Recently a client who was sponsoring her foreign national spouse asked about the possibility of bringing a young, 10 year old niece of the foreign national spouse into Canada as well. Apparently, the young girl’s father had left at birth, the mother was an addict and the niece was being raised by her grandmother.
With permanent residence approval of the foreign national husband imminent, it seemed reasonable to try to bring the niece to Canada after adopting her.
For the Canadian immigration department the issue is whether the niece was adopted for the purposes of immigration or whether there was a genuine genuine parent-child relationship that was already in existence. Although adoptions can legally take place, if the rules of the country are followed, there is no guarantee that Canadian immigration will allow the child to come because immigration may rule that the adoption was done solely for the purpose of assisting immigration. If so, these are what are called adoptions of convenience, similar to marriages of convenience.
An immigration officer is required to determine whether the true nature of a parent-child relationship exists between the adopting parent and the child. In the case of Guzman v. Canada where the issue of adoption of convenience came up, the court stated:
- 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 ……
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.
- (a) motivation of the adopting parent(s) and;
- 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.
Unless there has been a substantial and ongoing relationship between the adoptive parent and the child (provable by hard extrinsic evidence, previous financial support and ongoing communication), immigration will question any adoption done to ensure that the application for residency was not just for the purpose of immigration, regardless of the humanitarian issue justifying the adoption.