Operational Bulletin 183 – February 8, 2010

This section contains policy, procedures and guidance used by IRCC staff. It is posted on the department’s website as a courtesy to stakeholders.

Supplementary policy guidance on assessing the severing of a pre-existing legal parent-child relationship for grants of citizenship under A5.1(1) or A5.1(2)

Background

Adoption under A5.1(1) and A5.1(2) of the Citizenship Act is interpreted as a full adoption that severs the pre-existing legal parent-child relationship. The Citizenship Regulations provide factors for consideration that will assist the decision-maker in determining whether the requirements of the Act have been met. One such factor is whether the pre-existing legal parent-child ties have been permanently severed by the adoption. Specifically, this factor is listed in paragraphs:

Reference to Severance in the Regulations
A5.1(1) Adoptee is minor at the time of application Adoption took place in Canada R5.1(3)(a)(ii)
Adoption took place in Hague Convention country R5.1(3)(b)(iii)
Adoption took place elsewhere R5.1(3)(c)(iii)
Adoptee is over 18 at the time of application Adoption took place in Canada R5.2(3)(a)(ii)
Adoption took place in Hague Convention country R5.2(3)(b)(iii)
Adoption takes place elsewhere R5.2(3)(c)(iii)
A5.1(2) Adoption takes place in Canada R5.3(3)(a)(ii)
Adoption takes place abroad R5.3(3)(b)

Assessing the severing of pre-existing legal parent-child ties serves several purposes:

  • Ensuring that the best interests of the adopted child are respected;
  • Ensuring immigration program integrity by preventing future sponsorship of natural parents; and
  • Ensuring that the adoption is a full adoption (as opposed to a simple adoption or guardianship) that meets the eligibility requirement of A5.1(1) or 5.1(2).

An assessment of the severing of ties will only apply where there are living parents with whom a child has a legal parent-child relationship at the time an adoption takes place. This requirement will not be relevant in cases of orphaned or abandoned children where there is no pre-existing parent-child relationship.

No regulation requiring severance for A5.1(3) cases

There is no requirement in the Regulations for the severance of a pre-existing legal parent-child relationship for grants of citizenship under A5.1(3) (adoptions to the province of Quebec). The requirement for the dissolution of the pre-existing bond of filiation between the child and the child’s family of origin is found in the Quebec Civil Code.

New evidence forwarded to provincial and territorial authorities

If in the course of investigations an officer uncovers evidence that may lead the province or territory (P/T) to reconsider its approval or non-objection to the adoption, this information must be provided to the P/T authorities and processing suspended until the P/T confirms or revises its statement. The Citizenship Act and its regulations do not contain a provision on new evidence similar to subsection 117(8) of the Immigration and Refugee Protection Regulations, but a confirmation or a revision by a P/T authority would be a factor that the citizenship officer should take into account in deciding whether the Act’s requirements have been met.

Severing of the pre-existing legal parent-child relationship as a factor for consideration

An application for a grant of citizenship under section 5.1 of the Citizenship Act can only be refused if it does not meet the requirements of the Act; a final decision should not be based on the assessment of the factors for consideration listed in the Citizenship Regulations. The factors listed in the Regulations are intended to assist in determining whether the requirements of the Act have been met.

As a regulatory factor for consideration, the severing of pre-existing legal parent-child ties should be assessed as an indicator of whether an adoption meets the requirements of the Citizenship Act.

However, it is important to note that only an adoption that is recognized in law as a full adoption, where the adoptive parents have full parental rights, can meet the requirements of subsections 5.1(1) or 5.1(2) of the Citizenship Act. A simple adoption or a guardianship, where pre-existing legal parent-child ties are not fully and permanently severed, does not meet the requirements for the granting of citizenship under the 5.1(1) and 5.1(2) adoption provisions of the Citizenship Act.

Assessing the severing of pre-existing legal parent-child ties

Note: For the purpose of this instruction the term ‘natural parent’ refers to a legal parent with custody prior to the adoption. In rare instances this person may not in fact be a natural parent to the child.

Some foreign adoption laws indicate that an adoption will fully sever the ties with natural parents. However, where foreign adoption laws are unclear as to whether these ties are fully severed by an adoption, officers must determine whether the adoption meets the requirements of the citizenship legislation based on the information available to them.

An example of assessing severance: Inheritance rights

The maintenance of inheritance rights is not generally interpreted as prohibiting a full severing of legal ties for the purpose of the Citizenship Act and Regulations. However, the maintenance of inheritance rights by an adopted child in relation to their natural parents is one of many possible factors that should be considered in determining whether the pre-existing legal parent-child relationship has been severed. The presence of this tie would generally not appear, in and of itself, to be grounds that would allow the adopted child to sponsor the parent in the future under the family class nor have a strong case for a humanitarian and compassionate request for permanent residence under the Immigration and Refugee Protection Act. Inheritance rights should therefore be assessed in the overall context of the specific adoption regime of the country of adoption.

Free and informed parental consent

It is particularly important in foreign jurisdictions where adoption law lacks clarity about the full and permanent severing of ties, and where the cultural milieu embraces the sharing of parental responsibilities, to ensure that natural parents fully comprehend that the adoption of a child by Canadian parents is viewed in Canadian law as fully and permanently severing pre-existing parental ties. In these cases, it is important to obtain clear evidence that natural parents with legal ties to a child have provided free and informed written consent to the adoption, and that they understand the significance of their actions. This serves to both assess whether pre-existing ties have been severed and to support a determination of whether the adoption is in the best interest of the child. Fundamentally it is important that the natural parents understand that international adoption is a lifelong permanent legal relationship established between the adoptive parents and the adopted child.

Relative adoptions

Where the adopted child is related to the adoptive parents, the pre-existing legal parent-child relationship should be severed under the law. While the natural parent should no longer be acting as a parent after the adoption has taken place, an ongoing relationship and contact with the natural parent and extended family may still occur. However, the new parent-child relationship between the adopted child and adoptive parents should be evident and not simply exist in law. Moreover, evidence that the natural parents fully comprehend the effects of a full adoption and that they have provided their consent to the adoption should also support a determination that the requirements of the Act have been met.

Open adoptions

In many legal systems, there are typically two main types of adoptions: full and simple. As has been mentioned above, only full adoptions meet the requirements of A5.1(1) and A5.1(2) of the Citizenship Act. An open adoption is a full adoption arrangement where there is disclosure and ongoing contact between the natural parents and the adoptive parents, but where the pre-existing legal parent-child relationship has still been severed. It is important not to confuse open adoptions with simple adoptions, which do not sever the legal link.

In an open adoption, interaction between the adoptive child or family and the natural family can vary in frequency and type of contact; it may include regular correspondence, telephone calls, or visits. In the case of older children adopted through an open adoption arrangement, the adopted child may have emotional attachments to one or more natural relatives with whom ongoing contact may be in the best interest of the child. While in an open adoption the adopted child may interact with his or her natural parents to varying degrees, the legal parent-child relationship with the former parents must be severed.

Refusals

The refusal letter should state the section of the Citizenship Act under which the applicant has been refused, the reason for the refusal and the information considered in reaching this decision. While reference should be made in the refusal letter to the regulatory factors which support the decision, the letter should clearly state that the refusal is under the Citizenship Act rather than the Regulations.

For more information and guidelines on successfully writing refusal letters for citizenship adoption applications, please see Operational Bulletin 184 (Guidelines for writing Part 2 refusal letters for citizenship adoption applications).

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