9. Foreign law and foreign judgments with particular reference to adoptions
This chapter discusses principles and factors relating to foreign law and judgments. Although this chapter focuses primarily on adoption, some of the principles referred to herein may be of assistance to decision-makers when they assign weight to evidence of foreign law and judgments more generally.
Regulations, for sponsorship purposes, a child will only be considered a member of the family class by virtue of an adoption if that adoption was (a) in the best interests of the child within the meaning of the
Hague Convention on Adoption, and (b)not entered into primarily for the purpose of acquiring any status or privilege under the
IRPA.Footnote 220 Some of the factors relating to the best interests of the child are incorporated into the
Regulations as requirements, including that the adoption created a genuine parent-child relationship,Footnote 221 and that the adoption was in accordance with the laws of the place where the adoption took place.Footnote 222 Some of these requirements were incorporated in the definition of “adoption” in the former
Immigration Regulations, 1978 and therefore any cases decided under the former
Regulations continue to be of assistance.Footnote 223 The requirements developed by the IAD under section 4 of the version of the
Regulations that was in force prior to September 30, 2010 remain just as relevant to determining whether the adoption created a genuine parent-child relationship and whether it was entered into primarily for the purpose of acquiring any status or privilege under the
Most adoption cases that come before the IAD involve foreign adoptions. Where the refusal is based on the legal validity of the adoption, the sponsor must establish that the adoption is valid under the laws (sometimes under the customs) of the jurisdiction where the adoption took place. This involves presenting evidence of the content and effect of the foreign law or custom.Footnote 225 For example, in the case of adoptions in India, that evidence is usually the
Hindu Adoptions and Maintenance Act, 1956 (HAMA).Footnote 226
In addition to the actual foreign law, sponsors may submit other forms of evidence such as expert evidence, doctrine, foreign case law, declaratory judgments, and adoption decrees and deeds.
Regulations require that the adoption create a legal parent-child relationship which severs the pre-existing parent-child relationshipFootnote 227 and—as stated above—that the adoption be in accordance with the laws of the place where the adoption took place.Footnote 228 In determining whether an adoption is legally valid, it is important to understand how foreign law is proved, and to identify and understand the principles of conflict of laws which govern the effects of foreign laws and judgments before Canadian courts and tribunals.Footnote 229
The following terms are used in reference to foreign law:
- declaratory judgment: a judgment declaring the parties' rights or expressing the court's opinion on a question of law without ordering that anything be done;Footnote 230
in personam: where the purpose of the action is only to affect the rights of the parties to the action
inter se (between them)Footnote 231
in rem: where the purpose of the action is to determine the interests and rights of all persons with respect to a particular
res (thing);Footnote 232 and
- deed of adoption: a registered document purporting to establish the fact that an adoption has taken place.
The usual rule in Canada is that foreign law is a fact which must be pleaded and proved,Footnote 234 on a balance of probabilities, by producing clear and cogent evidence.Footnote 235 The IAD cannot take judicial notice of it.Footnote 236 In cases before the IAD, the burden of proving the foreign law or custom lies on the party relying on it, in most cases, the sponsor.Footnote 237
There are several ways in which foreign law can be proved, including statute, expert evidence,Footnote 238 and agreement of the parties (consent). The foreign law ought to be proved in each case. Although the IAD is not entitled to take judicial notice of the proof presented in other cases,Footnote 239 it can adopt or follow the reasoning of other panels regarding their interpretation of the foreign law.
Shergill,Footnote 240 the IAD had to weigh the conflicting evidence relating to Indian law and gave little weight to three Indian lawyers' interpretations of an
HAMA provision. The Federal Court dismissed the judicial review, finding the IAD had not erred in weighing the evidence and stating that while the evidence related to the interpretation of Indian law, “the weighing of such evidence is no different than the weighing of any other evidence by a tribunal.”
Section 23 of the
Canada Evidence ActFootnote 241 provides that evidence of judicial proceedings or records of any court of record of any foreign country may be given by a certified copy thereof, purporting to be under the seal of the court, without further proof. The IAD does not normally require strict proof in this manner, although the failure to comply with section 23 has been relied on in weighing the evidence produced.Footnote 242 It must be remembered that the IAD is not bound by any legal or technical rules of evidence.Footnote 243
The jurisdiction of the IAD in an adoption case is to determine whether or not the adoption in question falls within the
Regulations; in other words, that it (a) has been proven under the relevant law, (b) has not been entered into primarily for the purpose of acquiring any status or privilege under the
IRPA, and (c) creates a genuine parent-child relationship. The IAD's role is not to adjudicate the status of adoption generally.Footnote 244 The
Regulations, as indicated earlier, require that the adoption be in accordance with the laws of the jurisdiction where the adoption took place.Footnote 245 Thus, in a foreign adoption, the absence of evidence about the applicable foreign law does not allow the IAD to consider whether the adoption was done in accordance with Canadian law.
Asad,Footnote 246 the Federal Court of Appeal considered an appeal of an application made under the
Citizenship Act.Footnote 247 The court rejected the appellants' argument that, in the absence of any evidence of foreign law, it should be presumed that it is the same as Canadian law. The court wrote (at para 37):
This argument is without merit. As is readily apparent from
subsection 5.1(1) of the Act, Parliament has set a statutory standard pursuant to which an adoption must notably be shown to have occurred ‘in accordance with the laws of the place where the adoption took place and the laws of the country of residence of the adopting citizen' (subsection 5.1(1)(c)). The language of the Act creates an obligation to adduce evidence of foreign law and the Officer's decision has to be measured according to this standard.
Sharma,Footnote 248 the IAD had allowed the appeal based on a finding that the applicants' adoption complied with the provisions of the
HAMA. Two legal opinions provided by lawyers in India were filed in support of the validity of the adoption. The IAD found the two legal opinions supported the allegation that the requirements of
HAMA were met and the adoption was formally valid. The Federal Court allowed the application for judicial review and held that the IAD's conclusion was not supported by the evidence.
In weighing evidence of foreign law, the IRB may have regard to the following factors:
- the date of the foreign law;Footnote 249
- any amendments made to the law since it was published;
- where the evidence is a statute, the potential effect of foreign case law; and
- whether the evidence was presented by an expert,Footnote 250 and if so, the expert's relevant qualifications and experience.Footnote 251
For example, in
Fuad,Footnote 252 the panel looked at the validity of the marriage celebrated under Sharia law or Islamic law in Ethiopia in relation to the refusal of a sponsored application. Three legal opinions were presented to the panel on the interpretation of Ethiopian law regarding marriages by proxy. Faced with conflicting opinions, the panel observed that it is always useful to know the degree of expertise of the person who prepared a legal opinion. The panel preferred the opinion of an expert whose qualifications—including practice in the relevant field of law—were provided in detail. To his credit, that expert went a step further than the others and discussed practical applications of the Ethiopian Civil Code.
Bajracharya,Footnote 253 the appellant before the IAD provided a written legal opinion of a lawyer who also testified at the hearing on a number of provisions of the adoption laws of Nepal. Since the expert was unable to provide any credible explanation for an apparent contradiction between his opinion and the wording of the provisions, the panel adopted its own interpretation.
Lee,Footnote 254 neither the Minister's counsel nor the appellant was able to provide copies of the applicable adoption statutes of Myanmar, both arguing that such documentary evidence was difficult to obtain. The panel decided to accept the legal opinion of a lawyer from Myanmar that was obtained by the visa office “as evidence that sets out the relevant and applicable adoption laws in Myanmar. There was no objective evidence that the legal counsel has any interest in the outcome of this case and [he] appears to have provided objective, credible and trustworthy evidence.”
9.3.1 Declaratory judgments and deeds
Sponsors before the IAD often seek to establish the status of applicants for permanent residence through the production of foreign judgments declaring the applicants' status in the foreign jurisdiction. While there is a presumption that a judgment made by a foreign court of competent jurisdiction is valid, there are circumstances in which the decision maker is entitled to go behind the judgment. In any event, the IAD is not bound by the foreign judgment and must make its decision based on the whole of the evidence before it. The foreign judgment forms part of the evidence in the case, and as such must be weighed by the decision maker.
Some of the factors that may be considered when assigning weight to foreign judgments include whether the foreign court had before it the full evidence that is before the IAD, and whether the foreign judgment was obtained on consent of the interested parties, if applicable.
The issue has been expressed as one of determining whether the IAD ought to look behind the judgment to determine either its validity or its effect on the issues before the IAD.
Guide to Adoptionsunder the
Hindu Adoptions and Maintenance Act, 1956, Wlodykastates that:Footnote 255
The starting point in any discussion of the legal effect of a declaratory judgment [...] is the decision of the Federal Court of Appeal in
Taggar. This case stands for the proposition that a declaratory judgment is a judgment “in personam” and not “in rem”. Therefore, it is binding only on the parties to the action. Nevertheless, the declaratory judgment is evidence and the weight to be accorded to the declaratory judgment depends on the particular circumstances of the case.
Sinniah,Footnote 256 the Federal Court held that it was patently unreasonable for the visa officer to ignore the legal effect of a final court order and to decide, in the absence of cogent evidence, that an order pronounced by a court in Sri Lanka was insufficient to establish that an adoption was made in accordance with the laws of Sri Lanka.
Boachie,Footnote 257 the Federal Court considered the effect in Canada of a foreign court order that appeared, on its face, to be inconsistent with the relevant foreign law. The IAD had dismissed the appeal after the Minister successfully raised a new ground of refusal by questioning the legal validity of the adoption. The Minister argued non-compliance with subsection 673(a) of Ghana's
1998 (Act 560), whereby an adoption order shall not be made unless the adoptee has been in the continuous care of the applicant for at least three consecutive months immediately before the date of the adoption order. The authenticity of the Ghanaian court order was not in question, and there were no allegations of fraud with respect to that order. The court allowed the application for judicial review, holding that a valid foreign court order of adoption cannot be ignored or set aside by a Canadian visa officer or the IAD for an apparent irregularity or failure to comply with a provision of the foreign law unless there is clear evidence that the order was obtained by fraud.
Singh Dhadda,Footnote 258 the Federal Court concluded that it was not unreasonable for the immigration officer to place little weight on the Indian Adoption Deed. The deed indicated that the “ceremony of giving and taking the child in adoption including physical delivery from hand to hand has been performed under ceremonial pomp and show.” However, there were significant material discrepancies and inconsistencies in the evidence given by the individuals interviewed concerning the nature of the relationship between the adopted child and his biological parents and the adoption ceremony itself.
CheshenchukFootnote 259 is an example of a case where the high threshold required to disregard a foreign court order for “fraud or irregularity” was satisfied. The applicant adopted two children through a domestic private adoption in Ukraine based on her Ukrainian citizenship and a misrepresentation that she resided in Ukraine. The applicant had not disclosed that she was also a Canadian citizen or that she actually resided in Canada, which would have forced her to seek an international adoption under Ukrainian law. A citizenship officer concluded that the adoptions were not in accordance with Ukrainian law and disregarded the Ukrainian court order declaring the adoption. The Federal Court concluded that there were sufficient grounds for the officer to disregard the Ukrainian court order because (a) the order was not made in circumstances that accorded with the Ukrainian law pertaining to adoption, and (b) it was obtained based on the applicant's serious misrepresentations to the Ukrainian authorities concerning her place of residence and civil status.
Singh,Footnote 260 the Federal Court upheld the visa officer's decision to give no weight to the Deed of Adoption on the basis that it was not a court order. The officer was faced with independent, “cogent evidence” which cast doubt on the adoption deed, specifically the applicant's statement to the officer that the giving and taking ceremony had not occurred.
Sran,Footnote 261the appellant sought to rely on a declaratory judgment of an Indian court upholding the validity of an adoption deed. At the time of the adoption, the appellant had three Hindu sons. The IAD dismissed the appeal, holding that it was bound by the
Taggar decision,Footnote 262 in which the Federal Court of Appeal held that the declaratory judgment in question was a judgment
in personam which bound only the parties to the action. The IAD stated that the declaratory judgment was merely evidence which must be considered along with other evidence in determining the validity of the adoption and did not dispose of the issue by itself. The IAD noted that the existence of “Hindu sons” at the time of the adoption was apparently never raised before the Indian court, and stated that the declaratory judgment could not cure the defect in the adoption, which clearly contravened the
Similar considerations apply in the context of foreign marriage and divorce. Caution must be exercised in concluding that a marriage is not valid in the face of what appears to be a valid court order.Footnote 263
Gill,Footnote 264 the applicant obtained an
ex parte order from an Indian court stating that two marriage certificates were false and that he was not married. When his application for permanent residence was refused, he sought a declaration from the Federal Court that he was never married and had answered the visa officer's questions truthfully. A motion to strike the action was granted because the court does not have jurisdiction to make declarations of fact. In
obiter, the court was critical of the officer's failure to accept the judgment of the Indian court on the basis that it was obtained
ex parte, as this alone does not make the judgment valueless or invalid. The judgment was issued by a court with proper jurisdiction to render such a decision.
Burmi,Footnote 265 the panel gave little weight to a declaratory judgment by an Indian court respecting the marriage of the appellant and applicant, as it did not refer to the date and place of the marriage and was obtained some four months after the applicant received her refusal letter.
In another case, the IAD gave little weight to a declaratory judgment obtained
ex parte that purported to establish the marriage of the appellant and sponsoree, as the record showed that the evidence before the Indian court had been incomplete. Based on the evidence before the IAD, it appeared that the appellant was married to another person and thus lacked the capacity to marry the sponsoree.Footnote 266
Cheikhna,Footnote 267 the IAD ruled on the validity of a marriage under Mauritanian law. No probative value was given to the marriage certificate because of the confusion surrounding the role of a witness at the time of the marriage and the certificate's non-compliance with the requirements of Article 76 of the
Personal Status Code. The Federal Court, citing
Ramalingam,Footnote 268 stated that “one does not have to find problems with an official document issued by a foreign state, such as a marriage certificate, to question its validity … such documents benefit only from a presumption of validity.”Footnote 269
In matters of divorce,Footnote 270 the Federal Court of Appeal has held that a domestic court may not refuse recognition of a foreign divorce on the ground that there was fraud or collusion in obtaining it unless the fraud was such that it led the foreign court to wrongly assume jurisdiction over the subject matter.Footnote 271
The rules concerning the recognition of foreign divorce judgments in Canada are provided by the case law and
section 22 of the
Divorce Act.Footnote 272
It should be noted that subsection 22(3) of the
Divorce Act preserves the common law with respect to the recognition of divorces. There were several common law rules developed prior to the adoption of divorce legislation in Canada which are succinctly summarized in
El Qaoud,Footnote 273 quoting
Payne on Divorce, 4th ed.:
Section 22(3) of the
Divorce Act expressly preserves pre-existing judge made rules of law pertaining to the recognition of foreign divorces. It may be appropriate to summarize these rules. Canadian courts will recognize a foreign divorce: (i) where jurisdiction was assumed on the basis of the domicile of the spouses; (ii) where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties; (iii) where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings; (iv) where the circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada; (v) where either the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted; and (vi) where the foreign divorce is recognized in another foreign jurisdiction with which the petitioner or respondent has a real and substantial connection.
Lau,Footnote 274 the IAD had concluded that the applicant's divorce from his first wife, which was obtained in China, was not undertaken in compliance with Canadian law and therefore was not considered a valid divorce in Canada. Therefore, the applicant was still married to his first wife and did not have the right to sponsor his alleged second wife. The panel considered subsection 22(1) of the
Divorce Act and concluded that it did not apply because neither the applicant nor his first wife were ordinarily resident in China for at least one year immediately preceding the commencement of proceedings for their divorce. With respect to subsection 22(3), the IAD held that allowing Canadian residents to divorce in a jurisdiction with which they had no connection “of any substantive nature” would offend Canadians' notion of fairness and not be in harmony with Canadian public policy.
The Federal Court allowed the application for judicial review. Citing
Amin,Footnote 275 the court held that subsection 22(3) of the
Divorce Act required the IAD to first determine whether the divorce was legally valid in China, which it failed to do. The court could not speculate as to whether the IAD's conclusion regarding fairness and Canadian public policy would have been the same had the divorce's validity in China been properly considered.
9.3.2 Presumption of validity under foreign law
Documentary evidence before the IRB may benefit from a legal presumption of validity in the jurisdiction in which it originated. For example, the IAD has dealt with the issue of adoption deeds in the context of section 16 of
HAMA, which creates a presumption of validity under Indian law.Footnote 276
Dhillon,Footnote 277 the Federal Court of Appeal ruled that, according to subsection 2(1) of the
Immigration Regulations, 1978, (now
subsection 3(2) and
section 117 of the
Regulations), the panel had to determine whether the adoption complied with the laws of India. As there was no doubt in this case that the adoption had not been carried out in compliance with Indian laws, the presumption was essentially rebutted.
Singh, the Federal Court of Appeal ruled that the presumption set out in section 16 of
HAMA cannot be used to determine whether a person is “adopted” for the purposes of the
Sahota,Footnote 279 the Federal Court agreed with the applicants' argument that the officer had been bound by the presumption of validity because she had no authority to declare an Indian adoption void. Her task was merely to determine whether the adoption was valid for the purposes of Canadian law. Her determination that an adoption was invalid for the purposes of the Citizenship Act has no effect on the adoption's status in India.
Gill,Footnote 280 the IAD had to determine whether all the parties to the adoption agreed on the sponsor's adoption. Three years after the adoption ceremony, an Indian court had rendered a declaratory judgment establishing that the mother of the applicant was her sole guardian, as her father was presumed dead. The IAD stated that this evidence did not contradict the other evidence that the parties to the adoption had the intention of moving forward with the adoption. The declaratory judgment had been obtained merely to facilitate the sponsorship application. The panel ruled that the testimony of the appellant and of others who testified on her behalf outweighed the declaratory judgment, given the particular circumstances of this case.
9.3.3 Parent and child relationship created by operation of foreign law
Although the Immigration Appeal Board historically interpreted section 12 of
HAMAFootnote 281 as having the effect of creating a parent and child relationship by operation of law,Footnote 282 it would be an error to presume that a parent and child relationship has been created simply because an adoption is proved to be legal. Various relevant factors must be taken into account in the assessment of the parent and child relationship.Footnote 283
The Federal Court – Trial Division indicated the following in
A parent and child relationship is not automatically established once the requirements of a foreign adoption have been demonstrated. In other words, even if the adoption was within the provisions of HAMA, whether the adoption created a relationship of parent and child, thereby satisfying the requirements of the definition of “adoption” contained in subsection 2(1) of the
Immigration Regulations, 1978, must still be examined.Footnote 285
Rai,Footnote 286 the sponsor's adoption was governed by the
Alberta Child Welfare Act. The IAD rejected the argument that an adoption order under that Act was clear and incontrovertible evidence that a genuine parent and child relationship had been created.
Frounze,Footnote 287 the IAD erred in presuming that because the adoption was legal, there was a parent and child relationship. The Federal Court wrote:
 I cannot agree with the Respondent's position in this regard. The word “adopted” is defined in the
Immigration Regulations to mean a person who is adopted in accordance with the laws of a province or of a country other than Canada “where the adoption creates a genuine relationship of parent and child.” Hence, in my opinion whenever the word “adopted” comes up for consideration under the
Immigration Regulations, it is not sufficient to consider the bare legality of an adoption and the decision maker must also determine whether a genuine relationship of parent and child was created.
 This means that, under ss. 2(1) of the
Immigration Regulations, someone will not have been adopted if, notwithstanding an adoption in accordance with the laws of another country, no genuine relationship of parent and child has been created. …
9.3.4 Power of attorney
In cases where the sponsor, for one reason or another, does not travel to the country where the applicant is in order to complete the adoption, the sponsor may give a power of attorney to someone to act in their stead. The power of attorney gives the person named in it the authority to do whatever is necessary in order to complete the adoption in accordance with the laws of the jurisdiction where the adoption is to take place.
An issue that has arisen in this area with respect to Indian law is whether
HAMA requires that the power of attorney be in writing and registered for the adoption to be valid. In a number of decisions, panels have ruled that neither is required.Footnote 288
Another issue is whether the sponsor can give a power of attorney to the biological parent of the person to be adopted. In
Poonia,Footnote 289 in dealing with the requirements of a giving and taking ceremony under Indian law, and after reviewing a number of Indian authorities, the IAD held that the power of attorney must be given to a third party who cannot be the biological parent as that person is a party to the adoption.
9.3.5 Revocation of adoption
subsection 133(5) of the
Regulations, an immigration officer (and the IAD) may consider whether the revocation of an adoption by a foreign authority was obtained for the purpose of sponsoring an application for a permanent resident visa made by a member of the family class (of the biological family), and if it was, to rule that the intended sponsorship is not permissible.
In the past, visa officers have refused to recognize revocations by foreign authorities, and in some cases where the sponsorship applications of biological parents by their children given up for adoption had failed, the IAD (and the Immigration Appeal Board) had the chance to examine the issue.
Sharma,Footnote 290 the IAD was presented with a declaratory judgment from an Indian court nullifying the adoption of the sponsor. The judgment was obtained by the sponsor's biological father in an uncontested proceeding. After considering the expert evidence presented by the parties, the IAD concluded that the judgment was
in personam and that the weight to be given to it would depend on the particular circumstances of the case. The IAD inferred from the evidence that the Indian court had not been informed of the immigration purpose for the action and gave the judgment little weight. It also found that the only possible reason for nullifying an adoption under Indian law, misrepresentation, was not present in the case.Footnote 291
Chu,Footnote 292 the panel acknowledged that an adoption can be terminated in China with the agreement of the parties. However, because neither the sponsor nor her adoptive father had any real and substantial connection with China at the time the revocation was obtained, the panel ruled that the applicable law was not Chinese law but British Columbia law. Under this law, termination of adoption was not possible.
Purba,Footnote 293 the sponsor had been adopted by her grandparents but was granted an immigrant visa on the basis that she was their dependent daughter. The fact of the adoption was not disclosed to the visa officer. A few years later, she attempted to sponsor her biological mother, but that application was refused. The evidence presented at the IAD hearing showed that the adoption was void ab initio,Footnote 294 however, the appeal was dismissed on the basis of estoppel. As the panel put it:
[The sponsor] was granted status in Canada as a landed immigrant and subsequently as a Canadian citizen based on a misrepresented status which was acted upon by Canadian immigration officials. In my view, she is estopped from claiming a change in status to enable her to sponsor her biological mother.Footnote 295
Bailey,Footnote 296 the IAD found that although the appellant had been adopted, the visa officer should have assessed whether a genuine parent and child relationship had been created rather than presuming that she could not sponsor her biological mother. The panel ruled that such a relationship had not been created between the appellant and her adoptive mother, therefore the appellant was not prevented from sponsoring her biological mother as a member of the family class.
9.3.6 Severing the pre-existing legal parent-child relationship
Subsection 3(2) of the
Regulations requires that an adoption creates a legal parent-child relationship and severs the pre-existing legal parent-child relationship. In some foreign jurisdictions, an adoption may be granted without severing the pre-existing legal parent-child relationship. For the purposes of the
Regulations, this would constitute an incomplete adoption.
Sertovic,Footnote 297 the adoption was considered “incomplete” under the adoption laws of Bosnia-Herzegovina because the child was over the age of five at the time of the adoption. Under that country's law, the adoptive parents gain the full rights of natural parents, however, the natural parents' rights are in no way affected. The legal relationship uniting the child (the applicant) to her biological mother (the sole surviving parent) was not severed. Even though the panel ruled that the appellant and her spouse had actively taken part in the upbringing of the applicant, the appeal was dismissed because the parent and child relationship between the applicant and her biological parent had not been severed.
Vo Abadie,Footnote 298 the IAD determined that the “ordinary” (as opposed to “plenary”) adoption obtained under the French civil code did not amount to a valid adoption under subsection 3(2) of the
Regulations. It was established that following an ordinary adoption decided in France, the adopted child maintained his ties and rights to his biological family.
Kenne,Footnote 299 the IAD had dismissed the appeal on the basis that the applicants' adoptions did not comply with Cameroonian law and did not sever their pre-existing legal parent and child relationships with the biological parents in accordance with the requirements in subsection 3(2) of the
Regulations. The Federal Court decided that the IAD erred in its interpretation of the Cameroonian law on adoption. The court determined that the Cameroonian adoption judgment was to be included among all the documentary evidence filed, as well as the biological mothers' consent deeds for the children that were submitted to the Cameroonian court in support of the request for adoption. These consent deeds explicitly stated that the biological mothers were informed of the substitution of the parent and child relationships, which would result in the adoption of the children.
9.3.7 Public policy
At times, sponsors have argued that certain provisions in foreign adoption legislation are discriminatory and should not be recognized by Canadian authorities on the basis of public policy.
SidhuFootnote 300 dealt with a situation where the purported adoption was not recognized by the visa officer because it was in contravention of the
HAMA. The sponsor argued before the IAD that the relevant provision in the
HAMA was discriminatory and should not be given effect because to do so would be contrary to public policy. The IAD accepted the argument and held that the adoption was valid. The Federal Court of Appeal set aside the IAD's decision, noting that:
Paragraph 4(1)(b) [of the
Immigration Regulations, 1978] represents the conflict of laws rule of the
Immigration Act. There is here no “material” rule of conflict in the sense of a substantive rule of law applicable since there is no federal adoption legislation. Nor are we in a situation where there is a law of “immediate application” in the sense of a law which must unilaterally and immediately apply so as to protect the political, social and economic organization of Canada to the exclusion of the foreign law that would normally be applicable by virtue of the conflict of laws rule of Canada. Such a situation, when it occurs, can only have the effect of excluding
in toto the relevant foreign legislation. For instance, if the present adoption were valid under the HAMA, but contrary to Canadian public policy, a rule of immediate application could stipulate that the adoption will not be recognized in Canada. The Canadian authorities would then be obligated to refuse to recognize an adoption performed abroad for reasons of public policy. This is not what the Board did [...]
What the Board did [...] was to purge clause 11(ii) of the HAMA as being contrary to Canadian public policy and then to validate what would be an otherwise invalid adoption according to the Indian legislation [...]
In my view, the Board erred.
[... T]he Board had no jurisdiction under the
Immigration Act to grant a foreign adoptive status which was not valid under foreign law on the grounds that the cause of the invalidity is contrary to Canadian public policy. [Footnotes omitted.]
It is unclear whether the IAD may refuse to recognize an adoption that meets the requirements of the foreign law on grounds of public policy. In
Chahal,Footnote 301 the appellant, a Canadian citizen living in Canada, had been adopted in India. She then tried to sponsor her adoptive family. The panel found that the adoption did not comply with the requirements of the
HAMA. In obiter, it went on to say that in circumstances where the adopted child is ordinarily resident and domiciled in Canada, to recognize a foreign adoption would be contrary to public policy because the protective jurisdiction of the British Columbia Supreme Court would be denied to that child.