Canada Gazette

To be a member of the family class, a foreign national has to fall within one of the prescribed relationships in subsection 117(1) of the Immigration and Refugee Protection Regulations (IRP Regulations). Under the provisions now in force, the family class is open only to children who are related to the sponsoring parents by reason of a blood relationship or by reason of adoption.

The new concept of guardianship was introduced by the IRP Regulations in June 2002 in recognition that, in some countries, adoptions are not available to children in need of care. These provisions would have allowed the sponsorship of these children by recognizing a dependency relationship in specified circumstances.

Subsection 365(2) of the IRP Regulations establishes the date of coming into force of two regulatory provisions in the family class: the requirements for children under guardianship [paragraph 117(1)(e)] and the consideration of the best interests of the child [subsection 117(5)] as it relates to guardianship situations. These provisions would, if they were in force, allow Canadian citizens or permanent residents to sponsor an application for permanent residence by children under their guardianship if their situation met the prescribed requirements.

Under the prescribed requirements, sponsors would have had to obtain formal approval of the guardianship from the authorities in the child's country of residence as well as a statement from their province or territory of residence approving the foreign guardianship. This statement would have confirmed that these children would receive the same legal protections and social benefits afforded to adopted children under provincial law. Although provinces and territories routinely issue similar statements in international adoption cases, they are unable to provide the same guarantees based on current legislation and child welfare programs where the sponsor is the child's guardian and not the child's legal parent.

When the IRP Regulations came into force in June 2002, the implementation of the guardianship provisions was delayed to allow provinces and territories time to examine the feasibility of implementing these provisions. Citizenship and Immigration Canada (CIC) further postponed the coming into force of these provisions twice since to allow them time to complete their study. Provinces and territories have now indicated that they will not proceed with a change to their legislative and operational basis to implement this concept and could therefore not support the guardianship provisions at this time or in the foreseeable future.

If the IRP Regulations are not amended, the provisions will come into force on April 1, 2005. Since the provinces and territories would not provide the approvals that these Regulations require, it would be impossible for applicants to comply with the Regulations, and CIC would have no option but to refuse every application.

The proposed amendments to the IRP Regulations repeal the regulatory provisions relating to guardianship.

Revocation of these provisions from the IRP Regulations, rather than further delaying their implementation, is more transparent and fair to those families with expectations that they would benefit from those provisions if they were in force. Revoking these provisions avoids unnecessary expenses, refusals and costly litigation for all those concerned.

The requests of children under guardianship are currently covered by the departmental policy on de facto family members, which are assessed under humanitarian and compassionate considerations. The impact on these applicants' entry into Canada is therefore minimal.

Citizenship and Immigration Canada is not disavowing its guardianship policy with the repeal of these provisions and has advised all provinces and territories that it is prepared to revisit the issue should any province wish to do so.

The guardianship provisions were specifically developed to address the cases of children who are not otherwise members of the family class, are considered as orphaned or abandoned, and are living in countries where adoption is unavailable. These provisions were always intended for a limited number of applicants.

Since the guardianship provisions were never in force, there are no pending applications affected by the repeal of these provisions.

Since the coming into force of the Regulations, discussions were held with the provinces and territories. All provinces and territories have informed CIC that they will not participate in the implementation of the guardianship provisions.

Since child welfare is an area of provincial and territorial jurisdiction, the IRP Regulations provide that the sponsor of a child under guardianship must receive a statement from the province or territory approving the guardianship, which also confirms that the child will receive the same legal protection and social benefits as a child under adoption in the province or territory of destination. The provisions of the IRP Regulations related to guardianship cannot be implemented if the provinces and territories of destination do not have in place approval mechanisms for guardianship relationships.

Notwithstanding the repeal of these provisions, CIC will continue to deal with immigration cases where children in need of care are brought into families through guardianships. Currently, officers examine these situations case by case and, where humanitarian and compassionate reasons exist, use their discretion to allow these children into Canada.

In considering the best interests of the child, the Government is committed to respecting the principles in the United Nations Convention of the Rights of the Child. From a public policy perspective, unless equitable treatment, safety and security of foreign minor children in guardianship relationships can be assured, potential negative impacts (and risks) could fall on the child. Since the Government is not in a position to obtain this assurance from the provinces and territories, it would not be in the best interest of the child for these provisions to be implemented.

Sponsors and children whose cultural and religious beliefs and national laws do not allow for adoption but do allow for guardianship are potentially affected by the decision not to implement the guardianship concept (at this time). For such cases, however, the best interest of the child is considered in the context of humanitarian and compassionate considerations and in the interpretation of the Immigration and Refugee Protection Act, as set out in the Objectives and Application section of this Act.

Johanne DesLauriers, Director, Social Policy and Programs Division, Selection Branch, Citizenship and Immigration Canada, Jean Edmonds Tower North, 7th Floor, 300 Slater Street, Ottawa, Ontario K1A 1L1, (613) 941-9022 (telephone), (613) 941-9323 (facsimile).

Notice is hereby given that the Governor in Council, pursuant to subsection 5(1) of the Immigration and Refugee Protection Act (see footnote a) and paragraphs 19(1)(a) (see footnote b) and 19.1(a) (see footnote c) of the Financial Administration Act, proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice and be addressed to Johanne DesLauriers, Director, Social Policy and Programs Division, Selection Branch, Department of Citizenship and Immigration, Jean Edmonds Tower North, 7th Floor, 300 Slater Street, Ottawa, Ontario K1A 1L1 (Fax: (613) 941-9323).

1. The definition "guardianship" in section 2 of the Immigration and Refugee Protection Regulations (see footnote 1) is repealed.

(a) in respect of the sponsor, their conjugal partner, their dependent child or a person referred to in paragraph 117(1)(g); or

(3) The portion of subsection 117(7) of the Regulations before paragraph (a) is replaced by the following:

(7) If a statement referred to in clause (1)(g)(iii)(B) or paragraph (3)(e) or (f) 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 Act, conclusive evidence that the foreign national meets the following applicable requirements:

(8) If, after the statement referred to in subsection (7) is provided to the officer, the officer receives evidence that the foreign national does not meet the applicable requirements set out in paragraph (7)(b) or (c) for becoming a member of the family class, the processing of their application shall be suspended until the officer provides that evidence to the province and the province confirms or revises its statement.

118. A foreign national who is an adopted dependent child or is a person referred to in paragraph 117(1)(f) or (g) shall not be issued a permanent resident visa as a member of the family class unless the sponsor has provided a statement in writing confirming that they have obtained information with respect to the medical condition of the child or of the person referred to in that paragraph.

5. The portion of subparagraph 132(1)(b)(ii) of the Regulations before clause (A) is replaced by the following:

(ii) if the foreign national is a dependent child of the sponsor or of the sponsor's spouse, common-law partner or conjugal partner or is a person referred to in paragraph 117(1)(g), and is less than 22 years of age when they become a permanent resident, on the earlier of

7. Subparagraph 295(1)(a)(ii) of the Regulations is replaced by the following:

(ii) in respect of a principal applicant who is a foreign national referred to in any of paragraphs 117(1)(b) or (f) to (h), is less than 22 years of age and is not a spouse or common-law partner, $75,

(b) a principal applicant who is a foreign national referred to in paragraph 117(1)(b), (f) or (g);

10. These Regulations come into force on the day on which they are registered.