Law Times

Page 10 JUNe 16, 2014 • Law Times www.lawtimesnews.com Adult adoptions on the rise By arsHy mann Law Times hen most people think about adoption, they usually picture an eager couple bringing a young child into their family. But at a time when blended families are becoming increasingly prevalent, adult adoption, while still relatively rare, is on the rise. Most adult adoptions occur when a step-parent adopts a partner's child but they also arise when foster parents adopt their foster chil- dren after they've reached the age of maturity. Even if both the parent and adult child want an adoption, the FOCUS Citizenship requires genetic connection to Canadian parents By arsHy mann Law Times judge has ruled chil- dren born abroad must have a genetic connection to their Canadian parents in order to re- ceive Canadian citizenship. The case involved a child born in India to a Canadian fa- ther and an Indian mother. The married couple, who were both infertile, used sperm and ova donations to conceive the child. The Canadian government refused to give the child citizen- ship on the basis that it had no genetic connection to a Canadi- an citizen. In Canada (Citizen- ship and Immigration) v. Kan- dola, a case decided in March, the Federal Court of Appeal sided with the government and ov erturned a previous decision. The court's ruling hinged on the interpretation of the French- language phrase "née d'un père" in the Citizenship Act, some- thing the court argued required a genetic link to the father in or- der to confer citizenship. The ruling came as a disap- pointment to Sara Cohen, a fertil- ity lawyer based in Toronto. "This is an absurd result, the way I see it, and it doesn't make sense as a body of law altogeth- er," she says. Cohen believes that not only did the ruling lead to a bad re- sult but it stemmed from faulty reasoning. "I don't think this was that case where you had to bend the legisla- tion to make it fit something that was not an absurd result and that made good policy sense," she says. "Because what I see as the right decision was really eas- ily available to the majority, but they chose not to go that way." Cohen points out that both Canadian and Indian law oper- ate with a presumption of pater- nity when it comes to conferring citizenship. "The baby in Indian law is a child of its mother and a child of its father because the parents are married. Under Canadian law, in every single province there's al- ways a presumption of paternity if someone is married, regardless of the genetic connection." Instead, she sees the ruling as discriminating against children by the way in which they were conceived. "We haven't said for any other child born in that situation when you're not using assisted repro- ductive technologies that they're not entitled to citizenship on the basis that they don't have that genetic connection. So why are we now doing it just because the child was born using assisted re- productive technologies?" In the dissent, Justice Rob- ert Mainville found the ruling would lead to the absurd result that a child born anywhere in the world of donor sperm or ova from a Canadian would automatically get Canadian citizenship. "In this way, derivative Canadian citizen- ship is conferred to a child born to a Canadian parent following a fer- tilization technique, and this irre- spective of the nationality of the genetic donors," wrote Mainville. "On the other hand, deriva- tive citizenship is not conferred to a child born to foreigners following a fertilization tech- nique w hich uses genetic mate- rial from a Canadian citizen, since in such circumstances the genetic contributor is not deemed in law to be a parent." Cohen hopes Parliament will amend the Citizenship Act to make it clear that children born through gamete donation can also obtain Canadian citizen- ship by virtue of descent. Although Cohen would like to see the case go before the Su- preme Court, the parents have already moved to Canada and don't have the funds to pursue a further challenge. "It's clearly a decision that is ripe for the Supreme Court," she says. The only other route would be for Parliament to amend the Citizenship Act to make it clear that children born through gamete donation can also re- ceive citizenship by virtue of descent. Considering how common transnational third-party repro- duction is today, Cohen believes another court challenge is inevi- table. "I think there's going to be more and more cases that have to do with this and I think someone is going to challenge it at some point because I think it's bad law," she says. "I really hope someone does something. It's just so sad. It just doesn't feel good." LT WWW.CANADIANLAWYERMAG.COM/LEGALFEEDS A DAILY BLOG OF CANADIAN LEGAL NEWS FEEDS LEGAL POWERED BY Untitled-3 1 14-05-27 1:32 PM ENHANCE your DIVORCEmate experience with TOOLS CLOUD. ENJOY the freedom and flexibility of running child and spousal support calculations from anywhere, anytime, on your smartphone, tablet, Mac or PC. To learn more, visit: www.divorcemate.com DIVORCEmate's full-featured TOOLS CLOUD coming soon. Untitled-2 1 14-06-06 10:41 AM A 'It's clearly a decision that is ripe for the Supreme Court,' says Sara Cohen. See Approval, page 11 W

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