Battista Smith takes Discriminatory Adoption Law to Court

It’s no secret that the adoption process of Canada can be a long and arduous journey. Many laws are put in place to ensure adopted children are placed into families where they will be safe and well cared for. However, sometimes these laws have far-reaching effects that can restrict adopted children from accessing the full benefits of being a Canadian citizen. Battista Smith is challenging the application of one such law that bars certain adopted Canadians from passing on Canadian citizenship to their children. The provision in question comes from the Citizenship Act and concerns the different dates on which a person is adopted, versus the day they become a citizen.


When children are adopted in Canada, they aren’t automatically granted Canadian citizenship. Even though biological children are granted citizenship upon birth, a separate process is required for an adopted child to obtain Canadian status. This means that even though a child can legally be part of a Canadian family, they aren’t considered Canadian citizens.


So what happens when new citizenship legislation comes into force between these two processes? If you were adopted but not a citizen before April 17th, 2009, it may mean that your kids won’t be considered Canadian citizens.


The exception is part of Bill C-37, which introduced the “First Generation Limit” into Canadian law. The limit states that if a person is born outside of Canada and was not a citizen before April 17th, 2009, their children will not be able to gain Canadian citizenship through their parent if the child is also born outside of Canada. Thirteen years on, those children who were adopted but not citizens by April 17th 2009 are running into a road block as they try to start their own families.


We are challenging this requirement under the equality section of the Charter (section 15), claiming that the law discriminates against adopted children by requiring two different dates for adoption and citizenship. Biological children become part of a family and citizens of Canada on the same day. The same is not true for adopted children, who must undertake separate citizenship and adoption processes. The First Generation Limit is just one of the potential consequences that can come out of this discrepancy. To avoid future injustices, we are requesting the law be clarified to presume that the date citizenship is granted will be the date of the legal adoption.


If you have questions about your ability to pass on citizenship to your children, contact Battista Smith Migration Law Group at (416) 203-2899, x. 31 or battista@migrationlawgroup.com.


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