SOCI – International Adoptions and Bill C-71 – December 5, 2024

Key Messages

• The intent and structure of the Citizenship Act has been, and remains, to ensure that children adopted abroad by Canadians and children born abroad to Canadians are treated as similarly as possible.
• Some stakeholders are of the view that children born abroad and adopted (i.e. children adopted abroad) should be treated similarly to naturalized citizens or children born in Canada and not be subject to the substantial connection requirement of Bill C-71.
• Bill C-71 does not propose any alterations to the existing direct adoptions grant of citizenship process under the Citizenship Act. Bill C-71 will extend access to that grant to children adopted abroad in the second or subsequent generation.
• As with children born abroad, those adopted abroad before the coming into force (CIF) of Bill C-71 will not be subject to the substantial connection requirement. Only those born or adopted beyond the first generation on or after the CIF of Bill C-71 will be subject to the substantial connection requirement.

Supplementary Information

• Under the law prior to 2007, children adopted abroad by a Canadian parent first had to become permanent residents (PRs) prior to being able to apply for a grant of citizenship under the Citizenship Act. In cases where Canadian parents did not intend to return to Canada, it was not possible to sponsor the child in the family class to become a PR, and so they could not become a Canadian.
• The current framework governing citizenship by descent and international adoptions was developed in light of a number of court decisions (Canada (Attorney General) v. McKenna (FCA) (1999); Worthington v Canada (FC) (2008)), which indicated that certain distinctions between biological children born abroad to Canadians and children adopted abroad by Canadians were discriminatory.
• In 2007, the government brought forward Bill C-14, An Act to amend the Citizenship Act (adoption), which came into force on December 23, 2007. This Bill created a direct pathway to citizenship for children adopted abroad under a new section 5.1 in the Citizenship Act that does not require adoptive parents to apply for permanent residence and treats adopted children as similarly as possible to their biological/legal child at birth counterparts.
• The pathway involves a grant of citizenship and not “automatic” citizenship by descent, since Canada is a signatory to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, which seeks to protect the child’s best interests and prevent abuses such as the abduction, sale, or trafficking of children. As such, the direct grant process includes an assessment to ensure the adoption complies with international adoption requirements. 
• Adopted children who are granted citizenship under section 5.1 of the Act are treated like citizens by descent, similar to children born abroad to Canadians. In this way, the framework governing international adoptions within the Citizenship Act now seeks to ensure that adopted children and biological/legal children at birth are treated as similarly as possible, and to avoid any distinction in the nature of the citizenship status afforded to them under the Act.
• The policy rationale for applying the substantial connection test equally going forward to both groups under Bill C-71 is to ensure that children adopted abroad by Canadians and children born abroad to Canadians continue to be treated as similarly as possible.
• Should C-71 as drafted become law:
  • any child born abroad to a Canadian parent before CIF will become a citizen, and any child adopted abroad by a Canadian parent before CIF will have access to citizenship through the adoptions grant.
  • on a go forward basis, any child born or adopted abroad on or after CIF to or by a Canadian parent in the second or subsequent generation will have access to citizenship if they can demonstrate substantial connection to Canada prior to the child’s birth or adoption.
• Some stakeholders have stated that the first generation limit and/or Bill C-71’s substantial connection requirement should not apply to either adoptive parents or adopted children. They want children adopted abroad to be treated as naturalized or born in Canada, and therefore not subject to the first generation limit and not required to meet the substantial connection requirement themselves in order to be able to pass down citizenship to their children born or adopted abroad.
• However, should the Department choose to depart from the existing framework for citizenship by descent in the international adoptions context and treat adopted children as if they are naturalized citizens, this will result in different treatment and outcomes for the two groups (although in these circumstances, it would be the biological/legal child at birth citizens by descent who would be subject to more onerous requirements than their adopted counterparts).