Hurd v. Canada (Minister of Citizenship and Immigration), 2003 FCT 719

Date: 20030609

Docket: IMM-2279-02

Neutral citation: 2003 FCT 719

BETWEEN:

                                                                 REBECCA HURD

Applicant

                                                                                 and

                               THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                            REASONS FOR ORDER

LEMIEUX J.:

A)         INTRODUCTION AND BACKGROUND

[1]                 Rebecca Hurd (the "applicant") is a Canadian citizen, born in Kenya who was landed in 1991. In this judicial review application, she challenges the April 2, 2002 decision of the Appeal Division of the Immigration and Refugee Board (the "tribunal") dismissing her appeal from the denial on August 30, 2001, by a visa officer at the High Commission in Nairobi, Kenya, of an application for permanent residence made by her two adopted twin daughters, Zebera and Eunice Njilithia, born in August of 1982, which she sponsored.

[2]                 The twins were legally adopted by the applicant on April 30, 1999. Their sponsored application for permanent residence was received later that year.

[3]                 The visa officer found the adoption did not comply with foreign law, the adoption had not created a genuine relationship of parent and child and the twins had not demonstrated the adoption had not been performed to gain their admission into Canada.

[4]                 The tribunal found the adoption was performed in accordance with foreign law but was not satisfied, on the balance of probabilities, it had created a genuine relationship of parent and child. Having made that determination, the tribunal said it need not determine whether the adoption was performed for the purpose of gaining their admission to Canada.

B.         THE TRIBUNAL'S DECISION

[5]                 In assessing the genuineness of the parent/child relationship, the tribunal applied the factors set out by the Appeal Division's decision in Guzman v. Canada (M.C.I.), (1996), 33 Imm.L.R. (2d) 28, which include but are not limited to:

(a)         motivation of the adopting parents;

(b)         to a lesser extent the motivation and conditions of the natural parents;

(c)         authority and suasion of the adopting parent(s) over the adopted child;

(d)         supplanting the authority of the natural parent(s) after adoption;

(e)         relationship of the adopted child with the natural parent(s) after adoption;

(f)          treatment of the adopted child versus the natural children by the adopting parent(s);        

(g)         relationship between the adopted child with the natural parent(s) before the adoption;

(h)         changes flowing from the new status of the adopted child such as records, entitlements, etc. and including documentary acknowledgement that the child is the son or daughter of the adoptive parent(s); and

(i)          arrangements and actions taken by the adoptive parent(s) as they relate to caring, providing and planning for the adopted child.

[6]                 The following are the reasons of the tribunal for finding the non-existence of a genuine relationship between the applicant and her two legally adopted twin daughters:

I find the appellant's motive for adopting the applicants was to help her sister. The appellant stated the motive for the adoption was that her widowed sister had little income and the appellant decided to help by adopting two of her five children. The applicants' father died in the late 1980s. The appellant testified she was close to the applicants when they were young until she left Kenya in 1991.

I find further the appellant waited until her own children were grown and established before adopting the applicants. The appellant lives alone and has three biological children ranging in age from 27 to 29 years. After arriving in Canada in 1991 she testified she became financially established and sent monies to her sister to help her financially. She decided to adopt the applicants in 1996 after her own children had become independent and she had completed her responsibilities as a mother.

I also find the appellant is a caring aunt who wanted to help her sister and her sister's children. She testified another motive adopting the applicants was to provide them with an education since they were not attending school while at home. The appellant did not want the applicants to start life without a good education. Although this might in some cases indicate a genuine relationship of parent and child, in my opinion this action is consistent with the appellant's role as a caring aunt who decided to help her sister's family.

The applicants continued to live with their mother after the adoption was completed in 1999. In August 2001, in order to attend school, the applicants moved to Nairobi where they live in a house rented by the appellant. The appellant has provided no evidence of her authority in raising the applicants during the time they lived with their biological mother. Although there is some indication of direction given by the appellant in the care of the applicants in the year 2000, in my opinion this direction is given as an aunt and not as a mother.

Based on the above, on a balance of probabilities the appellant has not established the adoption created a genuine relationship of parent and child. [emphasis mine]

C.         The Legislation

[7]                 The current definition of "adopted", enacted in 1993, is contained in subsection 2(1) of the Immigration Regulations (the "Regulations") and reads:

[8]                 Before the change in the Regulations in 1993, the definition of "adopted" was contained in section 2 of the Immigration Regulations, C.R.C. c. 940 and was defined as follows:

[9]                 As is seen, the 1993 amendments to the definition of "adopted", added a requirement the adoption creates a genuine relationship of parent and child. The amended definition also specified "adopted" did not include a person who is adopted for the purpose of gaining admission to Canada.

D.        THE ISSUES

[10]            The applicant raised two grounds for setting aside the tribunal's decision. First, Rebecca Hurd's counsel argued the tribunal misinterpreted the phrase "the adoption creates a genuine relationship of parent and child, but does not include a person who is adopted for the purpose of gaining admission to Canada..." as found in subsection 2(1) of the Regulations.

[11]            This first argument turns on the proper notion of what constitutes creating "a genuine relationship of parent and child". The applicant argues the tribunal adopted a static perspective which requires there exists a fully developed parent-child relationship between the applicant and her adopted twin daughters at the time of the application for permanent residence in Canada. Such a view, according to the applicant, runs contrary to common sense where there is an international adoption because the relationship between the parent and child will not have the opportunity to fully develop until the parent and child can be together as a family. This view is also contrary to Citizenship and Immigration Canada's own handbook entitled "International Adoption and the Immigration Process (1997)". Under the heading "Who May be Sponsored", it is written:

The application for permanent residencewill be approved if the visa officer believes there is a genuine parent-child relationship being created as a result of the adoption.

[12]            In support of her argument, the applicant relies upon Justice Dubé's decision in Perera v. Canada (M.C.I.), [2001] F.C.J. No. 1443.

[13]            As a second ground of challenge, the applicant says the tribunal ignored the evidence she tendered on appeal. Most, if not all of the applicant's written submissions, reached back to the interviews the visa officer held with the twins in August 2001. She argued the interviews were unfair for a number of reasons.

[14]            However, during oral argument, counsel for the applicant focussed on the testimony she gave before the tribunal and in her affidavit in support of her judicial review proceeding. She argued the tribunal ignored the evidence she gave on (1) what motivated her to adopt the twins - Kenyan cultural values, large families and her desire to want another family now that her own children were grown up; (2) her evidence that after the adoption in 1999, she took all of the responsibility for their education and welfare while they were in boarding school in Meru, the town where they were born and where their natural mother and siblings live; (3) her control of the twins' lives when they moved to Nairobi in August 2001 and where they are still residing; and (4) the fact she communicates with her adopted daughters several times a month.

E.         ANALYSIS

(a)        The standards of review

[15]            Two questions or issues are raised by the applicant: (1) whether the tribunal misinterpreted the statutory test in subsection 2(1) "the adoption creates a genuine relationship of parent and child" and (2) whether the tribunal ignored the applicant's evidence.

[16]            The first issue raises a question of law calling for the correctness standard (see Pushpanathan v. Canada (M.C.I), [1998] 1 S.C.R. 982, at 1019.

[17]            The second issue falls within the parameters of paragraph 18.1(4)(d) of the Federal Court Act because it is an allegation the tribunal "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it".

(b)        Discussion

[18]            I deal with the second ground of review first and I have no hesitation in rejecting it.

[19]            The tribunal applied the Guzman factors and concluded:

(1)        the applicant's motive for adopting her twin nieces was to help her sister;

(2)        after their adoption in 1999, her adopted daughters continued to live with their biological mother until 2001, when they moved to Nairobi. The tribunal stated the applicant provided no evidence of her authority in raising her adopted daughters during the time they lived with their biological mother;

(3)        another motive for adopting her twin nieces was to provide them with an education noting this might in some cases indicate a genuine relationship of parent and child; in this particular case this action was consistent with her role as a caring aunt and not as a mother.

[20]            My review of the transcript persuades me that, in respect of these findings, there was ample evidence on which the tribunal could reach the conclusions it did. This evidence consisted of her direct testimony and her cross-examination. She was the only person to testify before the tribunal.

[21]            Her motive for adopting her twin nieces finds foundation in her testimony particularly at pages 18 and 26 to 30 of the certified record.

[22]            As to the lack of parental authority over her adopted daughters, I make reference to pages 24 and 40 of the certified record.

[23]            The conclusion about the applicant being a caring aunt rather than a mother permeates throughout the transcript but I make particular reference to pages 47 and 48.

[24]            I agree with a comment made by counsel for the respondent concerning the new material which is contained in the applicant's affidavit. There is considerable disparity between what the applicant testified to before the tribunal and what is contained in her affidavit filed in support of the proceedings. In terms of evidence, I limited myself to what she told the tribunal.

[25]            In dealing with this issue, I heed the words of Justice Laskin, later C.J.C. in [1974] S.C.R. 875">Boulis v. Canada (M.M.I.), [1974] S.C.R. 875, where he said at page 885:

Its reasons are not to be read microscopically; it is enough if they show a grasp of the issues that are raised by s. 15(1)(b) and of the evidence addressed to them, without detailed reference. The record is available as a check on the Board's conclusions.

[26]            As an aside, I observe counsel for the applicant was wise to deflect focus from the visa officer's decision. An appeal from the visa officer's determination in this case to the tribunal is a trial de novo where new evidence can be presented. (See, Kahlon v. Canada (M.E.I.), [1989] F.C.J. No. 104 (F.C.A.).)

[27]            The matter of the proper legal interpretation to be given to the phrase "where the adoption creates a genuine relationship of parent and child" is perhaps more difficult to resolve because of an apparent conflict between Justice Dubé's decision in Perera, supra, and Justice Nadon's decision a few months later in Canada (M.C.I.) v. Khosa, [2001] FCT 1198.

[28]            Moreover, I observe the tribunal did not discuss this jurisprudence but relied on a previous Immigration Appeal Division decision in Guzman, supra.

[29]            In Perera, supra, the two adopted children were 13 and 14 years old respectively and the sons of Mrs. Perera's younger sister who was having difficulty raising her three children after the death of her husband who was an alcoholic. They had been living with the brother who was getting married and unable to continue to provide for them. The visa officer turned down the sponsorship because he was of the view the children were adopted for the purpose of gaining admission to Canada. The Appeal Division found there was little evidence of a genuine parent and child relationship holding that Mr. & Mrs. Perera were a caring uncle and aunt who wished to bring the boys to Canada so that they may complete their education. The Appeal Division found in that case there had been no attempt to separate them from their natural mother and, indeed, said they continued to live with her and regard her as their mother.

[30]            Justice Dubé set aside the Appeal Division's decision because "it has adopted an improper concept of 'genuine parent and child relationship'." Justice Dubé said this at paragraph 13 of his reasons:

¶ 13       Moreover, the Appeal Division has adopted an improper concept of "genuine parent and child relationship" in suggesting that the adopting parents' desire to bring the boys to Canada and provide them with a better life and education is contradictory to the establishment of a genuine parent and child relationship. Contrary to the Appeal Division's understanding of the definition of the term "adopted", the words "genuine parent and child relationship" do not require that there existed a fully developed parent and child relationship between the adoptive parents and the children at the time of a sponsored application. More often than not, the genuine relationship is created as a result of the adoption. The mere fact that adoptive parents want to bring their adopted children with them to the country where they live is not a presumption that they are attempting to create an adoption of convenience. Canadian parents fly all over the world to find and adopt children. Surely, visa officers will not close the door to these children because genuine parental relationships have not yet been created.

[31]            He expanded his thinking at paragraphs 15, 16 and 17 of his reasons:

¶ 15       Obviously, the two adopted children still live with their natural mother because they are not allowed to join their adopted parents in Canada. Again, if an adoption is to create a genuine relationship between new parents and adopted children, such a creation is not defined by the past but by the future about to happen as a result of the adoption. The International Adoption and the Immigration Process published by the Government of Canada deals with the sponsorship and defines as follows "Who May Be Sponsored":

Children under the age of 19 may be sponsored to come to Canada if they have been adopted outside Canada according to the laws of another country. The application for permanent residence will be approved if the visa officer believes there is a genuine parent-child relationship being created as a result of the adoption. The application for permanent residence may be refused if the visa officer concludes that the real purpose of the adoption is to circumvent immigration requirements.

¶ 16      The words "a genuine parent and child relationship being created as a result of the adoption" are pregnant with significance. They point to a future relationship to be created, not to the confirmation of a present situation. An adoption is a forward looking relationship.

¶ 17       In the instant case, the applicant and his wife have taken deliberate steps to establish a parent and child relationship. First, in 1998, the Pereras went to Sri Lanka to visit their families and found that Mrs. Perera's sister had difficulty rising her three children after the death of her husband. They then decided to adopt their two nephews with the consent of the children's mother. Second, they took the necessary steps in Sri Lanka to complete the adoption of their nephews. Third, they appeared before Citizenship and Immigration Canada and the Ministry for Children Families in British Columbia to complete the adoption. Fourth, Mr. Perera brought considerable financial assistance to the nephew's family. Fifth, they are willing and eager to bring the two children to their home in Canada and to afford them good education and a future in this country. This is not an adoption of convenience but a genuine relationship being created.

[32]            He was referred to Justice Muldoon's decision in Kwan v. Canada (M.C.I.) (2001), 211 F.T.R. 33. Justice Dubé agreed with Justice Muldoon that merely wanting a child did not establish a genuine relationship existed but it did show, however, an intention to create such a relationship through adoption.

[33]            In Khosa, supra, Justice Nadon was also dealing with the definition of "adopted" under the Regulations and was facing an argument the Appeal Division had applied an incorrect test in determining the validity of the adoption at issue.

[34]            He said this of the proper test:

¶ 5       It cannot be doubted, based on the reasons given by the Appeal Division, that it clearly understood the test which it had to apply. At page 5 of the decision, the Appeal Division stated that it had concluded that the adoption in India was valid and that it had created a genuine relationship of parent and child. That is clearly the test required by the Immigration Regulations.

[35]            Justice Nadon then discussed the question which Justice Dubé had certified in Perera, supra, and wrote:

¶ 8       Ms. Shane submitted that I should certify a question of general importance which had been certified by Dubé J. in Perera v. Canada (M.C.I.), [2001] F.c.J. No. 1443, 2001 FCT 1047 (September 25, 2001). At page 4 of his reasons, paragraph 21, Dubé J. certified the following question:

       Counsel for the respondent has submitted a question of general importance to be certified. Since it appears there is no previous decision of this Court directly on point, it is worthy of certification. The question reads as follows:

In section 2.1 of the Immigration Regulations, does the term "genuine relationship of parent and child" refer to the current state of a relationship between an adoptive parent and child when assessed by a visa officer or does it reflect the future state of that relationship?

¶ 9       I indicated to Ms. Shane, after a brief discussion with counsel, that I was not prepared to certify this question. In my view, the question is not a question of general importance and, thus, should not be certified. The answer to the question, in my respectful view, depends on the particular facts of a given case. I further indicated to counsel that had I been the deciding judge in the Perera case, I would not have certified the question which my colleague agreed to certify.

¶ 10       It is obvious that there is no specific answer to the question certified by Dubé J. The answer to the question depends on the date of the adoption and the date on which the visa officer makes a decision on the sponsorship application. All I can say is that in some cases the current state of a relationship between an adopted parent and child could be the determinant factor whereas in other cases the future state of the relationship could be the relevant factor. In other cases, a combination of the current state and the future state might be important considerations. It is for these reasons, that I declined to certify the proposed question.

[36]            I accept what Justice Muldoon wrote in Kwan, supra, as to the three purposes to the amended definition of "adopted" under the Regulations. He wrote the following at paragraph 44:

44       This Court concludes that there are three purposes to the amended definition of "adopted" under the Regulations: to prevent adoptions undertaken to circumvent immigration selection requirements; to prevent adoptions undertaken to sponsor the birth family; and to promote family unity by ensuring that adopted children under the age of 19 who are genuinely in need of parental care are allowed to immigrate to Canada. The statutory test embodies the purposes of the legislation by requiring immigration officials to evaluate the genuineness of the relationship between the adoptive parents and the child before concluding that the child can be landed as a member of the family class.

[37]            I also subscribe to the view taken by Justice Sharlow, then of the Trial Division, in Jeerh v. Canada (M.C.I.) (1999), 167 F.T.R. 315, the amended Regulations creates a three part test, all of which must be satisfied:

(1)        The first condition is met if the children were adopted by the applicant in accordance with the laws of Kenya. That condition was satisfied in this case.

(2)        The second condition is met if the adoption creates a genuine relationship of parent and child between the applicant and the twins. The tribunal found this condition was not met here.

(3)        The third condition is met if the twins were not adopted for the purpose of gaining admission to Canada for themselves or any of their relatives. The tribunal did not comment on this third condition in this case.

[38]            In my opinion, when assessing the issue of whether the adoption creates a genuine parent-child relationship, the visa officer and the Appeal Division, on a de novo review, must consider a wide range of relevant factors which are then weighed to arrive at a specific conclusion of genuineness or not.

[39]            It is trite law a reviewing court such as this one is not to re-weigh the evidence before an administrative tribunal.

[40]            In this case, the tribunal adopted the Guzman, supra, factors to test the genuine character of the relationship.

[41]            I agree with other judges of this Court these factors may, depending upon the facts of a particular case, be relevant in making the assessment, recognizing that other factors, not on the list, may also be relevant depending upon the situation at hand.

[42]            Justice Muldoon in Kwan, supra, specifically referred to the Guzman factors. Justice Blais in Pabla v. Canada (M.C.I.) (2000), 198 F.T.R. 112, referred to some of those factors (specifically parental control) but set aside a determination of no genuine relationship because the Appeal Division did not consider many other facts which showed a genuine relationship such as the child being cut off virtually from all contact with its natural parents, the financial support provided since the adoption and, more importantly, the fact the applicant visited the adopted children twice yearly and stayed with them during his visits. In Gill v. Canada (M.C.I.), [2000] F.C.J. No. 1093, Justice Reed set aside a tribunal decision because the tribunal ignored relevant evidence of parental control.

[43]            In Kwan, supra, in assessing the genuineness of the relationship, Justice Muldoon considered the following Guzman factors as relevant:

(1)        the relationship after adoption of the adopted child with his/her natural parents evidencing the aspect of responsibility and authority over the child; and

(2)        absence or presence of activity of the adopting parent in the child's life after adoption; and

(3)        motivation to adopt.

[44]            I share Justice Nadon's view in Khosa, supra, the assessment of a genuine relationship is not solely to be governed by the future state of the relationship nor is it necessarily governed by the current state of affairs between the adopting parents and the adopting child or children after adoption. It could also, depending upon the facts of a particular case, be a mix between the current state and the future state of that relationship as important considerations.

[45]            The Regulations require a visa officer to assess the genuineness of the relationship before issuing an immigrant visa which supports the proposition that the genuineness of the relationship cannot be all in the future leaving room, however, for an appreciation the relationship may not be fully formed at the time the visa officer makes the assessment or when the Appeal Division, on a de novo review, considers an appeal.

[46]            This view of a possible mix of current and future state of affairs in the relationship accords well with the Guzman factors which look both to the present and the future.

[47]            For these reasons, I do not think the tribunal erred in the approach it took to the assessment of the genuineness of the relationship between the applicant and her adopted daughters.

[48]            For all of these reasons, this judicial review application is dismissed. At the end of the hearing, counsel for both parties said certified questions may be proposed depending upon the findings expressed in my reasons. Accordingly, counsel should exchange proposed certified questions amongst themselves on or before Friday, June 20, 2003. Each counsel may then submit to the Court by Friday, June 27, their reasons why their proposed questions should or should not be certified.

                                                                                                   J U D G E             

OTTAWA, ONTARIO

JUNE 9, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-2279-02

STYLE OF CAUSE: Rebecca Hurd v. Minister of Citizenship & Immigration

PLACE OF HEARING:                                   Vancouver, British Columbia

DATE OF HEARING:                                     February 19, 2003

REASONS FOR Order :                                 Lemieux, J.

DATED:                      June 9, 2003

APPEARANCES:

Mr. Lawrence Salloum                                                     FOR APPLICANT

Ms. Brenda Carbonell                                        FOR RESPONDENT

SOLICITORS OF RECORD:

Salloum Dirk Law Office                                                  FOR APPLICANT

Kelowna, British Columbia

Mr. Morris Rosenberg                                                     FOR RESPONDENT

Deputy Attorney General of Canada