Law Times

PAGE 10 FOCUS March 9, 2009 • Law TiMes complaints about discrimina- tion against adopted children, but new rules taking effect in April will reverse that progress, advocates fear. "They're going to be treated differently," says Toronto immi- gration lawyer Shoshana Green, a partner at Green and Spiegel Barristers and Solicitors. "You're basically penalizing kids who were adopted abroad." At issue is a law amending the Citizenship Act for chil- dren born outside of Canada. It means people born abroad will be Canadians at birth only if the parent was born here or if the parent became a citizen by immigrating to Canada fi rst. "This means that children born in another country after the new law comes into effect will not be Canadian citizens by birth if they were born outside Canada to a Canadian parent who was also born outside Canada to a Canadian parent," a rather com- plicated explanation on Citizen- ship and Immigration Canada's web site states. "This limitation will also ap- ply to foreign-born individuals adopted by a Canadian parent," the web site continues. "The ad- opted children of Canadian citi- zens will be considered to be the fi rst generation born abroad." Those provisions mean two things for people who adopt. If a Advocates fear new rules penalize kids adopted abroad C BY GLENN KAUTH Law Times hanges to Canada's citi- zenship laws in 2007 ended long-standing person born abroad and adopted by Canadians later has a child outside the country, he or she won't be a citizen by birth. At the same time, that person won't be eligible to apply for citizenship under the rules enacted in 2007 that were supposed to liberalize the process for adoptees. The government points out, however, that the law doesn't freeze those adopted children out of citizenship completely. "Children who are not eligible for citizenship under the Citi- zenship Act may be sponsored as permanent residents and then apply for citizenship," the CIC web site states. For the government, the new rules are about protecting "the value of Canadian citizenship." "The legacy of Canadian citizenship will not continue to be passed on through genera- tions living abroad who have no attachment to Canada," CIC spokeswoman Danielle Norris wrote in an e-mail. Nevertheless, Green says the changes amount to discrimina- tion. While the government may have legitimate concerns about new Canadians in general later leaving the country but still able to pass on citizenship to their descen- dants abroad, Green argues the implications for adopted children are misplaced given the growth of international adoptions in recent years. "There has to be an end point, but you're discriminating against the adopted child. We're in an international world now. People move all over the place." Adding to the frustration is the C A N A D I A N L E G A L N EWSWI R E it's fresh, it's free, it's weekly e-news! Sign up today at www.lawtimesnews.com FROM THE EDITORS OF LAW TIMES AND CANADIAN LAWYER fact that the 2007 changes allow- ing Canadians to get citizenship for their adopted children while still abroad haven't worked out as smoothly as hoped. Previously, new parents had to fi rst sponsor their adopted kids as permanent residents so they could come to Canada and then apply for citizenship. The new rules were meant to simplify and potentially shorten that process by allowing them to get citizenship for the kids before coming here. But so far, Green says parents still using the old sponsorship- then-citizenship route are fi nding taking around four months." With the permanent resi- dence route, there are also two steps. First, offi cials verify that the parent is eligible to sponsor a child before moving on to the same second step of reviewing the adoption. That fi rst step "is a machine," Green points out. Norris, however, responded that overall, the new process ends up being shorter. "Parents will save time overall by applying directly because they will not have to make a permanent residence application fi rst and then a citizenship appli- cation," she wrote. She added that option is taking longer than for those who apply from overseas, meaning Battista recommends clients submit their applications while abroad instead. But for failed refugee claimants who are still here and are now seeking a second option of sponsorship by a spouse, Battista says they should know they have to sub- mit their application before the government fi les a pre-removal risk assessment. "A lot of people aren't aware of that rule, so their application goes in too late." But particularly important is making sure an inland applica- It's very frustrating because the parents have gone through so many steps. They've fi nally completed the adoption and now they're waiting for the visa offi ce. that option is a quicker way of get- ting adoptees to Canada. "It's ac- tually slower than the immigration process to sponsor for permanent residence," she says, referring to the direct citizenship process. "It's very frustrating because the par- ents have gone through so many steps. They've fi nally completed the adoption and now they're waiting for the visa offi ce." The delays, which Green says can be up to a year, are especially diffi cult because the child usu- ally stays abroad while waiting for citizenship. Green believes the longer wait times are the result of procedural issues in Canada. With the di- rect citizenship route, parents go through two steps once they fi nalize the adoption. The fi rst in- volves proving that the parent is a Canadian citizen, while the sec- ond involves validating that the adoption is legitimate. It's step one that's getting bogged down at a citizenship offi ce in Sydney, N.S., she notes. "That process is while processing times for the fi rst step have increased to fi ve weeks, the department is working on shortening it. Adoptions, however, aren't the only area where Canadi- ans looking to bring relatives here are frustrated by differing processing times. Michael Bat- tista, head of immigration and refugee law at Jordan Battista LLP in Toronto, says that while sponsoring a spouse to become a permanent resident can take as little as six months, Canadi- ans looking to bring parents and grandparents here face a wait of up to three years. He acknowl- edges the logic of giving a higher priority to spouses, but he asks, "Does the gap have to be two years or more?" At the same time, Battista points to continuing complaints about processing times for in- land immigrants — those who are already here and who are seeking sponsorship by a relative. Getting approved through that tion is error free since any prob- lems will lead CIC to send it to one of its local offi ces where de- lays are notorious. In one case, an accountant's error on an income tax form declaring an applicant as single when in fact she was married meant a wait of roughly 19 months. Getting her application moving again "was like moving mountains," Battista notes. For its part, the government says the longer processing times for parents and grandparents are largely a result of the large volume of applications as well as the priority it puts on deal- ing with spousal requests fi rst. In an e-mail, Norris wrote that doing due diligence, including medical and security checks, takes time. As well, she noted that the wait has been decreasing. Now, CIC can deal with 80 per cent of parent and grandparent applica- tions within 46 months, down from 64 months in 2005. 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