Another case to watch (hard to understand rationale for difference with USA, UK and Australia which allow the practice, when government does not appear to have articulated the reasons):
A major challenge of Canada’s ban on adoptions from several Muslim countries is set to play out in the Federal Court — a move some legal observers say wouldn’t be necessary if the government wasn’t upholding what they call a “discriminatory” policy.
The case, which could be heard as early as April, comes more than five years after the federal government promised to review the ban introduced when the Conservatives last held office. Since then, the Liberal government has refused to say whether that review took place or what it involved, despite repeated inquiries from CBC News.
In 2013, Canada suddenly put a stop to adoptions from Pakistan, arguing Shariah law doesn’t allow for birth ties between a parent and child to be severed and that the Islamic principle of guardianship (kafala) could no longer be recognized as the basis for adoption. The United States, United Kingdom and Australia all continue to allow adoptions from Pakistan, despite Canada’s claim that doing so would violate its commitment to the Hague Convention.
While on paper the ban applied only to Pakistan, an investigation by CBC’s The Fifth Estatefound that in practice, immigration officials quietly extended it to other Muslim-majority countries, including Iran, Sudan, Iraq, Qatar, Afghanistan and Algeria.
An access-to-information request on the ban turned up dozens of redacted pages, including a June 25, 2013, memo marked “secret,” titled “Canadian programming to counter the terrorist threat from Pakistan” — raising questions about what national security might have to do with the adoption of children.
One legal observer said that not only is the ban discriminatory, but it unfairly puts the burden on individual families to argue the validity of their religious traditions.
“Frankly, I’m shocked that the government has not revisited this legislatively,” said Faisal Bhabha, an associate professor at York University’s Osgoode Hall Law School in Toronto. “A case like this should really not fall on the shoulders of a family.
“The last thing they need is for their government to be telling them what their religion prescribes or doesn’t prescribe…. I don’t see how this case could not be successful.”
Pakistani court gives permission for adoption
At the centre of the court challenge is a Toronto woman who became the caregiver to her sister’s three children while living in Pakistan after her sister’s death. Since 2012, Jameela Qadeer has cared for her sister’s son and two daughters as if they were her own, with their father unable to do so.
“When their biological mother died, I knew that I would do anything I could to make sure that they never felt motherless,” she told CBC News, recalling how they’d sleep in one bed together so they wouldn’t feel alone.
A major challenge of Canada’s ban on adoptions from many Muslim countries is set to play out at the Federal Court. Jameela Qadeer took in her sister’s three children after her death more than a decade ago. A Pakistan court recognized her as their adoptive mother but after an abrupt 2013 change, Canada says the Islamic legal principle of guardianship Pakistan and other countries use doesn’t meet the bar of a parent-child relationship.
Now separated from the children, she said, “I think about that now and as I’m going to sleep.”
As an Ahmadi Muslim facing persecution in Pakistan, Qadeer moved to Canada more than six years ago with her biological daughter, first with protected status and now as a permanent resident. But she soon learned Canada wouldn’t recognize her sister’s children as her own.
Pakistan has no official adoption law. Instead, like many other Muslim countries, it relies on the principle of guardianship, which preserves lineage to protect inheritance rights, for example.
To facilitate adoptions abroad, Pakistan’s courts routinely grant permission for those with guardianship orders to complete adoptions in other countries. That was the case with Canada until the 2013 ban.
Qadeer, whose husband has been working in South Africa, formalized her guardianship of the children in Pakistan in 2017. In 2019, after Canada’s refusal to recognize the children as her own, she turned to a Pakistani court, which declared her their adoptive mother.
Canada still refused the children’s application to join her, with an immigration officer saying that “the guardianship arrangements confirmed by the courts in Pakistan do not create a legal parent-child relationship.”
When Qadeer first applied in 2017 to bring the children to Canada, all three were minors. Today, they’re 19, 23 and 25 years old. Asked if their ages could hurt the case, their lawyer said what matters is the date the application was filed.
Qadeer said Canada’s refusal to recognize the children as her own means they could be ripped away from a mother for a second time.
“I would feel like I’ve gotten heaven on Earth” if the children were here, she said.
‘I believe the law is discriminatory’: lawyer
Qadeer’s Toronto-based lawyer, Warda Shazadi Meighen, said she believes the constitutional challenge is the first of its kind.
“I believe the law is discriminatory,” she said in an interview.
The crux of the case, Shazadi Meighen said, is that if the children had been adopted through a legal system not based in Islamic law, Canada would recognize their adoptions — meaning their very identities prevent them from being together as a family.
The children “are unable to reunite with their adoptive mother in Canada and unable to access permanent residence, unlike adopted family members of protected persons in Canada who do not follow Islamic law and/or are not of Pakistani origin and based in Pakistan,” Qadeer’s court filing says.
The filing says Canada’s refusal to recognize Qadeer’s relationship with the children violates the Charter of Rights and Freedoms, specifically Section 15 (equality rights), Section 2(a) (freedom of religion) and Section 7 (right to security of the person).
“The bottom line is there is no other parent for these children,” Shazadi Meighen said.
In 2018, Pakistan’s High Commission in Ottawa said the claim that Pakistan’s legal system did not allow for adoptions was false. “We believe that the ban from the Canadian government is unjustified,” spokesperson Nadeem Kiani said then.
At the time, then-immigration minister Ahmed Hussen’s press secretary told The Fifth Estate: “We have asked the department to initiate a review of this policy and begin consultations with Pakistan as well as provincial and territorial governments to determine a path forward to regularize adoptions from Pakistan.”
Government not commenting on case
Asked by CBC News if that review ever happened, Immigration, Refugees and Citizenship Canada would not say. The department also said it could not comment on active litigation cases.
“We understand and sympathize with prospective parents who have experienced hardships while trying to bring children under guardianship placement from Pakistan to Canada,” spokesperson Mary Rose Sabater said in an emailed statement.
Every year for the last four years, Maha Al-Zu’bi, a former Calgary professor, her husband Tahseen Kharaisat, a former local restaurant owner, and their five-year-old son Furat have dressed in red and white to celebrate Canada Day from the apartment they’re renting in the northwest suburbs of Amman, Jordan.
Maha says, while it’s always a celebratory day, it’s a hard one — because sometimes even the thought of looking at pictures from home brings her to tears.
“We strongly believe we’ll be back in Canada someday. But we don’t know when,” Maha told CBC News. “We love Canada, but sometimes when you love someone you close your eyes to their mistakes because you love them.”
The “mistake” Maha refers to is a federal policy with roots stretching back through the last decade. Families, their lawyers and advocates say it effectively blocks Canadians from adopting children from many Muslim-majority countries. The sticking point is a difference in terminology between how those countries, and Canada, view adoption.
CBC News spoke with two families who say their lives are on hold while they’re left waiting for the government to recognize their adoptions as legal.
‘The way I was being treated never felt like I was Canadian’
Al-Zu’bi and Kharaisat are Canadian citizens. When they moved to Calgary in 2011, Al-Zu’bi quickly got a job at the University of Calgary, where she completed a PhD in environmental design, while Kharaisat opened a shawarma restaurant.
But their family didn’t feel complete — the couple had always hoped to have a child.
After years of exhausting and expensive fertility treatments, and with Al-Zu’bi in her early 40s and Kharaisat about to enter his 50s, time felt like it was running out.
The waitlist to adopt a child in Canada was at least five years, so the couple turned to their country of origin, Jordan, to find a child in need of a home. That’s where they met Furat. The three-month-old boy was born with a cleft hand — a congenital condition where the centre of the hand is missing fingers. He was abandoned by his birth mother due to his disability.
“The first moment the lady gave him to me, I was staring into his eyes and he gave a big smile — it was a great sign that he’s as happy as we are,” Al-Zu’bi said.
They decided to welcome Furat into their family and completed the Jordanian adoption process, under a law called kafala. It never occurred to them to consult a lawyer to investigate whether Canada would treat some international adoptions as different than others — and there was nothing clearly visible on theCanadian government’s website that would indicate that adopting from an Islamic country would be prohibited.
One week after Furat was adopted, the family applied to the Canadian embassy for his visitor visa. It was promptly rejected.
“It was a surprise. And, to be honest, it was very disappointing,” Maha says. “I file taxes every year. We’ve always been good citizens. I love Canada … but [once I started being interviewed] the way I was being treated never felt like I was Canadian. It wasn’t welcoming.”
The family’s lawyer wrote to Alberta Adoption Services to request a review of the department’s policy. Alberta’s justice department instead responded, stating the federal government would need to amend its immigration regulations for the adoption to proceed.
The U.S. issued Furat a visitor visa, despite Canada’s reluctance. The CBC has blurred the photo to hide any personal information. Supplied by Maha Al-Zu’bi (Supplied by Maha Al-Zu’bi)
While adoption is provincially regulated in Canada, few provinces allow for exemptions to the policy, and advocates say the federal restriction means it’s difficult, if not impossible, for families to adopt children under a certain type of Islamic legislation.
That’s because in many Islamic countries, like Jordan, guardianship is established under kafala law, by which adoptive parents become the sponsors or guardians of a child, but not their official adoptive parents. It’s based on an interpretation of the Qur’an that encourages fostering children in need, without severing the possibility of ties to the child’s biological family.
The official reason Furat is barred from entering Canada is that Canada, as a signatory of the Hague Convention on intercountry adoption, does not recognize parent-child guardianships established in countries under Islamic law. Yet the United States, Britain and Australia, all signatories to the same convention, allow adoptions from Islamic countries.
Countries affected by the legislation include Jordan, Somalia, Pakistan, and Morocco. It’s a policy the current federal government promised to review five years ago — but questions from CBC News to the government about the status of that review went unanswered.
Immigration, Refugees and Citizenship Canada maintains these countries’ policies don’t meet Canada’s legal definition of adoption. However, critics say Canada’s policy is based on a misinterpretation of Islamic adoption law that unfairly discriminates against Muslim families.
The IRCC says that while the government is “sensitive to the emotional stress that can be caused when there are issues with cases involving children” it must take precautions to ensure international adoptions comply with laws in Canada, the Hague Convention, and the child’s country of origin.
“Once the adoption process has been completed in accordance with the laws of both countries, then the immigration or citizenship process to bring the child to Canada can proceed,” the IRCC said in an emailed statement.
The family has submitted all requested legal documents, including a letter of support and verification of legal guardianship from Jordan’s foreign affairs ministry and the minister of social development. The IRCC says, as Furat’s case is before the courts, it’s unable to comment further.
Policy’s origins date back to counter-terrorism memo
In British Columbia, unlike Alberta,provincial legislation allows an adoption agency to sign off on non-Hague-recognized adoptions in advance, before a family adopts from overseas, which has allowed some adoptions to be completed in countries like Morocco.
Delia Ramsbotham, managing director of B.C.’s Sunrise Family Services Society, says her agency has received calls from families across the country asking how to adopt from nations that don’t have an established adoption process with Canada — and that sometimes she has to break the news the adoption might not be possible, due to the country they’re trying to adopt from or where they live.
She says that one of the reasons Hague adoption rules are so restrictive is because they’re meant to ensure children are legally available for adoption, and that they’re able to legally immigrate into their adoptive parents’ country.
“It’s an attempt to try to put safeguards in place for everyone involved,” she said. “The powers that be don’t want people who live in Canada flying overseas and doing an adoption and bringing those kids back if we don’t know if those kids were trafficked, if those kids were actually in need of a family or if their parents were paid off … it’s not just protecting the children, it’s protecting the birth parents, and adoptive parents.”
She suggests that anyone preparing to adopt first contact their province or territory’s adoption agency, to get guidance on navigating the complex patchwork of laws between Canada and whichever country they’re interested in adopting from.
When asked by CBC News why Alberta doesn’t recognize guardianship adoptions, like B.C., a spokesperson for Alberta’s minister of children and family services said its legislation doesn’t “recognize guardianship orders as equivalent to adoption orders.”
They added that it’s outside the province’s legislated authority to be involved in international adoptions that only grant guardianship orders.
While Canada ratified the Hague Convention in 1995, adoptions from Islamic countries still appear to have been accepted across Canada until about 2013. That year, Canada abruptly issued a notice that it had banned all adoptions from Pakistan, stating “Pakistani law allows for guardianship of children but does not recognizeour [Canada’s] concept of adoption.”
The CBC’s Fifth Estate releasedan investigation into the policy in 2018, where it found that the restriction had quietly been extended to virtually all Islamic countries, and that emails from federal officials to provinces and territories were attempting to drum up support for the change.
It found that just days before the Pakistan adoption ban, a heavily redacted memo addressed to former foreign affairs minister John Baird, titled “Canadian programming to counter the terrorist threat from Pakistan,” raised questions of whether the decision was motivated by a national security agenda.
CBC News has filed requests under the Access to Information Act with the hope of clarifying the origins of the policy and determining whether the current federal government has endeavoured to change the policy, but has yet to receive the results of those inquiries.
The office of then-federal immigration minister Ahmed Hussen said in 2018 that it would undertake a review of the policy and determine a path forward to recognize Muslim adoptions. But the results of that review, if complete, do not appear to have been made public.
CBC News asked Immigration Minister Sean Fraser’s office for comment on the status of that review and was told that the office does not have an update to share. Any further comment was referred to the IRCC.
The federal government’s website states it can providehumanitarian exemptions to the policy. And legal decisions, like one by an Edmonton Court of Queen’s Bench Justice in 2015, have declared that kafala law does create “apermanent parent-child relationship.”
And yet, five years later, the government policy remains the same, with no clarity. And more families are left in legal limbo.
‘I was so hurt’
Farhan Abdi Omer, a Canadian citizen from Somalia who works as a security officer at the Calgary Courts Centre, is another parent confounded and, in his words, “heartbroken” by the government’s denial of his application to bring his two sons to Canada.
For three-and-a-half years, Omer, like the Al-Zu’bi family, has applied, been denied, and is now in the process of appealing Canada’s immigration system.
Fifteen years ago, Omer was working as a police officer in Somalia. One evening, while inspecting an area of Mogadishu that had seen intense violence and targeting of Somali Christians, he happened across two boys, Ayanle and Khader, on an abandoned street.
They were approximately three and five years old. Omer and his late wife took the boys in, and searched for their birth parents for over a year before deciding to formally adopt them via a secular, United Nations-recognized court in Somalia in 2009.
Later, the family fled Somalia, and became refugees in neighbouring Djibouti. Omer and his wife decided he should immigrate to Canada first, to save money and prepare for the entire family’s arrival down the line.
While in Djibouti, Omer’s wife was diagnosed with cancer, delaying their immigration process as his earnings in Canada went toward her chemotherapy treatments. She passed away in 2017, leaving the boys in the care of Omer’s mother before he began the process to bring them to Canada.
By this point, Omer’s two sons had become Christians, which he says makes them more vulnerable to discrimination in Djibouti.
In 2019, the same year Maha Al-Zu’bi and Tahseen Kharaisat applied for Furat’s temporary visa, Omer applied to sponsor his boys to come to Canada. The application was referred to the Canadian High Commission to Kenya in Nairobi. The visa office twice expressed concern that the Somali adoptions were not legally valid because Somalia is predominantly Islamic.
“I am concerned that there is no official law or legal structure that allows full adoption in Somalia,” reads one of the letters from the high commission, dated May 17, 2021, which Omer provided to CBC News.
“While issues and obligations related to guardianship, custody and care of children left without biological parents may be addressed in Islamic Sharia law as understood in Somalia, Islamic Sharia law and other bodies of law in Somalia do not allow for full adoption of a child, as generally understood in Canada.”
The letter also says the immigration program manager was concerned the arrangement may not be in the best interests of the child because there is “no competent recognized central government adoption authority or child welfare agency in Somalia” with the capacity to approve adoptions, verify the origins of the child or verify adoption documents.
In response, Omer explained, with supporting documentation, that the Somali adoption order was issued by a secular, UN-recognized court.
Further, Omer obtained an order from an Alberta Court of Queen’s Bench (now King’s Bench) justice that establishes that Omer’s Somali adoption order has the legal effect of an adoption order under Alberta law.
Despite these responses, Omer says the visa office refused the applications on the basis that adoptions are not available in Somalia as it is a majority Islamic jurisdiction.
“I was so hurt … Because I’m a Muslim?” Omer said. “I’m a citizen, a Canadian. I respect everyone, all religions. I am integrated. I mean, I can’t hear that from Canada. If I heard that from Somalia, I would say, ‘OK,’ but from Canada? I can’t hear that. It’s not acceptable.”
Last summer, Omer’s application was officially denied, with the family being told by the immigration program manager that he was not satisfied that a legal adoption had taken place.
Ramsbotham, the B.C. agency adoption director, says even if Omer had moved to B.C. and not Alberta, B.C. law likely still wouldn’t allow for him to bring his children to Canada — because it only allows for adoptions approved in advance, and Omer had taken guardianship of his children long before he immigrated.
She said she’d like to see more targeted humanitarian exemptions to the law.
“I do wish that the government would create a provision for valid placements of kids in different circumstances,” Ramsbotham said. “The human experience is too complicated to fit nicely into all the laws that are drawn out.”
A legal fight
Omer is currently in the process of appealing the decision with the support of pro bono legal counsel. In the meantime, he has been working seven shifts a week at the courthouse, sending money to the boys, who are now 18 and 20, and his mother.
Omer’s immigration agent, Tewolde Yohannes, says he has been approached by about half a dozen other Somali families in Calgary struggling to bring their adopted children into Canada, but that after his experience with Omer’s case, he will no longer take on their cases.
“It just drains you,” he says, “knowing the outcome will most likely be negative.”
Omer’s current pro bono counsel is Nick Ettinger. He says the immigration appeal process “can be virtually unnavigable without legal counsel, which may be financially out of reach for many newcomers to Canada.”
In their appeal, Omer’s counsel raised concerns that a ban on adoptions from Islamic countries is discriminatory. An appeal earlier this year argued that the denying visa officer’s blanket statement that Islamic law doesn’t allow for full adoption “lacks transparency … and constitutes an unfounded generalization.”
Omer says his sons face risks to their safety back in East Africa, due to their identity, and he is anxious to bring them to Canada as soon as possible. In the Alberta court’s endorsement of Omer’s adoption order, the presiding judge noted the particular vulnerability of the boys and the urgency with which their application should be processed.
“They need somebody to guide them to success in their life. They need somebody to help them. I need them because I need, you know, to be happy with them — because I was happy,” Omer said. “They’re really smart kids and I want them to have a better life.”
Impossible choices
Al-Zu’bi and Kharaisat are also fighting the government’s decision in Federal Court.
After four years of waiting to return to Canada, they’ve incurred enormous costs — Tahseen was forced to sell his restaurant, the couple depleted their savings, and they sold off all their furniture to pay for their legal expenses.
In one letter from the immigration office in Jordan, an immigration officer told the family that since the Canadian couple chose to adopt their child in Jordan, they might as well just stay there.
“I have considered the emotional and financial hardship to the guardians who have chosen to leave Canada … I do not find that the hardship of the situation they have chosen to pursue is undue,” the officer wrote.
Maha Al-Zu’bi says that since adopting Furat, she hasn’t spent a day away from his side. They could stay in Jordan, but it would mean selling their home in Canada, declaring non-residency, losing their careers, and starting over. Back in Canada, more than 100 friends have written letters of support on their behalf to the government.
Michael Greene, the couple’s lawyer, calls the denial “unfair, [and] grossly unjust.”
Greene says the decision to interpret the Hague Convention to exclude kafala adoption is an entirely political one — no court was involved in the change. He points to a number of changes to immigration legislation either made or considered at the time of the decision, during former federal immigration minister Jason Kenney’s tenure, such as the examination of a plan to cut off refugees withhealth issues and the passage of a law that allows the immigration minister to decide who can and can’t enter the country on the basis ofnational security concerns.
“It’s a political decision. It wasn’t like the courts came down and said, ‘You can’t recognize kafala adoptions anymore.’ I’m suspicious of how the law came about,” Greene says.
However, Kenney, who is no longer in politics, says he had not heard of Canada’s policy on kafala law until CBC News contacted him in August to ask about its origins, and says it never came up during his time as immigration minister.
He added that he does feel the IRCC needs to be rigorous when it comes to international adoptions, whether to prevent child trafficking through “failed states and deeply corrupt countries” or to avoid creating a “back door for de facto immigration for young people who are not bona fide adoptees.”
‘We encourage Furat to always be happy’
Furat, who is now four, is a bubbly and bright little kid.
In a recent Zoom interview with CBC News, he seemed unaware of his family’s plight — but eager to talk about his excitement to see Canada, and to show off his taekwondo moves. But the burden of the situation was apparent on Al-Zu’bi’s face, as she wiped away tears while speaking.
“It’s not easy. We encourage Furat to always be happy. We are trying our best to give him whatever we can for a normal child. We will keep pushing,” Al-Zu’bi said.
Meanwhile, Omer is still preparing to bring his sons to Canada. He talks to the boys and their grandmother daily, before work. He tells them the process has been delayed, but does not share the reason their applications have been rejected.
“They think Canada is very open, and there is freedom of religion here. I don’t want them to lose hope,” he says.
When asked to clarify its policy on adoptions under kafala law, the IRCC sent the following statement:
The Government of Canada’s first priority is to protect the safety and well-being of the child/children involved in international adoptions.
Immigration, Refugees and Citizenship Canada (IRCC) is sensitive to the emotional stress that can be caused when there are issues with cases involving children. Nonetheless, IRCC must take all necessary precautions to ensure that all international adoption cases involving children comply with Canadian laws, international laws, as well as the statutes and regulations of the child’s country of origin.
The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (“Hague Convention”), to which Canada is a party, covers only international adoptions that create a permanent legal parent-child relationship between the adoptive parents and the adopted child. Some countries have other systems in place, such as guardianship or Kafala, which does not sever the legal relationship between the biological parents and the child and does not create a new permanent legal parent-child relationship.
These types of systems do not meet Canada’s legal definition of adoption (see s. 3(2) of the Immigration and Refugee Protection Regulations). The Hague Convention, as well as federal, provincial and territorial legislation in Canada, state that the laws of both the country of origin and the receiving country must be complied with for all international adoptions. A key consideration under the Hague Convention is that the child’s availability for adoption must be determined by the child’s state of origin.
For all international adoptions, two separate processes must be completed:
1. The adoption process, and
2. The immigration or citizenship process.
The adoption process involves the adoption authorities in the province or territory of residence of the prospective adoptive parents and the State from which the child is being adopted. Once the adoption process has been completed in accordance with the laws of both countries, then the immigration or citizenship process to bring the child to Canada can proceed.
In Canada, adoption is the responsibility of the provinces and territories, and they all have their own legislation implementing the Hague Convention. IRCC’s role as the competent authority for immigration and citizenship is to make a determination on the right of the child to enter and reside permanently in Canada.
Encouraging but will see how implementation works. The Gulf States were built on this abusive system:
New labor rules in the energy-rich nation of Qatar “effectively dismantles” the country’s long-criticized “kafala” employment system, a U.N. labor body said Sunday.
The International Labor Organization said as of now, migrant workers can change jobs before the end of their contracts without obtaining the permission of their current employers.
Qatar also has adopted a minimum monthly wage of 1,000 Qatari riyals ($275) for workers, which will take effect some six months after the law is published in the country’s official gazette, the ILO said. The minimum wage rule requires employers to pay allowances for housing and food as well if they don’t provide those for their workers.
Amnesty International praised the move as “an encouraging sign that Qatar may finally be heading in the right direction,” although employers still can file criminal charges against “absconding” employees, meaning those who left their jobs without permission.
“We call on Qatar to go further with these reforms, including removing the charge of absconding, to make sure that the rights of all workers are fully protected,” Amnesty official Steve Cockburn said in a statement.
Qatar, whose citizens enjoy one of the world’s highest per-capita incomes due to its natural gas reserves, partially ended the “kafala” system in 2018. That system ties workers to their employers, who had say over whether they could leave their jobs or even the country.
Qatar is being transformed by a building boom fueled by its vast oil and natural gas wealth. Like other energy-rich Gulf nations with relatively small local populations, Qatar relies on well over a million guest workers, many of them drawn from South Asian nations including India and Nepal. Rights activists long have criticized the “kafala” system as allowing abuses of those foreign workers.
This comes as Qatar will host the 2022 FIFA World Cup in the Arabian Peninsula nation. Having the winning bid for the soccer tournament brought renewed attention to laborers’ rights in Qatar.
Meanwhile Sunday, the United Arab Emirates announced it now requires private employers to grant new fathers five paid days off after the birth of a child.
Multicultural Meanderings 