r v. DIRECTOR OF YOUTH PROTECTION, 2011 QCCA 1129

Unofficial English Translation Adoption — 11117 2011 QCCA 1129 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL NO: 500-08-000360-109 (505-43-002014-080) DATE: JUNE 15, 2011 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. PAUL VÉZINA, J.A. JEAN BOUCHARD, J.A. A APPELLANT – Petitioner v.

DIRECTOR OF YOUTH PROTECTION AT THE A YOUTH CENTRE RESPONDENT– Impleaded party and THE ATTORNEY GENERAL OF QUEBEC INTERVENER – Intervener JUDGMENT [ 1 ] On appeal from a decision of the Court of Quebec, Youth Division (the Honourable Robert Proulx), rendered October 20, 2010, dismissing his “application for a placement order and for adoption”. [ 2 ] For the reasons of Vézina, J.A., with which Morissette and Bouchard, JJ.A., agree: [ 3 ] ALLOWS the appeal, with costs; [ 4 ] ORDERS that the child X A be placed with Mr. A and Ms.

B for adoption; [ 5 ] AUTHORIZES the child X A to exercise his civil rights under the name of A-B, X; [ 6 ] CONFIRMS the parental authority of Mr. A and Ms. B regarding their child X A-B for the duration of the present order; [ 7 ] DECLARES that X A-B is the “dependent child” of Mr. A and Ms. B since the Moroccan judgment granting kafala, that is, since October 26, 2006. YVES-MARIE MORISSETTE, J.A. PAUL VÉZINA, J.A. JEAN BOUCHARD, J.A. Mr. A.

For himself Mtre Lise Barbusci Roy and Associates For the respondent Mtre Catherine Néron Bernard, Roy (Justice Quebec) For the intervener Date of hearing: February 24, 2011 REASONS OF VÉZINA, J.A. [ 8 ] An extraordinary case, of [ translation ] “infinite sadness” [1] where it is seemingly impossible [ translation ] “to navigate a path through the Kafkaesque maze of applicable processes.” [2] Let us see if this exceptional situation remains inextricable or whether the law allows the heart and reason to be reconciled. [ 9 ] In 1989, the Appelant and his wife (the parents), both Moroccan, were married under the laws of their country.

They have been living in Canada since 1996 and hold dual Moroccan and Canadian citizenship. They reside intermittently in their home in Morocco. [ 10 ] In 2006, in Morocco, they took in an abandoned child and gave him a family. The prescribed procedure was followed and the necessary judgments duly pronounced by the competent courts. [ 11 ] The parents then naturally decided to bring their child to Canada.

To date, however, they continue to be impeded by the Quebec authorities because, according to the family immigration policy, he is not their [ translation ] “dependent child” even though in reality he has been for over five years. [ 12 ] The parents made multiple efforts to regularize the situation, following the advice of first one than another but to no avail. [ 13 ] Their most recent application to the Court of Quebec seeking a placement order for adoption was dismissed, hence the appeal. * * * [ 14 ] The many judgments already rendered both in Morocco and here set out the details of this case in full.

They must be reviewed in order to determine the points relevant to the proposed solution. [ 15 ] The problem arises from the fact that in Quebec adoption is full, meaning it dissolves the existing bond of filiation. In Morocco the procedure does not have this effect and it is referred to as simple adoption. [ 16 ] The issue is whether the child may be adopted under our civil law.

More specifically, we must determine who may consent – if not already done – to the procedure following its course so that, once completed, parents and child will be reunited to live serenely and legally in Canada. * * * [ 17 ] The child was born on [...] 2005 of an unknown father. His mother abandoned him at birth. [ 18 ] In December of 2005, a first Moroccan judgment [3] was rendered that declared the child abandoned and changed his name. We learn much from this minutiously drafted text. [ 19 ] It was rendered under Loi n o 15-01 relative à la prise en charge (la kafala) des enfants abandonnés (

Loi sur la kafala ) [ translation: Act No. 15-01 relating to the taking under guardianship (kafala) of abandoned children (Kafala Act) ], enacted in 2002, [4] which includes the following provisions: [5] [ translation ]

Chapter One: General provisions

Section One: Any male or female child under the age of 18 Gregorian years is considered to have been abandoned if they fall into one of the following situations: - Born of unknown parents or an unknown father and a known mother who has willingly abandoned the child ; [emphasis added] - ...

Section 2: Assuming the guardianship (kafala) of an abandoned child, within the meaning of the present law, means undertaking to protect, educate and support the abandoned child as a father would for his child. Kafala does not confer filiation or the right to inherit.

[ 20 ] The State Attorney presented an application for a declaration of abandonment based on police investigation no 3915/dl dated 30/09/2005, which confirmed that the child was born of an unknown father, that his mother abandoned him, and that he was living in the abandoned children’s

section of the regional hospital. [ 21 ] The judgment noted that [ translation ] “five people were at the hearing”. The mother was excluded, with no mention of her having been served any notice. The child’s name was changed to Y as requested by [ translation ] “the president of the hospital ‘Bab El Kheir’ hospital association,” one of those five people. [ 22 ] The

Loi sur la kafala states that where the mother withdraws, [ translation ] “the guardianship judge assumes the guardianship of abandoned children.” [6] [ 23 ] In October of 2006, the same court rendered a second judgment, [7] an [ translation ] “Order granting the taking under guardianship.” The judge responsible for the affairs of minors confirmed that the parents duly satisfied the requisite conditions under the

Loi sur la kafala and he granted them guardianship (kafala) of the child. [ 24 ] The procedure respected Morocco’s domestic law. The judgment noted that each parent had a [ translation ] “national identity card” and the numbers of both cards were registered. The case therefore had no international overtones; it did not involve entrusting a Moroccan child to foreign nationals. [ 25 ] The judgment designated the parents [ translation ] “as those responsible for the child …, as stipulated in sections 1, 9, 12, 14, 15, 16 and 17 of the [

Loi sur la Kafala ]”: [ translation ] …

Section 17: The guardianship judge renders an order granting kafala of the abandoned child to the person or party who so requests where an investigation indicates that all the requisite conditions under the present law have been satisfied.

The order designates the person charged with the kafala as the dative guardian of the child under guardianship . [Emphasis added] ... [ 26 ] Thus, the guardianship duties, up to this point assumed by the guardianship judge, were taken over by the parents when the kafala was granted pursuant to their undertaking to protect, educate and support the child. [ 27 ] Still in October of 2006, the same court rendered a third judgment [8] granting the parents’ application to [ translation ] “bring the child to Canada, where [they reside]”.

The judge gave the requisite authorization for the child [ translation ] “to rejoin [the parents] and reside permanently outside the Kingdom of Morocco.” [ 28 ] The parents immediately changed the child’s name to that of the father’s.

A Moroccan passport was issued in the name of X A. [ 29 ] In addition, the parents made him their heir under a Tanzil, which was duly homologated by the judge responsible for the affairs of minors: [9] [ translation ] [The parents] grant their child taken under guardianship X A born [...] 2005, the rank of son, entitled to inherit the same portion as would a son from his biological parents, thereby intending to consolidate with this Tanzil the bonds that now unite them to the child, protecting him out of love. [ 30 ] Armed with these judgments, the parents attempted to bring the child to Canada.

They were impeded by the Quebec authorities on the grounds that the kafala, under which the parents are the child’s guardians, take care of the child, and exercise parental authority over him, is not an adoption under the Civil Code , meaning a full adoption that dissolved the bond of filiation. [ 31 ] Faced with this problem, the parents thought it best to return to Morocco and obtain express authorization to file an application with the Quebec courts to regularize the child’s situation. [ 32 ] On their behalf, the Appellant addressed himself to the judge responsible for the affairs of minors as follows: [ translation ] …in order to apply Order Nos 113 and 116 in Quebec, Canada, in support of said application, certain documents must be filed, including the decision issued by the Honourable Judge responsible for the affairs of minors authorizing the Applicant to file an application to regularize the child Y’s situation according to the law in force in Canada, his country of residence, so that the child may benefit from all the privileges granted to children in the Province and to guarantee his rights. [ 33 ] In April of 2007, the fourth Moroccan judgment [10] was rendered.

It added to the authorization previously granted to take the child to live outside Morocco, that of regularizing the child’s situation in his new country of residence. [ 34 ] In September of 2007, the parents submitted an “Application to sponsor, and undertaking” [11] in Canada. The federal immigration agent indicated on the form [ translation ] “Eligibility critieria satisfied”. [ 35 ] This had no effect on the Quebec authorities. The parents therefore decided to apply to the courts.

[ 36 ] Before examining the judgments subsequently rendered, it should be noted that all parties now recognize that the parents are of the utmost good faith and that it was never their intention to circumvent the law, as was suggested at certain moments. [ 37 ] It is written in a first Superior Court judgment: [12] [ translation ] [48] That being said, the argument of evasion of the law cannot stand in the present case because the element of intent is lacking: [citation missing]. [49] A never concealed from the Moroccan authorities the fact that he lived in Canada and that he intended to bring X here to live with him.

He obtained the necessary authorizations under Moroccan law. There is no evidence of bad faith in this regard. A, who is a Moroccan citizen, invokes Moroccan law . [Emphasis added] [ 38 ] In conclusion, the judge recognized the Moroccan judgments and declared them enforceable in Quebec. [ 39 ] The same judge wrote in a second judgment : [13] [ translation ] [29] A has been absolutely sincere and in perfect good faith throughout the process undertaken since 2005, first in Morocco and then in Quebec, to become the guardian of the child X.

His words and attitude have intensified over time, which may appear worrisome at first.

However, the Court sees this more as a sign of his despair at what he perceives to be the authorities’ cold and bureaucratic indifference, when he feels they should be concerned with helping him navigate a path through the Kafkaesque maze of applicable processes . [Emphasis added] [ 40 ] In the judgment impugned in appeal, the Court of Quebec judge confirmed this finding: [ translation ] “There is no doubt as to their good faith.” [ 41 ] Again recently, a second Superior Court judge [14] reviewed the whole matter and reiterated: [ translation ] “The A-Bs are of good faith.” [ 42 ] Good faith is particularly important in adoption matters.

The multiple legal requirements are intended to prevent any child trafficking, any adoption for payment. No procedural irregularity will be excused where there is the least little doubt as to the applicants’ good faith. Fortunately that is not at all the case here. The parents have taken care of the child for five years and have proved their sincerity.

Their almost obstinate efforts in the face of everything attest to their intense affection for their child. [ 43 ] The first Superior Court judgment gave effect to the four Moroccan judgments, despite the opposition of the Respondent and the Intervener. [ 44 ] The judge analyzed at length the institution of kafala under international law. She wrote (her emphasis): [ translation ] [30] In the view of the Court, Kafala is not inconsistent with international public order emanating from the conventions, or even with Quebec civil law.

Based on the evidence, it is an honourable institution that is concerned with the best interests of the child. In this way it is similar to a fundamental principle of our civil law, as expressed in art 33 of the Civil Code of Québec : “33. Every decision concerning a child shall be taken in light of the child’s interests and the respect of his rights.

Consideration is given, in addition to the moral, intellectual, emotional and physical needs of the child, to the child’s age, health, personality and family environment, and to the other aspects of his situation.” [31] Indeed, in 2000, the Court of Appeal of Quebec [ [15] ] declared the Kafala scheme to be similar to the adoption scheme prevalent in Quebec, distinguishing admissibility for adoption from the effects of adoption, the former being governed by Moroccan law and the latter by Quebec law.

The opinion of Mtre Rhallab confirms the similarity between the concept of Kafala as defined in Moroccan law and adoption in the Western meaning of the term. ... [36] Clearly, the child’s status was modified by the granting of Kafala to the parents. A bond was created. This bond can be called a taking under guardianship, a tutorship, lawful custody, or an adoption by analogy to our own scheme, as understood by the Court of Appeal. The bond thus created is not in itself contrary to public order. ... ... [53] The Court of Appeal had a thorough grasp of the issues when it made its decision: [ translation ] “[8] V.

Q. and C. C. were entrusted with the care of four children by the Moroccan authorities and undertook proceedings to adopt them in Quebec. [1] Before the Court of Quebec, Youth Division, the Director of Youth Protection ( the D.Y.P.) successfully challenged this proceeding on the grounds that it contravened public order provisions respecting the application of specific rules governing the adoption of a foreign child .”

[9] The parties present the situation as a moral dilemma. According to the appellants, the effect of the judgment of first instance is to deprive the four children, who were living [2] permanently in Quebec, of all of the advantages that adoption would bring them. According to the respondent, overturning that decision could create a loophole in international child protection mechanisms. … [40] The adopters claim that the children are now domiciled in Quebec and that as a result, the specific rules applicable to the adoption of foreign children domiciled abroad (arts. 563 to 566 C.C.Q.) should be ignored.

In their view, in entrusting them with the children, the Moroccan authorities consented to their change of domicile. What is more, art. 80 C.C.Q. provides that minors are domiciled with their tutors . [41] The trial judge was of the view that such an

interpretation was contrary to the spirit of the law, which reflects the decision to take the jurisdiction of foreign authorities into account in filiation matters; the appellants’ argument would allow the provisions applicable to the adoption of children domiciled outside Quebec to be side-stepped . The change in domicile has no effect in adoption matters. The domicile of the children, within the meaning of the adoption process, remains that of Morocco, their country of origin. [42] Second, the trial judge concluded that Moroccan law did not allow adoption as our laws conceive of it.

To this end, he referred to the opinion of a Moroccan legal advisor that was reported in the judgment of one of his colleagues.” [54] The Court of Appeal also had a thorough knowledge of the effects of Kafala as a means to protect abandoned children without bringing about the effects of adoption on filiation within the meaning of Quebec law: [ translation ] “[47] The legislation has evolved [9] to enshrine the intent of the Quebec legislator to act within the limits accepted by the international community . This intent is expressed in, among other things, two international agreements. [10]

Article 1 of the May 29, 1993 Convention states the following: The objects of the present convention are:

a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law;

b) To establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;

c) To secure the recognition in Contracting States of adoptions made in accordance with the Convention. __________ [ translation ] 9 See the discussion on this subject by Oscar d'Amours, J. in Droit de la famille – 2954 , [1998] R.J.Q. 1317 . 10 Convention on the Rights of the Child , adopted November 20, 1989, by the United Nations General Assembly (Res. # 44/25) to which the Government of Quebec declared itself bound by Decree 1676-91, December 9, 1991; Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (This convention was ratified by Canada on April 12, 1994.

It has not yet been acceded to by Quebec). [48] The Convention also clearly sets out the rights and obligations of each State involved. In particular, it states that the adopting parties shall apply to the competent authorities of in the State of their habitual residence (art. 14). That State evaluates the capacity of the adopting parties and transmits the report to the State where the child resides (art. 15).

The conditions of eligibility for adoption are established by the child’s country of origin (art. 4). [49] Although Quebec has not yet acceded to this convention, it pursues the same objectives, and the conditions it imposes are the same as those set out in the Convention. … [60] This argument is far from obvious. I have already reproduced the decision of the court of first instance of Rabat. It must be concluded that an adoption judgment may be rendered under Moroccan law, but that the effects of such a judgment differ from those under our law.

More than the evidence, statements reported in the facta reveal that a Moroccan adoption judgment does not break the original bond of filiation to establish a new one with the adopting party for religious reasons .

[61] In his factum, the respondent claims that the [ translation ] “protective supervision favoured by Moroccan authorities is very similar to tutorship as defined in art. 177 of the Civil Code ”. With respect, the evidence on the record as constituted shows that this regime is closer to our law in adoption matters, with one exception: the bond of filiation with the biological parents [14] is not broken. As for the rest, we find that the children are entrusted to the adoptive parents on a permanent basis, with all the attributes of parental authority.

It is interesting to note that in the document dated January 16, 1992 concerning the child N. Ch., the responsibilities of the “adoptive parents” are described as follows: [ translation ] “So that they may raise, sponsor, and care for the child as though their own. ” It should also be noted that in all the official Moroccan documents, the translators have used the terms [ translation ] “adoption”: (para. 5: “application for adoption”; para. 9: “have adopted”, “adoptive parents”; para. 23: “with a view to their adoption”).

We are therefore far from tutorship as we know it and much closer to the adoption regime. ” [ 45 ] And the judge concluded: [ translation ] [59] Thus, the Kafala issued in Morocco under Moroccan law is close to adoption within the meaning of Quebec law. [ 46 ] In May of 2008, [16] the Quebec Court rendered a first judgment, still between the same parties. It was rendered by the same judge (the Judge) who would later render the impugned judgment.

He dismissed the parents’ application [ translation ] “to recognize an adoption order delivered outside Canada ”. (Emphasis added). [ 47 ] He wrote that [ translation ] “it is impossible to draw a conclusion about the impact of the Moroccan decisions filed with respect to the bond of filiation between the child and his biological parents.” [17] His refusal was based on the fact that the Moroccan procedure did not dissolve the bond of filiation. He wrote: [translation] [47] The amendment brought to

article 574 compels the Court to ensure there is a connection between the consent and the dissolution of the bond of filiation. Its importance must not be diminished. Specific evidence on this point is required. [48] While it is alleged that the decisions produced constitute consent given in accordance with the law of his domicile, there is nothing to support a finding that they were given for the purposes of an adoption, which knowingly results in the “dissolution of the pre-existing bond between the child and his family of origin.” [ 48 ] However, the Judge did not completely close the door.

The ruling specified that he [translation] “reserves the right of the parties to use any other remedy relating to adoption.” [ 49 ] The parents continued their efforts and, believing it was the right thing to do, returned before the same Moroccan court. [ 50 ] In November of 2008, [18] the judge responsible for the affairs of minors noted that the parents: [translation] “ …asked for an order addressed to the judge responsible for youth in Quebec whereby the judge responsible for the affairs of minors in Béni-Mellal authorizes the above-named applicants and guardians to regularize the situation of the child X A with the Director of Youth Protection of Quebec, and that this authorization be explicit by producing in support of his request a photocopy of Power of Attorney No. 473, Authorization to Take Under Guardianship “Kafala” No. 113 Order No. 56/2007, Civil Status Judgment rendered in File No. 1363, Act of Birth and Act of Substitution “Tanzil” No. 470.” [ 51 ] He granted their request as follows: [translation] Whereas the regulatory situation of the child taken under guardianship concerning his residence outside the Kingdom on Morocco, that is, in Canada Province of Quebec, was resolved by virture of an authorization of the Judge, authorizing the guardians to take him with them outside the country.

In light of the above, this confirms that the child X A taken under guardianship resides in Canada, Province of Quebec, and that said guardians need to regularize his situation in this country. [ 52 ] The parents returned to the Court of Quebec and presented an application for “a placement order and for adoption”. [ 53 ] On October 20, 2010, the Judge dismissed their motion in the decision now under appeal. [ 54 ] The parents of course argued the most recent Moroccan decision, which supplemented the previous one by adding an express authorization to procede in Quebec.

The Judge summed up the parents position as follows: [translation] [51] The Moroccan decisions, in particular Orders 6308 and 5607, rendered by the Moroccan Court after the taking under guardianship must be interpreted as consent to regularize the child’s situation pursuant to Quebec law. Consequently, these orders constitute consent to adopt within the meaning of the Civil Code of Québec . [ 55 ] But he rejected this allegation and refused to consider these judgments as valid consent to adopt: [translation]

[105] The Court concludes that it is impossible to consider the decisions of the Moroccan courts as consent validly given “for the purposes of an adoption that will result in the dissolution of the pre-existing bond of filiation between the child and the filiation of origin,” particularly where an authorization to regularize the situation may not constitute such consent. [106] Let us recall that in this case the child has a mother and that the latter did not consent to the adoption. [ 56 ] Meanwhile, in May of 2009, the Administrative Tribunal of Québec [19] upheld the refusal of the Ministère de l’Immigration et des Communautés culturelles [translation: Quebec Department of Immigration and Cultural Communities ] to allow the child to come to Canada because, according to its regulations, he was not [translation] “an adopted child within the meaning of the Civil Code of Québec ”. [ 57 ] The parents once again applied to the Superior Court for a “motion to institute proceedings to recognize the applicant’s parental authority over the dependent child X (…)”, in response to which the Respondent and the Intervener presented a motion to dismiss, dismissed in a recent judgment. [20] [ 58 ] Denis, J. bitterly deplored this “infinitely sad” situation.

He wrote: [translation] [29] There is something that isn’t working. … [33] [The child] is no longer a statistic; he is a five year old child. … [37] The A-Bs are of good faith. They dreamed of having a child. Without success. They decided to adopt one from their native country, found an abandoned child and made him their own. … [43] As we’ve seen, filiation cannot be dissolved in Morocco. [45] With the greatest regards, this is one of those rare cases [emphasis added] where the law and common sense are at odds.

The law must always be reviewed in such circumstances. [48] A solution that reconciles law and common sense must be found. Indeed, it is the judge’s task to interpret the law with empathy and leniency. [49] Surely there is a way this can be done. Analysis [ 59 ] The parents want to adopt the child so he is entirely theirs and that they can all live happily together in Canada, but it seems that consent of one or another of the players in this drama is missing. Let us consider this. [ 60 ] The child’s father is unknown. It would be impossible to seek his consent. [ 61 ] There is more.

The child has no paternal filiation according to the Moroccan Code de la famille [translation: Family Code ] (moudawana): [21] [translation]

Section 146 Filiation, whether legitimate or illegitimate, produces the same effects regarding the mother.

Section 148 Illegitimate filiation produces none of the effects of legitimate parental filiation regarding the father. [ 62 ] Therefore, in the hypothesis where only the Appellant was adopting, it would obviously not break the bond of filiation as it does not exist. On the contrary, it would benefit the child by compensating for a significant deficiency in a community where patrilineal filiation is paramount. This is clearly seen in the following provision of the Code de la famille : [translation]

Article 145 As soon as the parental filiation of a child of unknown origin is established following an acknowledgment of kinship or a decision of a judge, the child shall become legitimate, shall accede to the filiation of his father, and shall follow the latter’s religion. They shall inherit mutually one from the other; the establishment of paternal filation results in impediments to marriage and creates rights and duties between the father and the child.

[ 63 ] The mother abandoned the child. Without judging this person, about whom we know nothing except her name, we must conclude that she ceased to have any say in decisions regarding the child since then. She was not a party to any legal proceeding. She was not served with any notice. Her consent was not required at any time, even to change the child’s name. [ 64 ] The Appelant argued that it was the same in the religious climate of Quebec not so long ago. Teenage mothers were encouraged to abandon illegitimate children for adoption by a married couple.

Once again, nobody is being judged, we are merely stating the facts and drawing the necessary conclusions. [ 65 ] Today mindsets have changed and fortunately children are rarely abandoned. But the legal consequences are the same. Abandonment is a sufficiently serious reason to deprive someone of parental authority. [22] [ 66 ] And in adoption, the parent who has been deprived of parental authority need not provide consent. [23] [ 67 ] With respect for the poor mother, we could not seek her consent. [ 68 ] The father is unknown; the mother is no longer present.

Therefore, under the Civil Code consent must be sought from the child’s tutor, [24] or, in this case, the parents themselves. [ 69 ] They are the child’s tutors. The

Loi sur la kafala states [25] that: [translation] The order designates the person charged with the kafala as the dative guardian of the child taken under guardianship. And the order granting kafala expressly refers to this provision. [ 70 ] Much was made of the fact that the Moroccan court may revoke the kafala under the following provision: [translation]

Section 29: The parents of the child or one of them may, once the reason for abandonment ceases, apply to the court to recover guardianship of their child. The court will hear a child who has reached the age of discernment. If the child refuses to return to his parents, or one of them, the court will consider his decision taking into account the interest of the child. [ 71 ] Without attempting to interpret Moroccan law, I nonetheless note two things. [ 72 ] Kafala may be granted in various situations where a parent cannot satisfy the child’s needs, due to, amongst others, poverty or illness. [ 73 ] It is understood that in such a case, the

Loi sur la kafala may grant the father or the mother the right to visit their child, in the care of a third person. It also provides that if the situation improves, one or the other parent may take the child back. [ 74 ] If, as is the case here, kafala arises from abandonment and the parent becomes a stranger to the child, it is doubtful that the right to reclaim the child continues to exist.

More so where there has been no contact for five years after the child’s abandonment. [ 75 ] The second is that the court competent to interpret and apply Moroccan law, including the above-cited provision, duly authorized the bringing of the Quebec procedure to regularize the child’s situation. This provision is not the impediment it is purported to be by applying a highly literal and theoretical

interpretation. One need not be more Catholic than the Pope. [ 76 ] Today in fact, the kafala granted is still valid and the parents are the guardians. They may and must make the decisions that they consider best for the child. [ 77 ] Yet another objection was that, in general, the laws of Muslim countries prohibit consent to an adoption that will dissolve the bond of filiation. [ 78 ] It is an error to make this provision based on a religious precept an absolute. In her second judgment, Julien, J. described how this attitude regarding fundamental human rights risked leading to a slippery slope.

I cannot express it any better than she did. Here is her opinion (her emphasis): [translation] [54] The problem with adopting children domicilied in Muslim countries was raised by the Immigration and Refugee Board, (Immigration Appeal Division) (hereinafter “the Commission”). The Court consulted several Commission decisions to verify if the problem had been raised elsewhere in Canada. [55] In Ghazimoradi , 8 an Iranian woman wanted to sponsor her future adopted son domiciled in Iran, a country where adoption is prohibited under Islamic law.

For this reason, a visa agent at the Canadian Embassy in Damascus, Syria, refused her application for a permanent resident visa for the child. _______ 8 Ghazimoradi, Akram v. Canada (Citizenship and Immigration, SAI TA5-15827, Ahlfeld, April 9, 2008 .

[56] Reviewing the agent’s decision, the decision maker, however, felt that the conditions under section 117(7) were satisfied becausethe applicant had obtained a Non Objection Letter from the relevant Minister in Ontario. He specified: “In light of the above factors, I find that this appellant meets the requirements of section 117(7). I find that section 117(7) is a deemingsection, subject to a finding that the intended adoption is not primarily for immigration purposes, for those applicants who cannot meetthe requirements of section 117(1)(g)(iii)(

A) but who still meet the provisions of section 117(1)(g)(iii)(B).

I find that section 117(7) isclear as to its purpose of curing an applicant’s inability to overcome the legal impediments of section 117(1)(g)(iii)(A); that is to say thatnot only is it applicable to international adoptions where the country where the person resides is not signatory to the Hague Conventionon Adoptions, but it also cures the requirement that the person had to have been placed for adoption in the country in which they resideor is otherwise legally available in that country for adoption.” [57] [The parents] could allege from then on that under the federal regulation and as a Canadian resident, he [they] could sponsor achild from a Muslim country if the conditions in section 117(1)(g)(iii)(

B) were satisfied, meaning that if the competent provincialauthorities did not object to the adoption, the sponsorship project could take place despite the fact that the child could not be adoptedunder the laws in his country of origin. [58] This administrative tribunal also issued a similar ruling in Shaibon.9 In that case, the child resided in Sudan where Muslim lawapplies. Canadian residents of Sudanese origin wanted to sponsor the child to adopt him in Canada. Once again, the visa agent refusedthe request, deciding that the child could not be adopted under Sudanese law. _______ 9 Shaibon v.

Canada (Citizenship and Immigration), (IRB). [59] The decision maker referred to the Ghazimoradi10 decision and granted the applicant’s request. In this case, the Ontarioauthorities had also produced a Non Objection Letter within the meaning of subsection 117(7) and, consequently, the conditions weresatisfied. _______ 10 Supra note 8. [60] The Ontario authorities noted in their letter that an adoption worker carried out a home study on the applicants, and the workerrecommended them as acceptable adoptive parents.

They specified in their letter that the Minister agreed with this recommendation. [61] It is useful to cite the pertinent passages from that decision, particularly with regards to the [parents’] complaints about aviolation of [their] constitutional rights: [16] In Al-Shikarchy [Al-Shikarchy, Salam v. Canada (Minister of Citizenship and Immigration) SAI TA5-13169, Band, January 31,2007, para 26], which is one of the cases on which the Minister’s counsel relied, Member Band considered the case where the appellantwas also intending to sponsor a niece who was a citizen of a Muslim country, in this case, Iraq.

In deciding the question whether theapplicant was available for adoption Member Band concluded that: the appellant has not established, on a balance of probabilities, that the applicant has been placed for adoption in Iraq within the meaningof Section 117(1)(g)(iii) of the IRP Regulations or that she is otherwise legally available for adoption in Iraq within the meaning of thatsubparagraph [Al-Shikarchy, Salam v.

Canada (Minister of Citizenship and Immigration)]. [17] However, Member Band went on to state that he would have come to the opposite conclusion if Section 117(7) applied and itwas found at the hearing that the intended adoption was not primarily for the purposes of acquiring any status or any privilege underIRPA within the meaning of Section 117(7) [Al-Shikarchy, Salam v. Canada (Minister of Citizenship and Immigration)]. [18] More recently, in Ghazimoradi [Ghazimoradi, Akram v. Canada (Minister of Citizenship and Immigration), SAI TA5-15827,Ahlfeld, April 9, 2008], Member Ahlfeld examined the issue.

She decided that in the case of an international adoption intended to becompleted in Ontario, where the applicant’s home country or country of residence is not a signatory to the Hague Convention, if thecompetent Ontario authority has stated in writing that it does not object to the adoption, then pursuant to Section 117(7) the adoption isdeemed to have met the requirements set out in Section 117(1)(g)(iii)(A) [Ghazimoradi, Akram v. Canada (Minister of Citizenship andImmigration)].

On this reasoning, Member Ahlfeld allowed the appeal without the need to address the constitutional question raised bythe appellant and his counsel. [19] Ghazimoradi clearly departs from the reasoning in Bhanot [Bhanot, Kamal Kumar v. M.C.I. (SAI TA1-07212), Sangmuah,May 7, 2002 (signed June 6, 2002)], which was decided under the former Immigration Act, and in which Member Sangmuah, relying onand applying the reasoning in Shaw [Shaw, Estella v.

M.E.I. (F.C.A., A-94-89), Hugessen, Desjardins, Décary, September 18, 1991]interpreted the phrase “available for adoption" as meaning that, “at the very least that the prospective adoptee can be legally adoptedunder the laws of the jurisdiction in which he or she lives.” In Bhanot the applicant’s natural mother was dead. It was alleged that hisnatural father had abandoned him and he lived with his maternal grandparents, who were old and had medical problems.

The appellantrelied on Shaw to argue that as no child welfare agency existed in India and all that was required was that the applicant be available foradoption, a position with which the panel did not agree. Member Sangmuah found that the applicant’s circumstances did not establish

that he was available for adoption in India. [20] A similar circumstance exists in the instant case; the applicant is not available for adoption in her country of residence. However, in the applicant’s case, the panel is of the view that Section 117(7) provides a complete answer to the dilemma posed by the absence of adoption mechanisms in Sudanese law and the appellant’s subsequent inability to legally adopt the applicant. As noted earlier, Section 117(7) provides that if a statement referred to in clause (1)( g )(iii)(

B) has been provided to an officer by the foreign national's province of intended destination, that statement is, except in the case of an adoption where the adoption is primarily for the purpose of acquiring a status or privilege under the IRPA , conclusive evidence that the foreign national meets, among other things, the requirements set out in clause (1)( g )(iii)(A) . [21] The requirement in clause (1)( g )(iii)(

A) referred to in Section 117(7) is the requirement that the intended adoptee either has been “placed for adoption in the country in which he or she resides; or that the intended adoptee is “legally available for adoption.” [22] In Ghazimoradi, Member Ahlfeld describes Section 117(7) as a “Deeming Provision.” The panel concurs.

On a clear reading of Section 117(7) where there is a written statement by the competent authority of the province of intended destination that states that the competent authority does not object to the adoption, that statement is deemed to be conclusive evidence that the foreign national, i.e., the applicant, meets the requirements that he or she has either been “placed for adoption in the country in which he or she resides, or that he or she is “legally available for adoption.” The only caveat is that the adoption must not be primarily for the purpose of acquiring a status or privilege under the Act , i.e.

IRPA. Thus, where the intended adoption is found to be bona fide , the presence of a “Non Objection Letter” alleviates against the strict requirement of compliance with Section 117(1)( g )(iii)(

A) and permits inter-country adoption from countries that are not signatory to the Hague Convention on adoption. … [24] In the instant case, the visa post requested a “Letter of No Objection” on the 9 th September 2004. That letter was provided on the 16 th February 2005. The visa post was also in receipt of a “Home Study” carried out on the appellant and his spouse by a Michael Blugerman, M.S.W. The study is dated the 20 th December 2004. The panel observes that the copy of the Home Study that is before her is not sworn as provided for.

Nonetheless, it appears that the Ministry of Children and Youth Services of the Province of Ontario based its decision with respect to whether to issue a Letter of No Objection on the Home Study as submitted to them.

The panel sees no reason to question the bona fides of the Home Study on this basis. … [27] In light of the panel’s analysis and findings with respect to the question of the applicant being legally available for adoption and the applicability of Section 117(7) of the Regulations , the panel finds that the appellant has met the requirements of Section 117(1) ( g )(iii) of the Regulations and would allow the appeal . [ 79 ] The Moroccan judgments were recognized and declared enforceable in Canada by final judgments.

They must be given effect. [ 80 ] Which brings me to an aspect of this case that I do not feel has been sufficiently taken into consideration. In my opinion, this is not really an international adoption. It is rather two parallel procedures, one according to Moroccan domestic law, the other according to the law of Quebec. [ 81 ] When the parents applied to the Moroccan courts, they were exercising a right as Moroccan nationals, a right a simple Canadian citizen does not have.

A different right from that available to persons domiciled in Quebec who wish to adopt a foreign child according to the terms and conditions in the Civil Code , [26] including that of having an adoption granted in another country recognized in Quebec. [27] [ 82 ] The Moroccan courts did not entrust the child to foreign nationals, but to resident nationals, in accordance with the laws of that country.

A Quebec family who wanted to establish themselves in Morocco would not readily accept questioning the adoption of one of their children duly completed under the laws here. [ 83 ] We should not give the Civil Code provisions a scope that causes a person to lose rights attached to their original citizenship they would not have lost when they obtained Canadian citizenship. [ 84 ] It is certainly not always easy to harmonize laws in a federal state, much less so the laws of two countries. But it must be done.

A citizen who lives with this duality on a daily basis rightly expects his situation to be concretely understood and handled in a manner that respects all his rights. [ 85 ] There is in the file an opinion by a Moroccan lawyer that helps conciliate the legal reality there with the one here. Mtre Mohammed Rhallab, “attorney called to the Khouribga Bar, accredited by the Supreme Court” explained: [ translation ] In anthropological terms, filiation is defined as the principle governing the transmission of kinship .

It determines the identity of the individual in society and defines from whom an individual inherits his or her land rights, titles, moral obligations, or in other words, his or her SOCIAL STATUS. Biological kinship is therefore distinguished from social kinship.

… Islam does not prohibit adoption, but it does prohibit the usurpation of the right of biological filiation ; it opens the door to social kinship by assigning to it the term Kafala , which determines the identity of persons taken under guardianship by identifying from whom that person may inherit (by tanzil ) his or her land rights, titles, and (through education) moral values. [ 86 ] Social kinship is not a juridical fact recognized here.

The parents want to regularize their child’s situation in their adopted country by giving him a recognized status, equivalent or almost to that in their native country, so that he is their child here as he already is there. [ 87 ] Once again, if there were the least doubt that these two parallel procedures, in Morocco and in Canada, had not been conducted in the best interest of the child and in complete good faith, it would be necessary to respect to the letter all the measures purposing to secure international adoptions.

But this is not the case. [ 88 ] We must interpret and apply the Civil Code flexibly – while ensuring that its objectives are respected – when international realities must be taken into account, to avoid an aberrant and unjust result. The Court did this in the previously cited case [28] to avoid a solution which would have been shocking and, at first glance, incompatible with human rights. [ 89 ] That situation resembled that of the present case (paragraph previously cited): [ translation ] “[8] V. Q. and C.

C. were entrusted with the care of four children [ [29] ] by the Moroccan authorities and undertook proceedings to adopt them in Quebec. Before the Court of Quebec, Youth Division, the Director of Youth Protection (the D.Y.P.) successfully challenged this proceeding on the grounds that it contravened public order provisions respecting “the application of specific rules governing the adoption of a foreign child.” [9] The parties present the situation as a moral dilemma.

According to the appellants, the effect of the judgment of first instance is to deprive the four children, who were living [2] permanently in Quebec, of all of the advantages that adoption would bring them. According to the respondent, overturning that decision could create a loophole in international child protection mechanisms. … [52] … it is worth reiterating [ [30] ] that the Moroccan authorities fully collaborated with the adoption plans of the couple Q.-C. and that the couple never tried to sidestep established child protection standards; on the contrary, the adopters conducted their plans admirably.

The Appellants’ good faith was obvious.

And the solution was to let them adopt their four children. [ 90 ] Another example of reading down the same provisions is found in ABM. [31] The Court of Quebec allowed the parents, established here, to adopt their Pakistani nephew based on an existing custom: [ translation ] [31] In light of these two documents, we may conclude that, in Pakistan, Islamic law or the "Sharia Act" prohibits adoption between Muslims. [32] On the other hand, Professor Khaleel Mohammed, admitted as an expert witness, informed us that between Muslims, the word "Adoption", under Pakistani law, means "guardianship".

However, he added that in such a case there is no legal provision under which Pakistan may object if the ward leaves Pakistan and changes his name. The “guardianship” judgment obtained by the applicant, he said, only refers to guardianship of the person.

He therefore concluded by stating that this judgment, accompanied by permission for the parents to take the child out of the country, permits the applicant to leave the country with the child and to institute adoption proceedings . [Judge’s emphasis] [ 91 ] In this case, those with a say in the child’s future, the parents and the Moroccan authorities, agree to the adoption. This is sufficient to establish the required consent.

In order to forever eliminate any doubt, this Court confirms the consent given by the parents, as the child’s guardians, and formally declares the child eligible for adoption. [32] * * * [ 92 ] In a similar vein, the Judge noted that the parents did not undergo a psychosocial assessment.” This is required for persons domiciled in Quebec who want to adopt overseas. [33] Once again in my opinion this is not the parents’ situation. [ 93 ] But, the parents, ready to do anything to attain their objective, underwent this assessment.

The expert acknowledged that the parents have “the parental capacity and the personal qualifications to adopt a child.” * * * [ 94 ] At the hearing, there appeared to be – but perhaps I misunderstood –a fear that granting the authorization requested would upset the system. The case is so marginal that this result is highly improbable. [ 95 ] However, it is true that the regulations may be applied more humanistically once the participants’ good faith and the child’s

safety have been verified. And why not? The heart may sometimes reason with reason itself. And the results are better when the two work together. [ 96 ] In any event, the precedent, if any, will be short-lived given that the legislator has heard numerous recommendations from specialists in this matter, as well as the opinions of numerous contributors during the parliamentary committee on the “ D raft Bill:

An Act to amend the Civil Code and other legislative provisions as regards adoption and parental authority” which will considerably relax the rules, following in the footsteps of France and other European countries. The explanatory notes read thus: This draft bill amends the Civil Code of Québec as regards adoptions and parental authority by introducing new forms of adoption and new provisions relating to responsibility for a child.

The draft bill thus provides for open adoption and for adoption in which the bond of filiation with the original parents is not dissolved… * * * [ 97 ] For these reasons, I would allow the appeal as follows: ALLOWS the appeal, with costs; ORDERS that the child X A be placed with Mr. A and Ms. B for adoption; AUTHORIZES the child X A to exercise his civil rights under the name of A-B, X; CONFIRMS the parental authority of Mr. A and Ms. B regarding their child X A-B for the duration of the present order; DECLARES that X A-B has been the “dependent child” of Mr. A and Ms.

B since the Moroccan judgment granting kafala, that is, since October 26, 2006. . PAUL VÉZINA, J.A.