Intercountry adoptions: How the best interests of the child are determined through the process

This section provides policy and functional guidance for processing permanent residence applications under the family class in the case of intercountry adoptions. It explains:

• the regulatory requirements for intercountry adoptions to be accepted for immigration purposes.
• the role of officers in processing permanent residence applications under the family class in the case of intercountry adoptions.
• the role of the provinces and territories in intercountry adoptions.
• the steps taken outside the immigration process to determine that an adoption is in the best interests of a child, as per subsection 117(3) of Immigration and Refugee Protection Regulations (IRPR).

On this page

• Best interests of the child
  • Home study conducted by a competent authority
  • Consent of the birth parents
  • Genuine parent-child relationship
  • In accordance with the laws of the place where the adoption took place
  • In accordance with the laws of the sponsor’s place of residence
  • Child trafficking and undue gain

Best interests of the child

Definition

The term “best interests of the child” is a concept found in many legal instruments that deal with children’s issues, such as the 1993 Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention) and the United Nations Convention on the Rights of the Child. The Immigration and Refugee Protection Act (IRPA), the Immigration and Refugee Protection Regulations (IRPR) and the Citizenship Act also make explicit reference to this principle and to the Hague Convention. The Hague Convention contains certain safeguards and requirements to ensure that adoptions take place in the best interests of the child and with respect for their fundamental rights. These requirements include the principle of subsidiarity (consider solutions in the country of origin first), ensuring the proper consents have been obtained (from the birth parents, guardians and, if of a suitable age, the child themselves), making sure the child is adoptable, thoroughly evaluating the prospective adoptive parent(s) (PAP), and matching the child with a suitable family who will be able to meet their needs. The provincial and territorial Central Authorities determine whether these requirements have been met in individual cases.

Evidence

Subsections 117(2) and 117(3) of the IRPR require that provincial and territorial (P/T) Central Authorities, and in the case of a child who resides in a State that is a party to the Hague Convention, the Central Authority of that State, each provide documentary evidence that they have determined that the adoption is in the best interests of the child. In the case of a child who resides in a State that is a party to the Hague Convention, this requirement is satisfied by a letter/notice of agreement (LOA/NOA) issued by the P/T Central Authority, and officers do not have the authority to substitute their own determination for that of the Central Authority. In the case of a child who resides in a non-Hague Convention country, the P/T Central Authority must still assess the best interests of the child and indicate, through a letter of no objection (LONO) to the adoption, whether this has been met. The determination of the best interests of the child is the responsibility of the country of origin and the P/T Central Authority. The officer does not have the authority to look behind this determination. The IRCC officer should accept the LOA/NOA or LONO as conclusive evidence that these requirements have been met.

If a LOA/NOA or LONO was not provided (no provincial/territorial letter has been provided, or a letter of no involvement, or “LONI”, was provided), a major requirement of 117(3) or 117(1)(g) has not been met. IRPR requires that the Central Authority approve the adoption in writing (R117(1)(g)(ii) and (iii)(B); R117(3)(e) and [f]). Without these written confirmations, major requirements of the provisions will be deemed unmet.

While IRPR applies these requirements to intercountry adoptions of children under the age of 18 that were completed outside Canada, the principles and spirit of the Hague Convention must also be respected in cases where the child is to be adopted in Canada. Therefore, in non-Hague Convention cases where the child is to be adopted in Canada (FC6), the requirements involving the best interests of the child under subsection R117(3) must still be taken into account.

Home study conducted by a competent authority

As a pre-condition to an adoption, an assessment of the PAP’s suitability to adopt is ordinarily undertaken by the P/T Central Authority of where they habitually reside.

For immigration purposes, the IRPR requires that in the case of an adoption of a child under 18 completed outside Canada, a home study be conducted by a competent authority in Canada or in the country where the adoption was finalized [R117(3)(a)]. In Canada, competent authorities include the P/T Central Authority and individuals authorized by those authorities, such as accredited social workers.

In accordance with R117(7), a LOA/NOA or a LONO from the province or territory approving the intercountry adoption provides conclusive evidence that a home study has been completed. An officer does not have the authority to question the conclusions or the validity of the home study as it falls under P/T jurisdiction.

For adoptions to be completed in Canada, the IRPR does not require that a home study be conducted, but it is typically required by the P/T Central Authority to assess the eligibility and suitability of the PAP. A LOA/NOA or a LONO confirms that a home study, if required in that P/T, has been completed.

A home study may not be required by the P/T Central Authority if they have no jurisdiction. Provinces and territories may have no jurisdiction in the following instances:

• cases where the adoptive parents are not habitual residents of a province or territory at the time of the adoption; or
• cases where the child to be adopted is over 18 years of age (unless the Article 17 letters have been exchanged between the State of origin and the receiving State before the child is 18 years of age).

If a LOA/NOA or a LONO has been provided, officers do not need to request a copy of the home study.

If a LOA/NOA or LONO was not provided, a major requirement of R117(3) or R117(1)(g) has not been met. IRPR requires that the Central Authority approve the adoption in writing (R117(1)(g)ii and iii)(B); R117(3)(e) and [f]). Without these written confirmations, major requirements of the provisions will be deemed unmet.

However, if the officer receives evidence that the requirement for a home study under R117(3)(a) has not been met after receiving the LOA/NOA or LONO, the officer shall suspend processing and provide the evidence to the P/T Central Authority, as per R117(8). Processing of the application shall be suspended until the P/T Central Authority confirms or revises its statement.

See the provincial notification letters PDI for further information on the requirements and types of notification letters issued by the P/T Central Authorities.

Consent of the birth parents

In all cases of applications for permanent residence involving an adopted child or child to be adopted, the free and informed consent of the birth parents must have been provided to the responsible adoption authorities [R117(3)(b)].

As per subsection R117(7), the LOA/NOA or the LONO from the P/T Central Authority is conclusive evidence that the requirement for the consent of the birth parents have been met.

If a LOA/NOA or LONO was not provided, a major requirement of R117(3) or R117(1)(g) has not been met. IRPR requires that the Central Authority approve the adoption in writing (R117(1)(g)ii and iii)(B); R117(3)(e) and [f]). Without these written confirmations, major requirements of the provisions will be deemed unmet.

If after receiving the LOA/NOA or LONO, the officer receives evidence that this requirement under R117(3)(b) has not been met, the officer shall suspend processing and provide the evidence to the P/T Central Authority, as per R117(8). Processing of the application shall be suspended until the P/T Central Authority confirms or revises its statement.

If after receiving the LOA/NOA or LONO, the officer has evidence that only one of the birth parents gave consent, when the consent of both parents is required under the law of the State of origin, the same process as above would apply.

Genuine parent-child relationship

As per subsection R117(7), except in the case of an adoption that was entered into primarily for the purpose of acquiring any status or privilege under the Act, the LOA/NOA or the LONO from the P/T Central Authority must be taken as conclusive evidence that the requirement in R117(3)(c) is met, in applications involving intercountry adoptions that took place when the child was under 18 years old.

If a LOA/NOA or LONO was not provided, a major requirement of R117(3) or R117(1)(g) has not been met. IRPR requires that the Central Authority approve the adoption in writing (R117(1)(g)ii and iii)(B); R117(3)(e) and [f]). Without these written confirmations, major requirements of the provisions will be deemed unmet.

In the case of the adoption of a child under 18, paragraph R117(3)(c) requires that an adoption create a genuine parent-child relationship. R117(3)(c) does require that, as per the provision of “adoption” under R3(2), the court order sever the pre-existing legal parent-child relationship. An adoption that creates both a legal parent-child relationship and severs the legal pre-existing one is called a “full adoption,” as opposed to a “simple adoption” which only creates a legal parent-child relationship without severing the pre-existing one. Canada does not recognize simple adoptions. Therefore, only a “full adoption” would meet the R3(2) interpretation of adoption, where a “simple adoption” would not satisfy this interpretation.

If, after receiving the LOA/NOA or LONO, the officer receives evidence that this requirement under R117(3)(c) has not been met, the officer shall suspend processing and provide the evidence to the P/T Central Authority, as per R117(8). Processing of the application shall be suspended until the P/T Central Authority confirms or revises its statement.

The other requirement in paragraph R117(3)(c) is that the adoption must also create a genuine parent-child relationship in fact. In considering whether they have evidence to provide to the Central Authorities, officers should turn their mind to whether, in reality/fact, the individual in question will take on the role as a parent to the child.

It should also be noted that the IRPR does not require severance of the “factual” relationship with the previous/biological parents. A factual relationship is a real, lived connection that exists in reality and in practice through shared experiences or history, while not necessarily existing in law. The child may continue to have a relationship with the birth parents and with any former siblings or relatives. The officer’s analysis should focus on whether the adoption has created a genuine parent-child relationship between the child and the adoptive parents.

In the case of an adult adoption that took place when the child was over 18, paragraph R117(4)(b) requires that a genuine parent-child-like relationship existed before the child reached the age of 18 as well as at the time of the adoption. IRCC officers are responsible for assessing this criterion and may request additional evidence from the applicant to prove that this requirement is met.

In accordance with the laws of the place where the adoption took place

The LOA/NOA or the LONO from the province or territory’s Central Authority issued in the context of intercountry adoptions is conclusive evidence that the requirements of R117(3)(d) have been met.

Each country has its own requirements and procedures for intercountry adoptions. The submission of a valid adoption order issued by the competent authority is satisfactory evidence that the applicable foreign legal adoption requirements have been met unless there is some information to the contrary.

Where a LOA/NOA or a LONO from a province or territory is not issued by the Central Authority because the adoption did not comply with the laws of the country where it occurred, the application may be refused on the basis that the requirements of R117(3)(d) have not been met, and therefore the child cannot be considered a member of the family class by virtue of the adoption.

There are circumstances where an intercountry adoption may not comply with the laws of the country where it took place, such as where:

• the requirements of adoption laws are not strictly followed; or
• the country does not authorize international adoptions or adoptions in general.

If after receiving the LOA/NOA or LONO, the officer receives evidence that the intercountry adoption does not comply with the laws of the country where it took place, the officer shall suspend processing and provide the evidence to the P/T Central Authority, as per R117(8). Processing of the application shall be suspended until the P/T Central Authority confirms or revises its statement.

In Québec, to give legal effect to non-Hague Convention adoptions completed abroad, the court in Québec must recognize the adoption after the child arrives in Canada. This process does not have any impact on immigration or citizenship processing. Quebec also issues a declaration for the purposes of paragraph 5.1(3)(a) of the Citizenship Act, that the adoption meets the requirements of Quebec law governing adoptions (Déclaration en vertu de la loi sur la citoyenneté). The declaration issued by Quebec should be considered in establishing whether the requirements of 5.1(3)(a) are met.

In accordance with the laws of the sponsor’s place of residence

Paragraph R117(3)(e) requires that adoptions conform to the laws of the place of habitual residence of the PAP, which in the case of intercountry adoptions referred to in this document, is Canada.

When the PAP is habitually resident in Canada, the adoption must comply with the applicable adoption laws of the P/T where the PAP resides. P/T Central Authorities are involved where the adoptive parents habitually reside in Canada when the adoption takes place.

The officer must determine whether or not the adoptive parents were habitual residents of a P/T of Canada at the time of the adoption for the purpose of R117(3)(e) to R117(3)(g), R117(g)(ii) and (iii), and R117(4)(a). Where the officer has any doubt as to whether the adoptive parents are considered residents of a P/T of Canada at the time of the adoption and thus whether they are subject to P/T adoption laws, they must seek confirmation by contacting the P/T Central Authority.

When determining which P/T Central Authority to contact, officers may refer to the sponsor’s current address or a previous address. P/T Central Authority contacts are listed here: Canadian Central Authority contacts.

For more information on habitual residence and the Hague Convention, please see the Note on Habitual Residence and the Scope of the 1993 Hague Convention (PDF, 9.8 MB).

If after receiving the LOA/NOA or LONO, the officer receives evidence that the intercountry adoption does not comply with the laws of the country where it took place, the officer shall suspend processing and provide the evidence to the P/T Central Authority, as per R117(8). Processing of the application shall be suspended until the P/T Central Authority confirms or revises its statement.

Child trafficking and undue gain

Paragraph R117(3)(g) requires that in the case of an intercountry adoption of a child that took place in a country not party to the Hague Convention, that there is no evidence that the adoption is for the purpose of child trafficking or undue gain within the meaning of the Hague Convention.

As per R117(7), the LONO from the P/T Central Authority is conclusive evidence that this requirement has been met.

If an officer has evidence that child trafficking has taken place or that there was undue gain in the process (a child was sold or improper financial gain took place), after a LONO has been issued, the officer shall suspend processing and provide the evidence to the P/T Central Authority as per R117(8). Processing of the application shall be suspended until the P/T Central Authority confirms or revises its statement.