by the legislation. In the case at bar, there has been little contact between the child and her adoptive parents, and there are strong links between the child and her natural parents. This is a situation in which it is quite possible that the adopted child might ultimately seek to sponsor her natural parents for immigration.
[51] In summary, the statutory test evidently embodies Parliament's objectives. The test requires an evaluation of the genuineness of the relationship between Qi Wen Zhao and her adoptive parents. By performing this evaluation, the Board complied with the statutory test and with the purposes of the legislation.
7. Errors in Applying the Definition of "Adopted"
a. Primary Purpose of the Adoption
[52] The appeal division member stated at page 6 of the decision:
I find that the motives of the natural parents are to ensure a better future for their eldest child by gaining her admission to Canada. Yet I also find that this is only one purpose, as I find there is credible evidence to prove that the Appellant and Mrs. Zhao wanted to bring a child into their home to create a second family. As a result they adopted the Applicant in 1994, when she was ten years of age and who would by virtue of her age require parenting. However, these findings must he considered in light of all the evidence adduced.
Applicant's Submissions
[53] The definition of "adopted" under the Regulations excludes a person who is adopted for the purpose of gaining admission to Canada. The applicant submits that for an adoption to violate the requirements of the legislation, the adoption must have been undertaken solely to gain admission to Canada. Where gaining admission to Canada is not the sole purpose of the adoption, the Regulations do not bar the entry of the adopted child. At page 10, para.28 of the applicant's reply, it is asserted:
28. *** For adoption, the legislator has provide [sic] a specific guide or focus to allow the conclusion of immigration purpose. The guide or focus is genuine parent child relationship.
29. The primary or umbrella test under the regulations is immigration purpose. Given that immigration purpose must be inferred by looking at other facts and is unlikely to [sic] stated by the parties up front, the regulation tells those administering the Act what other facts to look at, the genuineness of the parent child relationship. However, where the primary or umbrella test of purpose is met, there is no further inquiry to be made. Genuineness, for the purpose of the regulation, is presumed, once the applicant has satisfied the visa officer or the appellant has satisfied the Board that the adoption was not for an immigration purpose.
The final propositions stated above on the applicant's behalf are profoundly erroneous. Genuineness is not to be presumed and certainly not by showing that the "adoption" is not for an immigration purpose - it never must be so.
Minister's Submissions
[54] The Minister submits that the statutory test requires that the adoption create a genuine relationship of parent and child, and the Board held that no such relationship was created here. Moreover, the Minister submits the statement by Madam Justice Sharlow at page 316 of Jeerh v. M.C.I. (1999), 167 F.T.R. 315 (T.D.) for the proposition that it was reasonable for the Board to conclude that the adoption was for an immigration purpose because of the absence of a genuine relationship:
[7] The third condition is met if Gurnek was not adopted for the purpose of gaining admission to Canada for himself or any of his relatives. The tribunal found that this condition was not met, but offered no reasons for that conclusion apart from its conclusion on the second condition. In other words the tribunal, having found that the second condition was not met, inferred that the third condition was not met either. If the adoption did not create a genuine relationship of parent and child, it is reasonable to conclude that the purpose of the adoption was to facilitate Gurnek's immigration to Canada. However, if the tribunal erred in finding no genuine relationship of parent and child, it must also have erred in its conclusion with respect to the third condition.
(Emphasis added)
The applicant's counsel simply misinterpreted the learned judge's words. She did not mention any presumption of genuineness.
Analysis
[55] The applicant's counsel states in his memorandum of law that "where gaining admission to Canada is a purpose of the adoption, even the primary purpose, but not the sole purpose of the adoption, then the regulation does not bar entry of the child." This proposition cannot stand given that the definition of adopted "does not include a person who is adopted for the purpose of gaining admission to Canada."
[56] Although it is not apparent whether Sharlow J. was endorsing or reiterating the position of the tribunal in Jeerh, supra, there is merit in proposing that where a relationship between an adopted child and her adopted parents is not genuine, the purpose of the adoption can be concluded to have been to gain the child's admission into Canada. However, the Court does not have to decide the matter on this point, because the Board concluded that the statutory test was not satisfied given that there was no genuine relationship here.
b. The test for Adoption is Two-Pronged
Applicant's Submissions
[57] The applicant submits that the test for adoption is two-pronged and is similar to the test for a marriage of convenience, which is set out in subsection 4(3) of the Regulations:
The family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse.
[58] In Horbas v. M.E.I. (1985), 2 F.C. 359 (T.D.), Mr. Justice Strayer held that to refuse an application for spousal sponsorship, an applicant must fail both prongs of the test. The applicant submits that the same principle applies here: to be refused entry, the adoption must be not genuine, and it must be effected solely for immigration purposes. Once the Board held that the applicant wanted to adopt the child, according to the applicant's counsel, it should have ended its inquiry, and the appeal should have been allowed.
[59] The applicant also submits the statement from Rattan v. M.C.I., supra, where Reed J. stated at page 199:
[10] One does not have to find a specific statement by the relevant spouse that there is no intention to reside permanently with the sponsoring spouse. Indeed, one would hardly expect to find such a statement. Inferences will usually be made in these cases from a number of aspects of the evidence.
Minister's Submissions
[60] The Minister submits that an alleged adoption does not meet the statutory test if it does not create a genuine parent/child relationship, or if it was carried out for immigration purposes. If the Board determine that either of these conditions has been met, it may dismiss the appeal as failing to meet the statutory standard.
Analysis
[61] The applicant appears to equate the desire to adopt a child with the establishment of a genuine relationship. The statutory test requires more than good intentions. Moreover, the definition of "adopted" is not to be interpreted as is the definition of a marriage of convenience. A plain reading of the marriage-of-convenience clause requires that two elements be present: the marriage must be entered into primarily to gain admission to Canada, and the marriage must be entered into without the intention of residing permanently with the other spouse. As discussed by Sharlow J. in Jeerh, supra, at page 316, a plain reading of the definition of "adopted" shows that when any of the three conditions is found to be lacking, the application must be rejected:
[4] Thus, Gurnek is the son of the applicant for purposes of the Regulations only if three conditions are met.
[5] The first condition is met if Gurnek was adopted by the applicant in accordance with the laws of India. The tribunal did not comment on this condition and I take it to be undisputed that this condition was met.
[6] The second condition is met if the adoption created a genuine relationship of parent and child between the applicant and Gurnek. The tribunal found that this condition was not met. The reasons for that conclusion are discussed below.
[7] The third condition is met if Gurnek was not adopted for the purpose of gaining admission to Canada for himself or any of his relatives...
(Emphasis added)
[62] The passage from Rattan, supra, states that one must examine the evidence to determine that the parties to a marriage do not intend to live together. The same reasoning applies to adoptions of convenience, because it is unlikely that parties involved in an adoption of convenience will admit to it.
8. Evaluation of the Genuineness of the Relationship
a. Contradictory Finding
Applicant's Submissions
[63] The applicant submits that the Appeal Division contradicted itself by denying the appeal after finding that the adoption was genuine. The applicant cites several passages to demonstrate that a genuine parent/child relationship existed. At page 5 of the decision, the Board states "I am satisfied that Mrs. Zhao wants genuinely to have her own child, and Mr. Zhou [sic] is happy to agree." At page 6 of the decision the member states "I find there is credible evidence to prove that the Appellant and Mrs. Zhao wanted to bring a child into their home to create a second family." At page 28 of the transcript of the hearing, the Board member states "I don't in fact have difficulty with the motivations in this case." Finally, at page 30 of the transcript she states "I am satisfied that the motivations are genuine...".
Minister's Submissions
[64] The Minister submits that the Board did not contradict itself: an adoptive parent may want to have a child in her home, but has not yet created a parent/child relationship with the particular child. There is no inconsistency in finding that the adoption did not create a "genuine relationship of parent and child" despite the fact that Mrs. Zhao genuinely wanted to have a child of her own. The Minister urges that no adoption can ge found to have occurred, because the adoptive "parents" had not created a parent-child relationship with Qi When Zhao despite Mrs, Zhao's saying she wanted a child in her home. That is hardly enough. The Immigration Appeal Division, after all, held that Mrs. Zhao genuinely wants to have her own child but in the circumstances found no genuine parent-child relationship, and correctly so. There is no inherent contradiction.
Analysis
[65] That Mrs. Zhao wanted a child is insufficient to meet the statutory test of a genuine relationship. That she wanted a child in her home concerns her motivation to enter into an adoption, but it does not establish that a genuine relationship existed.
b. Severing Parental Ties
[66] The Board stated at page 4 of the decision:
4. The adoptee's relationship with natural parents is irrelevant
That the adopted child continues to have a relationship with the natural parents should not preclude the finding of a genuine relationship of parent and child with the adoptive parents, argues Appellant's counsel. I agree with this proposition, but qualify that by stating it is the nature of the continued relationship with the natural parents that may be significant in the determination of the bona fides of the adoption. I am of the opinion that the child's relationship with the natural parents is but one factor to consider. That an adopted child would continue to love his/her natural parents is not, in my view, a barrier to finding that a genuine relationship of parent and child exists between adoptive parent and child. However, if the adopted child continues to consider the natural parents as the parental figure and authority, and fails to recognize or has not entered into the new relationship with the adoptive parents, that may be considered adverse to a finding of the existence of a parent and child relationship.
(Emphasis added)
[67] And at page 6:
Beyond the question of the purpose of the adoption is the issue of whether the evidence proves on a balance of probabilities that the adoption creates a genuine relationship of parent and child. I find that the evidence proves, on a balance of probabilities, that such a relationship has not been created. The child's name was not changed, nor was the fact of the adoption generally known outside the Applicant's natural family because, according to the testimony of the Applicant, people "tended to gossip." I find this explanation unsatisfactory, in particular as there was no indication of how or why such "gossip" would be problematic. I also find that the evidence proves, on a balance of probabilities, that there was no change in the parental authority from the natural to the adoptive parents. I find that the only influence exerted by the Appellant on the natural parents or the Applicant is related to the money provided by him, which is intended to benefit the family as a whole and not the Applicant alone. I note, too, that the Applicant continues to refer to the Appellant and his wife as her "uncle"and "aunt." I find that the evidence proves that the Applicant continues to regard her natural parents as her authority and parental figures. The evidence of the witnesses was that the Applicant would not be considered the child of the Appellant and Mrs. Zhao until the girl arrives in Canada, which is when a parent and child relationship would commence. (Paragraph 7, supra)
(Emphasis added)
Applicant's Submissions
[68] In Cansino v. M.C.I., (January 19, 1996), W94-00057 (I.A.D.), at page 6, a panel of the Board listed indicia to be considered in assessing the existence of a genuine relationship between the adopted parents and child:
(a) the motivation and intentions of the parties to the adoption;
(b) the history of the adoption and the parties to it;
(c) the nature of the pre-adoption and post-adoption relationships between the child and the adoptive and natural parents;
(d) the transfer of authority and responsibility over the adopted child between the adoptive and natural parents;
(e) the arrangements made by the adoptive and natural parents to give effect to the adoption.
The panel notes that assessment of the indicia of a genuine relationship of parent and child will, of necessity, be contextual. Cultural, social, economic, religious and practical considerations will affect each adoptive family differently. Great care must be taken in addressing and weighing them.
[69] The applicant submits that under Canadian law the relationship before and after the adoption between the child and her natural parents is irrelevant. The applicant also submits that transferring authority from the natural parents to the adoptive parents is irrelevant. The applicant submits that it is possible for both sets of parents to have a genuine parent/child relationship with the adopted child. The existence of a parent/child relationship with the natural parents should not preclude the existence of a parent/child relationship with the adoptive parents. Parliament did not intend to encourage severing the child's relationship with her natural parents before arriving in Canada.
Minister's Submissions
[70] The Minister submits that the Appeal Division specifically acknowledged that the natural parents could continue to have a relationship with the child after the adoption, and that it stated quite clearly that an adopted child could continue to love her natural parents without that becoming a barrier to finding that a genuine relationship of parent-and-child exists between adoptive parent and the child. Obviously, the Board did not require that the natural parents sever their ties with the child. Rather, it was the existence of authority in one relationship, and the absence of it in the other which the Board considered to be relevant.
[71] The Minister submits assessing the child's post-adoption relationship with her natural parents helps to evaluate her relationship with her adoptive parents. Moreover, the Minister submits that the Board did not expect a perfect relationship between the adoptive parents and the child in evaluating the bona fides of this adoption; it was one factor among many.
Analysis
[72] The RIAS states that the relationship between the adoptive parent and child would normally preclude the child from sponsoring the natural parents upon arrival. Therefore, in evaluating whether an adopted child might sponsor her natural parents, the relationship between that child and her natural parents after the adoption is relevant to the statutory test.
[73] Moreover, many factors must be considered when evaluating the genuineness of the adoption, only one of which is the nature of the relationship with the child's natural parents. It is a very subjective analysis. In L. Waldman, Immigration Law and Practice, looseleaf (Markham, Ont.: Butterworths, 1992), the author states at 10.145.24:
The second issue that will arise in cases involving adoption is whether or not a genuine parent-child relationship has been created, and whether or not the adoption was entered into for the purpose of facilitating the admission to Canada of the applicant. This is clearly a very subjective question. When considering the genuineness of an adoption, the Appeal Division will look at all of the evidence before it to determine whether or not a genuine parent child relationship has been created. Evidence of the ties between the adoptive parents and the child, communication between the adoptive parents and the child, financial support between the adoptive patents and child, and control exercised by the adoptive parents over the life of the child will be considered by the Board. An explanation of why the adoption was entered into is also a relevant consideration. None of these factors is determinative, and the Board will consider all of the factors in order to determine whether of not a parent-child relationship has been created.
(Emphasis added)
[74] In De Guzman v. M.C.I. (1996), 33 Imm. L.R. (2d) 28 (I.A.D.), a panel of the Board stated at page 32:
The question then is, what constitutes a genuine relationship of parent and child? Or more appropriately, what are the factors that could be considered in assessing the genuineness of a parent-child relationship in respect of an adoption within the meaning of the Immigration Regulations, 1978?
The answer to such a question may appear to be intuitive, however, upon reflection, like all considerations involving human conditions, the answer is inherently complex. Nonetheless, guidance may be found in the commonly accepted premise that generally parents act in the best interest of their children.
With this in mind, the panel identified some of the factors that may assist in assessing a relationship of parent and child. These are:
(a) motivation of the adopting parent(s) and;
(b) to a lesser extent, the motivation and conditions of the natural parent(s);
(c) authority and suasion of the adopting parent(s) over the adopted child;
(d) supplanting of the authority of the natural parent(s) by that of the adoptive parent(s);
(e) relationship of the adopted child with the natural parent(s) after adoption;
(f) treatment of the adopted child versus natural children by the adopting parent(s);
(g) relationship between the adopted child and adopting parent(s) before the adoption;
(h) changes flowing from the new status of the adopted child such as records, entitlements, etc., including documentary acknowledgment that the adopted child is the son or daughter of the adoptive parents; and
(i) arrangements and actions taken by the adoptive parent(s) as it relates to caring, providing and planning for the adopted child.
This list of factors is not exhaustive. Some factors may not be applicable to facts of a particular case while others not included in this list may be relevant.
(Emphasis added)
[75] Finally, in Pabla v. M.C.I., IMM-1210-00, December 12, 2000; [2000] F.C.J. No. 2054 (QL), Mr. Justice Blais stated at page 12:
2. Was the Board's assessment of the parent-child relationship reasonable?
[25] The Board concluded that there was no genuine parent-child relationship based on the following facts:
(a) The inconsistency in the testimony between the applicant and his wife as to when the child came to live with the applicant's wife;
(b) Three different dates were given by the applicant, his wife, and the child's natural father as to when the child went to live with the applicant's wife;
(c) The child's permanent residence application indicated that she lived with her natural parents until the age of nine;
(d) The applicant did not attend the adoption ceremony, with no credible explanation;
(e) The applicant's wife has not visited the child since 1994;
(f) The applicant did not exercise parental control over the child.
[26] Nevertheless, in my view, the Board failed to consider many other facts that were not contradicted and showed that a genuine parent-child relationship existed between the members of the family.
[27] I concur with counsel for the applicant that in reaching the conclusion that the adoption did not create a parent-child relationship, the Tribunal ignored the evidence that:
- The child has cut off virtually all contact with its natural parents and had since the adoption lived with the power of attorney of the Applicant. Given this it is doubtful that the child could have maintained a relationship with her parents and as such if the Applicant is not to be considered the parent the child would be left with no parent. This result is of course absurd.
- The Applicant testified that he has supported the child financially since the adoption.
- The Applicant testified in addition that he sent gifts to India.
- The Applicant further testified that he visited twice yearly and stayed with the children during his visits. This is highly unusual and indicates a strong interest on the part of the applicant to maintain a close relationship with the child despite the distance.
- The Applicant testified that, while he was in India, he spent the entire time with his child.
- He testified that his wife maintained contact with the child after the marriage and that the child lived with the applicant's wife during the first years of her life so that a close relationship was established.
- He testified that the natural parents have not assisted in the financial support for the children [sic] since the adoption.
- The documentary evidence included proof of numerous phone calls to the children [sic] consistent with his evidence on this point together with affidavits attesting to the genuineness of the relationship.
(Emphasis added)
[76] This review demonstrates that the relationship between the natural parents and the child after adoption is often relevant, although it is not determinative. In the case at bar, the Board reviewed the following facts:
a. Mrs. Zhao genuinely wanted to have her own child;
b. The child's name had not been changed;
c. The adoption was not generally known outside the child's natural family;
d. There was no change in the parental authority from the natural to the adoptive parents;
e. The only influence exerted by the applicant on the natural parents or on the child was sending money to the entire family;
f. The child continued to refer to her adoptive parents as "aunt" and "uncle" after the adoption;
g. The child continued to regard her natural parents as her authority and parental figures; and
h. The child would not be considered the child of the adoptive parents until she arrived in Canada, which was when a parent/child relationship would commence.
[77] This Court accepts that in evaluating the relationship with the natural parents, and in examining the transfer of authority between them and the adoptive parents, the Board did not take into account irrelevant considerations. In oral arguments, counsel for the applicant conceded that the transfer of parental authority is an indicator of the genuineness of the relationship, as evinced at page 101 of the transcript.
c. Separation of the Child and Adoptive Parents as an Impediment to the Relationship
[78] The Board stated the following at page 3 of the decision:
Counsel asserts that lack of funds to travel to the homeland of an adoptive child should not provide a barrier to finding that a genuine relationship exists. I agree. It is not the lack of funds to travel or the geographic separation that may result in such a finding, but rather the lack of activity or involvement in the child's life in a way that is consistent with the adoptive parents in Canada assuming a parental responsibility for the child. If counsel's assertion were true, there would be no need for consideration of any factor other than whether the adoptive parents traveled to see their adoptive child in his/her homeland. In this case, the lack of funds to travel to China, or even the geographic separation between adoptive parents and adoptee do not determine the outcome. In this case, a wide range of factors was considered, as Appeal Division jurisprudence outlines.
3. The parent and child relationship is prospective, commencing with the child's arrival in Canada
Counsel submits that the existence of a relationship should not be examined until the child arrives in Canada. This means necessarily that there would be no examination, as the child will not arrive in Canada until found to be a member of the family class, and has been given a visa to enter Canada. This is inconsistent with the dicta of the Federal Court in Sharma and Edrada, as well as with the intention of Parliament which included a requirement for consideration of the relationship prior to the adoptee being issued a visa in accordance with the Regulations.
(Emphasis added)
Applicant's Submissions
[79] The applicant submits that the Board cannot assess the genuineness of the relationship between the adoptive parents and the child while they are separated; it is impossible for them to have a relationship while they are kept apart by the Minister. Moreover, distance and the lack of money may interfere with the development of the relationship until the child arrives in Canada.
[80] The applicant submits that Canadian law is concerned only with the nature of the relationship after the child arrives in Canada, and that the relationship after the adoption but before the child immigrates to Canada is irrelevant. The applicant submits that the proper test is whether the relationship is so inchoate as to be non-existent as discussed in Roy v. M.C.I., I.A.D., W99-00071, September 7, 2000, at page 4:
[9] In this case, the appellant has consistently provided Lady Roxanne with financial support. That the appellant also supports other relatives does not diminish her support for Lady Roxanne. The evidence is that other relatives do not receive the same amount of money or with the same regularity as Lady Roxanne. The extended family system should not be used to negate a genuine adoption. Concerning ongoing communications, the panel notes that Lady Roxanne speaks Tagalog and cannot communicate with Kathleen or Daddy Roy in English. Her natural parents do not have a phone and have to travel outside their town to make phone calls. The mail system is not reliable in terms of the time it takes to deliver letters. Under the circumstances, the proof of contact, while not impressive, does not detract from the parent and child relationship established. The panel finds that the Roy family has consistently sought the welfare of Lady Roxanne and considered her to be part of the family. The appellant has taken care of her needs. She knows the size of her clothing and keeps abreast of her educational progress through the natural mother. Kathleen played with Lady Roxanne during her visit to the Philippines and looks forward to having a younger sister. Mr. Roy contemplated Lady Roxanne learning his native language, French. The whole family has planned for her arrival. The future plans of the family are relevant not because the test is prospective, but because the parent and child relationship is not static and the future plans impact on the genuineness of the adoption. Thus, though the parent and child relationship may in some respects be inchoate or not fully formed it is not so inchoate as to be non-existent.
(Emphasis added)
Minister's Submissions
[81] The Minister submits that the existence of a genuine parent/child relationship is a question of fact for the Board to decide. Each piece of evidence must be evaluated within the context of the whole of the evidence. After considering all of the relevant evidence, the Board held that there was a lack of development of a parent/child relationship, even considering the geographic separation. Moreover, the Board considered all of the factors raised by the applicant.
Analysis
[82] In L. Waldman, Immigration Law and Practice, supra, the author states the following at 10.145.25:
There is as yet no jurisprudence in the Federal Court which assists in establishing the parameters for a genuine relationship of parent and child. It is submitted, however, that the visa officer and the Board, on appeal, ought to consider whether or not the adoptive parents have established clear emotional links with the adopted child and have demonstrated genuine love and concern. However, the evaluation of the evidence must be done within the context of the reality that the adoptive child has not been able to be reunited with his adoptive parents because of the requirements of the Immigration Act that the child apply for and obtain an immigrant visa before coming to Canada. The distances that separate the adoptive parents from their child are so often such that it makes it extremely difficult to create a close bond prior to the child's arrival in Canada. In some circumstances, notwithstanding the fact that an adoption has taken place, the adoptive parents will determine that it is in the best interest of the child to leave the child with the natural parents. Immigration Regulations preclude the adoptive parents from bringing the child to Canada. The adoptive parents, when considering the best interests of the child, may opt to leave the child with the natural parents in circumstances where there is no other more viable alternative. This fact in and of itself ought not to be determinative of the question of whether of not a genuine parent-child relationship has been created.
(Emphasis added)
[83] The separation of the child from the adoptive parents was also a factor in Jeerh, supra, where Sharlow J. stated at page 317:
[13] In the circumstances of this case, it was inevitable that there would be a separation between the applicant and Gurnek that was long in distance. It has also become long in duration, in part because of the time required by the sponsorship proceedings and this application. It cannot be surprising that the applicant is not as familiar with Gurnek and his every day life as he would be if they were living together. The tribunal itself drew inferences about Gurnek's scholastic achievements that cannot be justified without evidence of the significance of the marks assigned to him.
[14] When the evidence of the applicant is reviewed in its totality in light of the circumstances, nothing that he said is logically inconsistent with the conclusion that the relationship between the applicant and Gurnek is a genuine relationship of parent and child. In the absence of any indication as to the tribunal's view of the remainder of the evidence, I cannot conclude that its decision was reasonably open to it.
...
[29] After reviewing carefully the decision of the Board in light of Justice Sharlow's decision, I am convinced that the Board in failing to consider the context, the distance and the separation, and particularly the way the applicant made efforts to create and sustain the parent-child relationship, made a reviewable error.
[84] As with the issue of severing family ties, the separation between the adopted child and the adoptive parent is one of many factors which must be considered. The Court is satisfied that the Board evaluated all of the facts to conclude that the relationship was not genuine, as there was little to no contact between the adoptive parents during the life of the child. The cases which were reviewed indicate far more effort by applicants than was evinced here. Moreover, the Court notes that nobody inquired about the status of Qi Wen Zhao's application during the three years that it was withdrawn, demonstrating little effort by both sets of parents to move this adoption forward.
9. Best Interests of the Child
[85] The Board stated the following at page 4 of the decision:
5. The "best interests" of the child is the primary consideration
Counsel submits that the Baker case, read together with the Convention on the Rights of the Child prescribes that the "best interests" of the child must be a paramount consideration in all actions, including when interpreting "adopted." He proposes no support for this argument, other than the existence of the two authorities he references. Counsel has provided no analysis or possible application of his assertion. I am not persuaded by this position. He has not established that the principles established in Baker apply to the sponsorship of a foreign resident child. Even if I were to consider the application of this principle, there is no evidence in this case, beyond counsel's speculation, which proves what is in the "best interests" of the Applicant.
(Emphasis added)
Applicant's Submissions
[86] The applicant submits that when adoption is concerned, the best interests of the child must be the primary consideration. The Supreme Court of Canada stated in Baker v. M.C.I. [1999] 2 S.C.R. 817 at 861:
[70] Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. As stated in R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330:
[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred.
[87] Article 3 of the United Nations Convention on the Rights of the Child , Can. T.S. 1992 states:
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
[88] The applicant submits that obliging the natural parents to sever their relationship with their child is not in the best interests of children. Severing ties to the child leads the natural parents to give up the responsibility before the adoptive parents can assume responsibility for the child in Canada. To comply with Canadian immigration requirements, children are often put into the care of friends, relatives, or strangers by power of attorney. This abandonment continues during the immigration process, and these children become effectively orphaned if the application is unsuccessful. Therefore, the applicant submits that it is in the best interests of adopted children to encourage their natural parents to keep caring for them until they arrive in Canada.
[89] The Board member held that there was no evidence of what was in the best interests of this child. The applicant submits what is in the best interests of this child is a conclusion which should be drawn from the evidence.
Minister's Submissions
[90] The Minister submits that the Board never considered that severing the parental ties to the child was required to evaluate the genuineness of the relationship between the child and the adoptive parents. The text of article 3(1) of the U.N. Convention on the Rights of the Child quoted in Baker and at paragraph 59 (p. 74) of applicant's memorandum of argument, was indeed considered by the respondent despite the applicant's assertion to the contrary: Board's decision p.4, heading 5., applicant's record p.50.
[91] The Minister submits that Baker, supra, does not apply to the case at bar in the manner which is urged by the applicant. The Supreme Court of Canada affirmed that international instruments, although signed and ratified by Canada, have no direct application within Canadian law. Those international instruments may help to inform the contextual approach to statutory interpretation. Moreover, the decision in Baker was discretionary, and the Court used international instruments to inform its opinion regarding a "humanitarian and compassionate" application. Here, the determination that an "adopted" child is the member of the family class is not discretionary because it involves the application of a statutory test. Consequently, Baker, supra, does not apply to the determination of adoption sponsorships in the manner urged by the applicant.
Analysis
[92] The applicant did not present any facts to the Board or to this Court to support this argument. The Court disagrees that the best interests of this child reside in a conclusion which should be drawn from the evidence without proof or submissions by the applicant. The applicant submits that there are many deleterious effects which arise from the application of the genuineness requirement, such as "creating orphans". However, the applicant has not presented evidence to this effect, other than his counsel's assertions that this happens all of the time in his practice. Qi Wen Zhao was not at the risk which is described here. In fact, she remained with her natural parents, and it cannot be said that remaining with her natural parents was not in her best interests. The Board never required the natural parents to sever their ties, and examined the entire record before it. The Court cannot speculate about the effects of the legislation without evidence before it, except to say that parents who place their children in the care of strangers to facilitate their admission to Canada epitomize the definition of an adoption of convenience.
10. Conclusion
[93] The Appeal Division made a correct disposition of this case. The respondent's arguments are ratified. This application will be dismissed.
11. Questions for Certification
[94] The applicant has asked that the following questions be certified:
1. Can the Appeal Division of the Immigration and Refugee Board decline to address submissions on errors of law made by an appellant in an appeal under subsection 77(3) of the Immigration Act on the basis that an appeal is a hearing de novo?
2. Can an adoption be considered for the purpose of immigration under Immigration Regulation 2(1) where there is a dual motivation for the adoption and only one of those motivations is an immigration purpose? Can a visa office refuse an immigration application of an adopted child on the basis that the adoption was entered into for the purpose of immigration if the adoption creates a genuine relationship of parent and child?
3. Is the relationship of an adopted child to the natural parents legally relevant to the interpretation and application of "adopted" in Immigration regulation 2(1)?
4. Can evidence that a fully-formed parent/child relationship would commence after the arrival of the child in Canada legally ever be adverse to the child and the adopted parents in a determination of whether the child is "adopted" within Immigration Regulation 2 (1).
5. Is the principle in Baker, that interpretations of a statute which reflect the values of customary international law and treaty law binding on Canada are to be preferred, inapplicable to non-discretionary decisions or to the sponsorship of foreign resident children?
The Court declines to certify all of these questions. In this Court's opinion the first, second and fourth questions posed by the applicant's counsel do not merit certification and this Court agrees with the respondent on that. The respondent would not have seen any of these questions certified, but with reluctance the Court will certify the third and fifth questions.
Judge
Ottawa, Ontario
August 30 , 2001