Intercountry adoptions: Concepts and best practices

This section provides key concepts and best practices for intercountry adoptions.

On this page

• Simple adoption
• Full adoption
• Adoptability of the child
• Habitual residence
• Best interests of the child
• Consent
• Relative adoptions
• Guardianship and Kafala
• Adult adoptions
• Suspension or closure of intercountry adoptions by a province or territory
• Countries that restrict intercountry adoptions
• Humanitarian and compassionate considerations

Simple adoption

A simple adoption is one in which the legal parent-child relationship (i.e. legal parentage) that existed before the adoption is not terminated, but a new legal parental responsibility for the child is established for the adoptive parents. Canada does not recognize simple adoptions for immigration purposes, though simple adoptions are included under the scope of the Hague Convention on intercountry adoptions. Some countries of origin that permit simple adoptions under their legislation allow for the conversion of these adoptions to full adoptions in the receiving country. This is also permitted under the Hague Convention, given that the country of origin clearly grants their permission for this conversion, and that consent was given (by such persons, institutions and authorities deemed necessary) for a full adoption.

Full adoption

A full adoption is one in which the pre-existing legal parent-child relationship is terminated, and a new legal parent-child relationship between the child and their adoptive parents is established.^{Footnote 1} A full adoption must terminate the previous legal relationship with the birth parents, but it is not necessary to terminate the factual relationship between a child and their birth parents.

Adoptability of the child

The adoptability of a child is determined according to the laws and procedures of the child’s country of habitual residence (i.e. the country of origin). It is the responsibility of the country of origin to establish whether the child is adoptable.

To establish the child’s adoptability, the country of origin is responsible for making clear the specific requirements, such as a determination of abandonment or evidence of permanency planning, that need to be satisfied before a child may be eligible for adoption. For example, in the case of abandonment or where a child is orphaned, attempts are made to identify whether the child can be placed with relatives before the child is deemed adoptable. In some countries, the child will not be adoptable until they reach a specific age. Note that not all children deemed adoptable under law are abandoned or orphaned. Children can also be eligible for adoption in cases where they have been taken from their parents under child welfare legislation, and in cases where they are voluntarily surrendered by their parents who are unable to care for them.^{Footnote 2}

Habitual residence

The Hague Convention covers intercountry adoptions where the child and the prospective adoptive parent (PAP)^{Footnote *} habitually reside in different contracting countries that are parties to the Convention, regardless of whether the adoption is finalized in the country of origin (where the child habitually resides) or in the receiving country (where the PAP habitually resides). The Convention applies to all intercountry adoptions, including intra-family cases and situations where the PAP has dual citizenship; the determining factor is always the habitual residence of the PAP and not their citizenship or nationality.

It is the province or territory’s (P/T) Central Authority who is responsible for making the determination of habitual residence in the case of an intercountry adoption.

Cases where a domestic adoption is completed when the PAPs habitually reside in a different country than the child are not compliant with the Hague Convention, and in many cases lack the safeguards established by the Convention. These adoptions may lack the involvement of a P/T Central Authority and may be an attempt by the PAP to circumvent the legal requirements for an intercountry adoption in the P/T or State where they habitually reside. 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).

Best interests of the child

The determination of the best interest of the child is the responsibility of the country of origin and the P/T Central Authorities. The determination of the best interests of the child is based on weighing a number of factors set out in the Convention.

See the Intercountry adoptions: Best interests of the child PDI for further information on the best interests of the child.

Consent

Establishing that the proper consents have been obtained for the adoption is the responsibility of the country of origin and the P/T’s Central Authorities. Ordinarily, consent is obtained from the birth parent(s), or legal guardian of the child, after they have been properly counselled and duly informed of the effects of adoption. This allows the adoption authorities to ensure that the consent was given freely and not induced or improperly obtained by financial or other reward.

Consent of the birth parent(s) should not be given until after the birth of the child. This is to ensure that the birth parent(s) have not changed their mind about relinquishing the child for adoption after the child is born. Lastly, in some cases where the child is at an appropriate age and stage of development, the consent of the child may also be necessary.^{Footnote 3}

Relative adoptions

As a condition to sponsorship, even in cases where the adopted child is related to the adoptive parents through their birth family, the pre-existing legal parent-child relationship must be severed, as is required for any adoption as per R3(2) of the IRPR. While the birth parent is no longer a legal parent after the adoption has taken place, the other family members remain as the child’s legal family and may qualify as members of the family class (e.g. sibling of the adopted child).

In cases of intercountry adoption, the same process and legal requirements will apply. Applications for sponsorship under the family class require evidence of a genuine parent-child relationship between the adopted child and adoptive parent, in fact and in law. A home study may not be required for relative adoptions under the law in all provinces and territories.

In some cases, a relative adoption is completed in Canada through a provincial or territorial court, and the corresponding provincial or territorial Central Authority was not involved and issues a letter of no involvement (LONI). In these cases, the adoption order is sufficient evidence that the adoption was in accordance with the laws of the province or territory where it took place. Officers are not authorized to go beyond the court order and request additional information to make the eligibility assessment. Adoption is not required if the conditions of R117(1)(f) apply; the child is automatically a member of the family class.

Guardianship and Kafala

A legal guardian is a person who has the legal authority and the duty to care for the personal interest of a child or adult. Guardianship and kafala do not sever the pre-existing legal parentage between the biological parents and the child, and do not create legal parentage between the child and the guardians. A child may have a legal guardian and still have a legal parent-child relationship with their birth parents. Since guardianship and kafala do not meet the definition of adoption under R3(2), a child under guardianship or a kafala arrangement are not considered a dependent child as it is defined under R2 and do not meet the applicable requirements to be sponsored under the family class.

For more information on guardianship and kafala arrangements, refer to the Humanitarian and compassionate (H&C) considerations: Assessment of guardianship and Kafala arrangements PDI.

Adult adoptions

Subsection R117(4) provides for sponsorship of a child who was adopted in an intercountry adoption situation when the child was 18 years of age or older. In such cases, the following requirements must be met:

• the adoption must have been in accordance with the laws of the country where it took place;
• if the sponsor was habitually residing in Canada at the time of the adoption, the adoption must also have been in accordance with the laws that apply to an adult adoption in the province or territory in which the sponsor was habitually residing;
• a genuine parent-child-like relationship between the adoptive parent and the adopted adult must have existed in fact both at the time of the adoption and before the adopted adult turned 18 years of age;
• the adoption must not have been entered into primarily for the purpose of gaining status or privilege under the IRPA.

In order to be considered a member of the family class under subsection R117(1), a foreign national whose adoption took place when the person is 18 years of age or older must also satisfy the definition of a “dependent child” in section R2.

Applicants may be requested to provide additional evidence to prove that there was a genuine parent-child-like relationship before the applicant turned 18 years of age and at the time of the adoption.

Suspension or closure of intercountry adoptions by a province or territory

In certain circumstances, one or more P/T Central Authorities may decide that a suspension or closure of intercountry adoption programs with a specific country are necessary to protect children and their families in light of unethical or irregular activities in that country. Of primary concern are situations involving child abduction and trafficking, the removal of children from their families without proper parental consent, and situations where prospects for improvements of the child system in the country in the absence of international pressure appear remote.

Provinces and territories have jurisdiction over adoption and can individually suspend intercountry adoptions from certain countries without the consent of other provinces and territories or the federal government. In some cases, the Federal Central Authority works with the provincial and territorial Central Authorities to facilitate, to the extent possible, pan-Canadian decisions to suspend intercountry adoption activity with a given country.

The Federal Central Authority also works with provinces and territories to consider the lifting of a suspension when there is sufficient evidence of reform and safeguards to protect the best interests of children in the country.

When a suspension is imposed on intercountry adoptions from a specific country, provincial and territorial authorities decline to issue letters required for immigration and citizenship processing for approval of a case. These cases should be refused on the basis of non-approval by the province or territory.

For a list of countries on which a suspension or closure is imposed, please see Countries with adoption suspensions or restrictions.

Countries that restrict intercountry adoptions

A list of countries that restrict intercountry adoptions is available at Countries with adoption suspensions or restrictions. These are countries that have restricted intercountry adoptions in some way that impacts intercountry adoptions with Canada. Adoptions involving countries that restrict intercountry adoption may not have been processed as intercountry adoptions in the country of origin and may not have involved the provincial or territorial Central Authorities in Canada.

Humanitarian and compassionate considerations

In exceptional circumstances, foreign nationals who are inadmissible or who do not meet the requirements of the Act or Regulations may make a written request for exemptions from the Act or Regulations on the basis of humanitarian and compassionate (H&C) considerations under subsection A25(1), which takes into account the best interests of the child. Section A25(1) requires delegated officers to examine H&C factors at the applicant’s request, if no restrictions exist. In addition, officers may put the case forward to the appropriate delegated authority to approve the application on the basis of subsection A25.1 on their own initiative and without the applicant having specifically requested it. For further information, refer to the program delivery instructions: H&C considerations.