Date: 19980714
Docket: A-859-96
CORAM: MARCEAU J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
BANTA SINGH GILL
Appellant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
MARCEAU J.A.
[1] This is an appeal from a decision of the Trial Division in which the following "serious question of general importance" was certified for determination by this Court, pursuant to subsection 83(1) of the Immigration Act:
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Does Mr. Justice Hugessen's statement in Singh v. M.E.I., [1990] 3 F.C. 37 (C.A.), that an enquiry into whether there has been an adoption, in accordance with the laws of India which created a relationship of parent and child so as to make the adoptee the sponsor's son, should be directed more to historical fact than to present status, envision or permit a review of the nature and quality of the relationship between the adoptee and his sponsor at a point in time a significant period of time after the adoption ceremony? |
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[2] As I will explain below, in my view the certified question as worded does not clearly outline the real issue proposed on appeal, but when placed in the context of both Singh and the case at bar, it will be fully understood.
[3] The appellant is a landed immigrant of Canada and lives in south-central British Columbia. He and his wife have two daughters, but being anxious to have "a son to carry on the family name," to support him in his later years and to inherit his farm lands, he decided to adopt a grandson of his deceased brother in India. To this end, a "giving and taking ceremony" was performed in India in July 1991, allegedly in accordance with the Hindu Adoptions and Maintenance Act 1956, with an individual representing the appellant under a power of attorney. In October 1991, the appellant provided an undertaking of assistance to his "adopted son," as a member of a family class, to support the latter's application for landing in Canada. The application, however, was formally rejected by letter dated June 23, 1994. The appellant, as sponsor, appealed but the Immigration and Refugee Board, Appeal Division, ("Immigration and Refugee Board" or "Board") upheld the rejection. The Board agreed with Immigration officials that there had been no intent to transfer the adopted son from the family of his birth to the appellant. It followed that the Hindu Adoptions and Maintenance Act 1956 had not been complied with, since paragraph 11(vi) of that Act requires:
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11. In every adoption, the following conditions must be complied with: |
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(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth [or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption. |
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[4] In coming to its determination that the requisite intent was lacking, the Board, as had the visa officer in New Delhi, India, relied on interviews with the appellant and his adopted son conducted well after the giving and taking ceremony had taken place. Those interviews had considered the nature of the communications between the appellant and his adopted son, the degree of support the appellant had provided to his adopted son, the knowledge they had of each other's problems and the son's continuing relationship with his natural mother. Were these considerations appropriate in determining whether there was an intent, at the time of the adoption ceremony, to transfer the adopted son from his biological family to the appellant? The learned trial judge thought that they were. His conclusion was based on his understanding of Hugessen J.A.'s words in Singh to mean that one had to examine both whether there had been a valid adoption in accordance with the laws of India, and, if that is the case, whether this adoption resulted in the creation of a parent-child relationship within the meaning of the Immigration Act, where the term "adopted" in subsection 2(1) of the Regulations to the Act was defined, in the relevant year prior to 1992, as:
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"adopted in accordance with the laws of any province of Canada or of any country other than Canada or any political subdivision thereof where the adoption created a relationship of parent and child". |
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The trial judge's interpretation of the position purportedly adopted by Hugessen J.A. in Singh had previously been accepted by other judges of the Trial Division, notably in Minister of Citizenship and Immigration v. Patel (1995), 90 F.T.R. 234, and again in Minister of Citizenship and Immigration v. Chaman Jit Sharma (1995), 101 F.T.R. 54, and even more recently in Canada (Minister of Citizenship and Immigration) v. Edrada (1996), 108 F.T.R. 60, where MacKay J. wrote, at page 64:
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The definition of "adopted" in s. 2(1) contemplates a two step process in which a determination must be made, first whether foreign adoption laws have been complied with, and second whether a relationship of parent and child is created. |
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[...] In order to establish an adoption for the purposes of that definition, it is necessary to demonstrate the existence of a relationship of parent and child, in addition to compliance with applicable adoption laws. |
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This approach, however, apparently was not universally followed; the Board appeared to be still reticent, as shown by the very decision under appeal, and doubts remained. Hence the question put to the Court, the importance of which is quite obvious.
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[5] I do not think it is possible to give a simple and straightforward answer to the question as certified. Insofar as I can follow and understand the implications of the Singh decision, in my view it has led to the development of two different lines of reasoning. And this must be clearly appreciated at the outset.
[6] The issue before the Court in Singh was whether there had been, prior to the child's thirteenth birthday, an adoption in accordance with the laws of India creating a relationship of parent and child so as to make the adoptee the sponsor's son. The issue arose because the registered adoption deed submitted was dated after the child's thirteenth birthday, although the adoption was alleged to have taken place many years before. It was clear then that to resolve the issue, it was necessary to look back and examine the situation before the child had reached his thirteenth birthday, or, in the words of Hugessen J.A. in the oft-quoted passage, to look more at historical fact than the present status. Such statement could very well be taken, if used out of context, as indeed it often was, as confirming decisions of the Immigration and Refugee Board, which were to the effect that the legal act of adoption was the sole element to be considered, the nature or quality of the relationship between the parent and adopted child following the adoption being of no concern.1 The situation was so problematic apparently that, to counteract the impression that this Court had validated the narrow approach of the Immigration and Refugee Board, the definition of "adopted" in the Regulations was amended on March 27, 1992, to mean:
"...a person who is adopted in accordance with the laws of a province or of a country other than Canada or any political subdivision thereof, where 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 or gaining the admission to Canada of any of the person's relatives".
[Emphasis added]
[7] However, Hugessen's statement with respect to historical facts was not made in isolation. It was made in the course of long reasons in which he insisted that foreign law was not involved in and by itself in certifying the admissibility of a sponsored application for landing by an adopted child. The problem was one of Canadian law and the definition of adoption in the Regulations, which required that a relationship of parent and child be created, was the dominant governing factor. It is for this reason, I think, that Singh was the starting point of another reaction which ran contrary to the Immigration and Refugee Board's position and gave rise to the two-step approach developed by the Trial Division judges and reiterated by the trial judge herein.
[8] With that in mind, let us go back to the certified question.
[9] Can it be said that Hugessen J.A.'s statement, as quoted in the certified question, "envision[s] a review of the nature and quality of the relationship between the adoptee and his sponsor at a point in time at least several years after the adoption ceremony"? Of course not. That could not have been what Hugessen J.A. had in mind, nor was it the issue in Singh. Does it permit such a review? What can be said here is that it does not prohibit reliance on the sort of material considered in this case which relates to facts posterior to the time of the adoption. Hugessen J.A. certainly does not purport to limit the broad jurisdiction of the Immigration and Refugee Board to consider such evidence as may appear to it as "credible and trustworthy and necessary for dealing with the subject matter before it." It is true that the Board relied on post-adoption interviews to find that the law of the foreign country had not been complied with on the basis that the required intent to transfer the child from his birth family to his family of adoption was lacking. But that is quite acceptable and warranted. Intent is generally inferred from conduct whether before, during or after the fact. If the rebuttable presumption of intent established by another section of the Hindu Adoptions and Maintenance Act 1956, section 16, for use in Indian courts is not applicable in Canada as it is merely a procedural rule, the Board's use of the content of the interviews and the inference it drew from it were certainly not unreasonable.
[10] These observations are sufficient to give a positive answer to the certified question so as to support the decision under appeal. But considering the reasons of the learned trial judge, it is not a complete answer to the concern that led to the question's formulation. The real question the trial judge had in mind is, I am sure, whether Hugessen J.A.'s comment could be interpreted as opposing the two-step approach to validate adoptions for sponshorship purposes accepted by many Trial Division judges and concurred in expressly by the judge in the case at bar, even if the decision he was reviewing had not gone beyond the first step. It is obvious to me that it could not. Not only was Hugessen's comment unconcerned with the development of a two-step approach (the circumstances did not require it), but the comment was made in the course of reasons which, indirectly but nevertheless strongly, supported such a view of the law. And, in my judgment, it can hardly be doubted that this two-step approach is the only acceptable one. We are talking about the Canadian sponsorship of a foreign adopted child as a family member. It is logical that we be concerned, not only with proof of the legality of the foreign adoption, but also with proof of the creation of a genuine parent-child relationship without which the adopted individual could not be seen as an authentic family member.
[11] On the whole, therefore, I believe that the certified question can be answered in the affirmative, albeit with qualification. But, in any case, I have no doubt that the appeal should be dismissed.
"Louis Marceau"
J.A.
"I agree.
A.M. Linden, J.A."
"I agree.
J.T. Robertson, J.A."
Date: 19980714
Docket: A-859-96
OTTAWA, Ontario, Tuesday, July 14, 1998.
CORAM: MARCEAU J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
BANTA SINGH GILL
Appellant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
J U D G M E N T
[1] The appeal is dismissed.
"Louis Marceau"
J.A.
Date: 19980714
Docket: A-859-96
CORAM: MARCEAU J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
BANTA SINGH GILL
Appellant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Heard at Vancouver, British Columbia, on Tuesday, June 23, 1998.
Judgment rendered at Ottawa, Ontario, on Tuesday, July 14, 1998.
REASONS FOR JUDGMENT BY: MARCEAU J.A.
CONCURRED IN BY: LINDEN J.A.
ROBERTSON J.A.
FEDERAL COURT OF APPEAL
Date: 19980714
Docket: A-859-96
BETWEEN:
BANTA SINGH GILL
Appellant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
__________________
1 Hence, in Banga v. M.E.I. (1987), 3 Imm. L.R. (2d) 1 (I.R.B., Appeal Division), the Board held, at page 10, with regard to a sponsored application for landing of the appellant's "purportedly adopted daughter" from India, pursuant to the Hindu Adoptions and Maintenance Act 1956:
The validity of an adoption must be proved. However, once the validity of the adoption is established, the parent and child relationship arises by operation of law and is irrebuttable. The Union Parliament has created it. The moment a valid adoption ceremony is completed, the child does not become the natural child of the adoptive parents; the child could never be that. However, the child is, from that moment, deemed at law to be the child of the adoptive parents. The words "be deemed to be" in this section could easily be replaced with "then is for all intents and purposes at law" with this section suffering no alteration in meaning or consequence thereby.
The parent and child relationship is established by the act of adoption and not by any external loving or caring acts of the adoptive parents. This same adoption legally severs the child's ties with the child's natural parents. [Emphasis added]
Also, in Shergill v. M.E.I. (1987), 3 Imm. L.R. (2d) 126 (I.R.B., Appeal Division, the Board, per Mawani, Vice-Chairman, held, at pages 129-130: In the board's view, this element of intent merits further examination. Once it is conceded or found in a particular case that there was a giving and taking ceremony, certain presumptions must follow, namely, that the parties went through the ceremony because one party wished to give in adoption and the other wished to adopt. One may well ask why else would two competent parties consciously go through an adoption ceremony if one party did not intend to give in adoption and the other to adopt? Their motive in doing so is in the board's view irrelevant. It is the intent to transfer that is relevant. The concept of a "dishonest adoption" as expressed by the visa officer in his statutory declaration [...] implies a dishonest motive and is in the board's view an erroneous application of the law. The board is particularly cognizant that there is no parallel provision to Reg. 4(3) in adoptions, i.e., there is no concept of "adoption of convenience" as there is of "marriage of convenience" in the Immigration Act, 1976 or the Immigration Regulations, 1978.
And again, in Bashir v. M.E.I. (1989), 9 Imm. L.R. (2d) 206 (I.R.B., Appeal Division), the Board held, at page 209:
According to the Immigration Appeal Board's decision in Banga [supra] and Sandhu [Sandhu v. Canada (Minister of Employment & Immigration), November 13 1987, 87-9066 (Imm. App. Bd.)], with which we agree, once there is a valid adoption, a parent and child relationship is created automatically by operation of the governing Indian law.
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