Adopted: but no Visa.

• Author: Sutherland, John
• Position: Feature on Immigration Law

We had spent years trying to adopt our daughter, Kanesha, my wife's niece. We had filled out mountains of paper, obtained a home study, and complied with all the rules and regulations of the Jamaican Adoption Department. We had hired a local lawyer to help with the adoption process. I had even taken out my Jamaican citizenship in March of 2001. The efforts had finally culminated in a court hearing which ordered the adoption finalized. The laws of Jamaica had been obeyed.

But all this work and effort was dismissed in a single statement by a Canadian Immigration visa officer who declared that in his opinion the adoption did not meet the requirements of the then Immigration Act. Granted, the circumstances in my daughter's case were somewhat different from the bulk of adoptions because, although she had been adopted before her 18th birthday, she had turned 18 before she submitted her application for a permanent resident visa. However, recent changes to Canadian immigration law allow sponsorship of a dependent child including an adopted child up to the age of 22.

The current Immigration and Refugee Protection Act and Regulations define the family class of persons who can be sponsored as including a dependant child adopted under 18 if the adoption was in the best interests of the child. Best interests, s. 117(3) (c) require that the adoption created a genuine parent-child relationship. Section 4 IRPR also states that no one shall be considered an adopted child if the adoption is "not genuine or was entered into primarily for the purpose of acquiring any status or privilege under the Act". These requirements have not changed in substance since our daughter's case as they still allow a visa officer the opportunity to deny the adopted child's application for a permanent resident visa if the officer concludes that the adoption did not create a genuine parent-child relationship or was to acquire any status under the Act. There are no definitions of what this genuine parent-child relationship is. Therefore the visa officer can make any interpretation of the evidence placed before him or her to support his or her decision to either deny or allow the application.

In retrospect, it became clear that the meeting with the visa officer was much more important than we could have imagined. We learned later that when the adopted child attends for an interview, it is up to the child to present evidence to convince the officer. The officer need not request...