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