| The Canadian government has passed a new | | | | overseas? |
| citizenship law that resolves a variety of issues about | | | | A That child, your grandchild, will not acquire Canadian |
| Canadian citizenship (Bill C-37). Buried in that law is a | | | | citizenship. He or she may be eligible to be sponsored |
| provision that has passed unnoticed, until now, which | | | | as a permanent resident, and then apply for |
| puts limitations on the Canadian citizenship rights of | | | | citizenship as soon as he or she becomes a |
| some internationally adopted children. Recent articles | | | | permanent resident. |
| in the National Post, the Globe & Mail and the | | | | Q5. How does it work for subsequent generations? |
| Ottawa Citizen have brought these provisions to the | | | | Do they have Class A or Class B Canadian citizenship? |
| attention of the adoption community. | | | | A Generational Chart Showing Whether Descendants |
| Although this new law will come into effect on April | | | | have Class A or B Canadian Citizenship Rights: |
| 17, 2009, I hope it is not too late for adopting | | | | Parents Child |
| parents to express their views (read Comments | | | | First |
| from adopting parents so far. Also read Complex | | | | Generation (Adopting Parents) |
| Citizenship Laws Anger Adopting Parents). The | | | | Second |
| provisions of the new law are complex, so I have | | | | Generation |
| set out a series of questions and answers at the end | | | | (your adopted child) |
| of this article, which I hope will clarify the finer points | | | | If this child receives Canadian Citizenship overseas |
| of the new rules. | | | | under the 2007 law, he/she will have Class B |
| A good way to begin understanding the issues is to | | | | Canadian Citizenship |
| read the newspaper articles "Critics Fear Two-Tier | | | | Third |
| Citizenship" and "Citizenship Changes Could Create | | | | Generation |
| Inferior Citizens". For the perspective of Robin Hilborn | | | | (your grandchild) |
| of Family Helper, see "Canadian law denies citizenship | | | | If the child of the adopted child above is born outside |
| to children of foreign adoptees" | | | | of Canada, he/she will not be entitled to automatic |
| Essentially the legislation provides that the children of | | | | Canadian Citizenship. The child may apply to enter |
| some internationally adopted children will not have a | | | | Canada on a Permanent Resident Visa. If he/she |
| right to Canadian citizenship. In practice, this is likely | | | | subsequently obtains Canadian Citizenship, then it will |
| to affect only a small proportion of all adopted | | | | be a Class A Citizenship. |
| children. What upsets adopting parents, however, is | | | | Fourth Generation |
| the notion that their children will have a lesser class | | | | (your great-grandchild) |
| of citizenship. In effect, the children are being | | | | The child of this Class A citizen parent, if born inside |
| discriminated against. Adopting parents do not want | | | | Canada, (the Adoptive Parents' great-grandchild) will |
| to feel that their children are second-class citizens. | | | | have Class A Citizenship. |
| Adopting parents in Canada are losing their tolerance | | | | Q6. Can I do anything to avoid this new law if I am |
| for being discriminated against. Resentment at the | | | | going to adopt a child in the future? |
| inherent discrimination against adopting families built | | | | A Yes you can. Do not use the new direct citizenship |
| into the EI legislation has been simmering for the past | | | | route for children adopted overseas. Only use the old |
| decade (for a detailed description of the | | | | route of applying for a permanent resident visa for |
| discrimination which adopting parents feel about this | | | | the child, and after the child is landed in Canada apply |
| subject, see our earlier Spotlight, "Adoption in the | | | | for Canadian citizenship. This child will have a Class A |
| Workplace"). Now a new law that discriminates | | | | Canadian citizenship. |
| against their children is going to have a galvanizing | | | | Adopting parents report that they are consistently |
| effect on the adoption community. | | | | advised by Canada Immigration officials to use the |
| The Annual Report to Parliament on Immigration, | | | | new direct citizenship route. Anyone considering |
| 2008, begins with the following words: | | | | which route to follow should read our previous |
| "The Citizenship Act, under which CIC grants | | | | Spotlight - Citizenship for Adopted Children: Canada's |
| citizenship to eligible newcomers, affirms that all | | | | New Law for 2008. In addition, adopting parents |
| Canadians have the same rights, privileges and | | | | should obviously think about whether they wish their |
| responsibilities whether they are citizens by birth or | | | | children to have Class B Canadian citizenship, and |
| naturalization." | | | | what effect that might have on their grandchildren. |
| That will change as of April 17, 2009. In an attempt | | | | Q7. Does the new law contravene the Charter of |
| to solve the problem of Canadian citizenship being | | | | Rights? |
| handed down generationally to people who don't | | | | A I don't know. The government has not invoked |
| actually live in Canada, the government has reduced | | | | the "Notwithstanding Clause" under the Constitution |
| the citizenship rights of some internationally adopted | | | | of Canada, so the Charter does apply to this |
| children, and effectively created a lesser class of | | | | legislation. In the 1998 McKenna case, the Canadian |
| citizenship for them. Was this really necessary? It | | | | Human Rights Code was used to say that it was |
| feels like a sledgehammer was used to kill a flea. | | | | discriminatory to adopted children not to be able to |
| Could not a more elegant solution have been found | | | | obtain citizenship overseas. It was this case that 10 |
| to actually deal with the perceived problem? | | | | years later finally led to the new citizenship law of |
| The Report of the Senate Standing Committee, | | | | 2007 permitting just that. On the other hand, |
| which reviewed Bill C-37, states: | | | | adopting parents were not successful in invoking the |
| "Such a distinction would grant citizenship to a first | | | | Charter of Rights to overturn the inherent |
| generation born outside Canada while denying it to | | | | discrimination in the EI legislation in the 1997 Schafer |
| their children and subsequent generations were they | | | | case. It does seem likely that eventually someone will |
| to be born abroad. Such a provision strikes your | | | | challenge this notion of Class B citizenship for |
| Committee as arbitrary and unfair." | | | | adopted children under the Charter of Rights. A |
| The Committee also added: "Rather, the Committee | | | | Charter challenge could also come based on |
| urges the government to ensure that all aspects of | | | | discrimination against persons born abroad to |
| new citizenship legislation are Charter-compliant and | | | | Canadian citizen parents. |
| consistent with Canadian values". | | | | Q8. Are the new rules retroactive? |
| As a result of concerns by the Immigration | | | | A Section 3 (4) of the Citizenship Act states: |
| Department about the confusion surrounding the new | | | | "Subsection (3) does not apply to a person who, on |
| law, it recently issued a clarification. | | | | the coming into force of that subsection, is a citizen." |
| In a published response to the concerns of adopting | | | | What does this clause mean? It means that if you |
| parents, the Minister states: | | | | are a citizen on the day the new law comes into |
| "Critics have entirely missed the point of how | | | | force, then you will not lose your citizenship. |
| changes to our citizenship law, which come into | | | | Unfortunately, the Immigration Department is |
| effect on April 17, 2009, will protect the value of | | | | interpreting this to mean that a person will not lose |
| citizenship." | | | | their Canadian citizenship, but the new provisions will |
| I don't think that is true. Adopting parents probably | | | | change the quality of your citizenship. |
| do understand the concerns that the government | | | | So, for the adoption world, the law will be retroactive |
| has about protecting the integrity of Canadian | | | | and will have the following two results: |
| citizenship. It is the specific solution, which the | | | | (a) Children who have been adopted and obtained |
| government has come up with that they are | | | | their Canadian citizenship overseas since December |
| protesting. | | | | 23, 2007 will have their Canadian citizenship |
| It is an insult to adopting parents to say that their | | | | downgraded from Class A to Class B on April 17, |
| children now have a lesser class of Canadian | | | | 2009. This will come as an unhappy surprise to |
| citizenship. The government needs to rethink these | | | | Canadian adopting parents, who have pursued the |
| provisions and find a solution that does not put | | | | direct citizenship route as a result of non-stop |
| limitations on the rights of citizenship for | | | | directions from Canada Immigration officials to |
| internationally adopted children. The government | | | | adopting parents to take the new route; and |
| should find a solution which fits the actual problem. | | | | (b) Adopting parents who were born outside of |
| This article is a call to action for adopting parents. | | | | Canada. Any adopting parents in this category will |
| Adopting parents who wish to make their views | | | | have their citizenship changed from Class A to Class |
| known to the government should do so immediately. | | | | B on April 17, 2009. As a result, when they adopt |
| Prior to doing so, however, please read the questions | | | | overseas, their children are not entitled to direct |
| and answers set out below. The law is quite technical | | | | Canadian citizenship. Their only route will be to |
| and there is already confusion about who the law | | | | sponsor the child as a landed immigrant, obtain a |
| would apply to. This is not helped by the | | | | permanent resident visa, and subsequently apply for |
| government's own website, which is not clear. If, | | | | Canadian citizenship. |
| after reading the article and the new rules, additional | | | | A CIC official has verbally confirmed that these |
| questions arise that should be asked in the list below, | | | | provisions are retroactive. We have requested that |
| please send them to me and I will add them to the | | | | the government confirm to us, in writing, that the |
| article. | | | | law is not retroactive. We will update this section |
| For the purposes of this article, I will use the terms | | | | when we receive the government's written answer. |
| Class A citizenship to refer to full-rights citizenship and | | | | Q9. Does this new law only apply to adopted |
| Class B to refer to the new, lesser-rights citizenship. | | | | children? |
| Q1. Who does the new law apply to? | | | | A No, in addition to adopted children, the new rules |
| A. The new law applies to adopted children who | | | | apply to children born outside of Canada, unless their |
| receive their citizenship abroad, pursuant to the new | | | | parent(s) fit within a specific definition. In addition, Bill |
| direct citizenship provisions enacted in Canada on | | | | C-37 (the new law) also deals with many other |
| December 23, 2007. [See also Q10 below] | | | | citizenship issues unrelated to adoption. |
| Q2.Who is not subject to the new rules? | | | | Q10. If I am adopting parent who was born abroad |
| A. The new rules do not apply to the following: | | | | to Canadian parents, can I adopt overseas? |
| (a) adopted children born in Canada; | | | | A You can adopt, but if you are single you will not be |
| (b) Internationally adopted children who come to | | | | able to use the direct citizenship route. Your child will |
| Canada on a permanent resident visa and | | | | have to be admitted to Canada with a PR Visa. The |
| subsequently obtained Canadian citizenship after their | | | | reason for this is that the new law applies to children |
| arrival in Canada. Up until now this has been the | | | | of Canadians born to Canadians overseas, as well as |
| situation of most (but not all) children adopted | | | | to those adopted overseas. However, if you are |
| overseas and brought to Canada. They will not be | | | | married to a Class A Canadian citizen, then you will be |
| affected by the new rule, despite what it says on | | | | able to use the direct citizenship route. |
| the Canada Immigration website. | | | | Q11. Is there any "patch" that the government could |
| The web posting "New Citizenship Rules" states: | | | | use to repair this law? |
| "This limitation will also apply to foreign-born individuals | | | | A The application of the new law should be |
| adopted by a Canadian parent. The adopted children | | | | suspended until the adoption community has a real |
| of Canadian citizens will be considered to be the first | | | | chance to have input, and perhaps a better solution is |
| generation born abroad. This means that: | | | | found. One suggestion being proposed would provide |
| If a person born outside Canada and adopted by a | | | | an exception to the new law if the adopted child |
| Canadian parent has a child outside Canada, that child | | | | lived in Canada for a certain unspecified period of |
| will not be a citizen by birth;........" | | | | time. In other words, the child would start with Class |
| This information is misleading. In a clarifying email | | | | B Canadian citizenship, and if the child eventually |
| from the Ministry of Citizenship & Immigration | | | | qualified by living in Canada for a certain period of |
| (which doesn't seem to be posted anywhere at the | | | | time, they would graduate to Class A Canadian |
| moment), an official makes it clear that the restriction | | | | citizenship. Whether this would be a satisfactory |
| on obtaining Canadian citizenship only applies to | | | | solution for Canadian adopting parents remains to be |
| situations described in the above quote and where | | | | seen. |
| the parent of the child born outside of Canada | | | | Note: These concerns are not limited to children |
| originally was granted Canadian citizenship overseas | | | | adopted abroad, but also apply to children born |
| pursuant to the new 2007 direct to citizenship route. | | | | abroad. The implications of this law are likely to be |
| This misstatement on the government website has | | | | seen more immediately for born-abroad Class B |
| caused some parents to believe that the new law will | | | | citizens than adopted-abroad Class B citizens. |
| apply to their children, when in fact it will not. | | | | Q12. Why was the adoption community in Canada |
| (c) The new law will not apply to children who would | | | | not consulted before this law was brought into |
| normally fall into the Class B citizenship definition, but | | | | force? |
| whose parent is working overseas with the Canadian | | | | A The adoption community in Canada was unaware |
| government (Federal or Provincial) or serving | | | | of these new rules until articles appeared in the press |
| overseas in the armed forces. Instead, these children | | | | in mid-January, 2009. How did this happen? - Bill C-37 |
| will have Class A citizenship. However, children whose | | | | received royal assent on April 17, 2008. It comes into |
| parents are working for Canadian corporations, the | | | | force on the first anniversary of that date, April 17, |
| United Nations, who are on vacation, or who are | | | | 2009. For over a year preceding the passing of the |
| otherwise travelling outside of Canada do not get this | | | | new law, the government consulted with various |
| exemption and will have Class B citizenship. This is a | | | | interest groups who could be affected by changes to |
| distinction which is hard to justify. If you work for | | | | the Citizenship Act. It does not appear to have been |
| one kind of employer your children are Class A | | | | made clear, however, that a Class B citizenship would |
| citizens, and if you work for a different kind of | | | | be created for children adopted overseas. On |
| employer your children are Class B citizens. Surely | | | | December 13, 2008, the regulations under this new |
| there is a better way to sort this out. | | | | Act were published in the Canada Gazette, and |
| Q3. What is the most serious consequence of this | | | | provided for a 30-day comment period. |
| new law? | | | | Unfortunately, this comment period extended over |
| A The most serious consequence that is evident at | | | | the Christmas and New Year's vacation and expired |
| this time is that a child born overseas to an adopted | | | | in early January. Buried in the comment attached to |
| person has a reasonable chance of being a "stateless | | | | the Canada Gazette was the statement , "The |
| individual" (this would be the adopting parents' | | | | aforementioned limitation will also apply to |
| grandchild). This leads to a number of questions: | | | | foreign-born persons adopted by a Canadian parent". |
| (a) Why would this happen? - Only some countries | | | | It was only when these proposed regulations were |
| grant citizenship to a child born in their country | | | | published that one person noticed this and has been |
| (Canada and the USA being examples of countries | | | | raising an alarm for the past few weeks. |
| that do that). Many countries rely on the citizenship | | | | Surely, if the Government of Canada was going to |
| of the child's parents or some other criteria. The child | | | | do something as dramatic as create Class B |
| would be born stateless if they did not derive a | | | | citizenship rules for adopted children in this country, it |
| citizenship through either parent and they are also | | | | is incumbent on them to really bring this to the |
| born in a country where birth on soil does not give | | | | attention of adopting parents, the Adoptive Families |
| access to citizenship. As a stateless person, the child | | | | Association, the Provincial Adoption Bureaus, |
| would have no obvious way to come to Canada. | | | | Adoption Agencies across Canada, and the Adoption |
| (b) Is there a remedy? - A child of a Canadian who | | | | Council of Canada. It is incredibly dismissive of the |
| was born stateless abroad would have the option of | | | | adoption community to have been treated in this |
| applying for a grant of citizenship on the basis of | | | | manner by the government. |
| statelessness. The amended Citizenship Act has | | | | Q13. What can I do to stop this new law? |
| provisions for granting citizenship to stateless children | | | | A Perhaps nothing. The new law (Bill C-37) has been |
| of Canadian citizens, but the child must first live in | | | | passed, given Royal assent, and the regulations under |
| Canada for three years. This stateless child would | | | | it are in force. Some parents are currently considering |
| have neither a passport nor a right to enter Canada, | | | | filing a complaint with the Canadian Human Rights |
| so it is not even clear how the child could travel to | | | | Commission. And, of course, someone with deep |
| Canada to establish residence. One can only hope | | | | pockets could take a Charter of Rights challenge to |
| that there will be a benevolent immigration officer | | | | try to have the law declared unconstitutional. On the |
| overseas who has empathy for the predicament that | | | | other hand, perhaps adopting parents in Canada can |
| the Class B Canadian citizen finds himself in, and will | | | | speak out with one voice and object to what has |
| grant the stateless child some sort of visa to come | | | | happened. Adopting parents in Canada represent a |
| to Canada. This event will be 20, 30 or 40 years into | | | | potent political force. To date, this has been largely |
| the future. It is hard to predict what the world will | | | | untapped. It is time that the Canadian adoption |
| look like then in terms of population and pressures on | | | | community make its influence felt. There is no reason |
| the Canadian immigration system. What will | | | | why we cannot have an Adoption Caucus of MPs |
| immigration officers say to a Class B Canadian citizen | | | | and Senators who listen to what's important to the |
| in 30 years who wants to bring their stateless child | | | | adoption community in Canada. The natural focus of |
| back to Canada? Adopting parents today will be the | | | | these efforts could be the Adoption Council of |
| grandparents of that child. We can all hope it's a | | | | Canada, which can harness some of the tremendous |
| sympathetic response. | | | | energy and opinions of adopting parents in this |
| (c) Any born-abroad Canadian adopting parents could | | | | country. Hopefully, this issue of Class B Canadian |
| immediately face the problem outlined in (b) above. | | | | citizenship for some internationally adopted children |
| Again, this is because the provisions of the new law | | | | will provide a focus for adopting parents to work |
| apply to children born outside of Canada as well as to | | | | together. |
| those adopted. | | | | In the meantime, parents who wish to comment on |
| Q4. What happens if my adopted child has Class B | | | | what has happened should contact their Member of |
| Canadian citizenship and gives birth to a child | | | | Parliament and the Adoption Council of Canada. |