Dear Mr Brown:

I migrated to Canada from Jamaica many years ago, but have now returned. I am currently living in Mandeville. However, I wish to move back to Canada for many reasons that I wish not to discuss in this forum. I am interested in adopting my niece to give her a better life as I find Canada to be a perfect environment for raising children, in particular. Can you give me any pointers on how to proceed with this process?

— SM

Dear SM:

Many individuals do not understand the nature of adoption. As a general rule, Canadians may sponsor their adopted children to become permanent residents. This would be an excellent opportunity for your niece.

Adoption

Adoption is the legal process by which the parent-child relationship is created between persons not so related by blood. The child’s legal rights and duties toward the biological or natural parents are severed or terminated, while the corresponding similar rights, privileges and duties toward the adoptive parents are substituted. Accordingly, the adopted child becomes the heir and is entitled to all other privileges belonging to a natural child of the adoptive parents, including the right to inherit. To illustrate the point, it must be understood that as a result of severing rights with her natural parents, your niece would not be able to sponsor her birth parents or grandparents to become permanent residents of Canada after the adoption, since the right to do so would have been terminated.

Hague Convention

The Hague Convention on Protection of Children and Co-operation in respect of Inter-Country Adoption sets minimum standards and procedures for adoptions between countries. The Hague Convention is intended to end unethical adoption practices. It also promotes cooperation between countries and puts in place procedures that minimise the chance of exploitation of children, birth parents or adoptive parents during the adoption process.

Jurisdiction

With this in mind, the onus is on the adopting parent to provide evidence in respect of the minor’s adoption that establishes that the adoption is in accordance with the laws of the place where it took place. An application may be refused if an adoption does not comply with the laws of the country where it occurred.

In all cases of adoption, the genuine and informed consent of the biological parents (where applicable) must be provided. If both parents are alive, both should give consent. In the event that only one parent gives consent to an adoption, officers must be satisfied that the second parent has no legal rights with respect to the child.

An assessment of prospective parents with respect to their suitability to adopt is a pre-condition to an adoption. The assessment is undertaken by authorities. For immigration purposes, the regulations require that in the case of an adoption, a home study be conducted. Therefore, officers must ensure that a favourable home study conducted by a competent authority is available, such as a local child welfare authority or accredited social workers in Jamaica.

If an immigration officer has evidence that child trafficking has taken place or that there was undue (financial) gain in the process, such as a child was sold, then the sponsorship application will be refused.

Adoption of convenience

An important consideration pertains to relationships of convenience in which persons enter into a non-genuine adoption primarily for the purpose of acquiring status or privilege as a permanent resident in Canada. If the adoption is deemed by immigration authorities to be one of convenience based on sufficient evidence to support such a conclusion, the application to sponsor your niece will be refused. According to Canadian immigration law, in the case of a child to be adopted, the regulations exclude a relationship of convenience from the family class.

To assess whether an adoption has created a genuine relationship of parent and child, immigration officers examine:

* Whether the adoption completely severed the adopted child’s former legal ties with their biological parents and created a new legal parent-child relationship;

* The authenticity of relationships between adoptive parents and adopted children; and

* Whether the adoption was in accordance with the laws of the place where the adoption took place and the laws of the place of residence of the adoptive parent.

Medical condition

Adoptive parents must provide a written statement to the visa office confirming that they have obtained information regarding the child’s medical condition. This is important to the process as prospective family often abandon a child if they are unable to deal with a particular medical condition, or had been misinformed about the pre-existing condition.

I trust that these general pointers were helpful. Should you need any clarification or assistance, please contact my office.

For further information visit jamaica2canada.com.

Antonn Brown, BA, (Hons), LLB, MSc, RCIC, is an immigration counsel, education agent and managing director of JAMAICA2CANADA.COM — a Canadian immigration & education firm in Kingston. Send questions/comments to jamaica2canada@gmail.com.