Date: 20040226
Docket: IMM-819-03
Ottawa, Ontario, this 26th day of February, 2004
Present: The Honourable Justice James Russell
BETWEEN:
SVETLANA FROUNZE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board ("Board"), dated January 10, 2002 ("Decision"), dismissing the appeal of Ms. Svetlana Frounze ("Applicant") under ss. 77(3) of the Immigration Act of a denial of her sponsorship of her natural parents.
BACKGROUND
[2] The Applicant was born in Baku on May 27, 1956, as Svetlana Alexandranova Kagramanian (otherwise known as Svetlana Alexandranova Kagramanova). After her marriage to Vacheslav Frounze on July 24, 1978, she adopted the name Svetlana Alexandranova Frounze.
[3] On January 30, 1966, when the Applicant was ten years old, she was adopted by her father's uncle, Markos Kagramanov, born January 5, 1907 and his wife, Vartanush Kagramanova, born March 15, 1912.
[4] The purpose of this adoption was to circumvent the provisions of the Soviet Realty and Inheritance Act pursuant to which the apartment in which Markos Kagramanov and his wife lived would revert back to the State should they die without leaving behind an heir. In 1966, they did not have any children, and the prospect of their having any children at that age was, at best, remote. For that reason, they decided to adopt the Applicant in order to retain ownership of the apartment within the family.
[5] Although an adoption certificate (No. 185) was executed on January 30, 1966, in accordance with Soviet law, no genuine relationship between parent and child was ever created or intended between Markos Kagrmanov, Vartanush Kagramanova and the Applicant.
[6] The Applicant submits that the reason for the adoption was to defeat the provisions of the Soviet Realty and Inheritance Act and not to substitute the adoptive parents for the natural parents of the Applicant.
[7] Markos Kagrmanov died on November 5, 1968 and Vartanush Kagramanova died on August 29, 1973. Hence, it is not possible to obtain any sworn evidence from either of them. However, the Applicant submits that it is readily apparent from their age at the time of adoption, as well as from the cultural pattern of people living in the Baku region at that time, that there was no intent on the part of the aunt and uncle to assume the role of the Applicant's real parents. Markos Kagrmanov and Vartanush Kagramanova played no role in the rearing of the Applicant. The Applicant indicates that the school she attended was not even aware of the existence of the adoption certificate. When the Applicant visited the local doctor's office, her biological parents always accompanied her.
[8] The Applicant submits that her natural parents continued to exercise authority over her, continued her education, and were briefed by her school as to the progress she was making. Essentially, the Applicant's natural parents continued their parental guardianship over their child to the exclusion of others.
DECISION UNDER REVIEW
[9] On February 28, 2001, the Canadian Embassy in Moscow denied an application for permanent residence in Canada as "members of the family class," filed by Alexander Kagramanian and Asia Kagramanian, the natural parents of the Applicant, on the ground that they had not proven that they were the parents of the Applicant sponsor.
[10] The Applicant's appeal to the Board was heard on January 10, 2002. The Board noted as follows:
... According to the appellant, nothing changed as a result of the adoption as she continued to reside with her natural parents, who continued to raise her. The appellant stressed that the adoption was a mere paper exercise with absolutely no affect (sic) whatsoever in her actual living arrangements or with the relationship she had with her natural parents or her siblings.
It may be truly unfortunate for the appellant if her version of events is accurate and I have no reason to doubt her. Regardless, it is clear for the purposes of this matter Assia and Alexander Kagramanian are not the mother and the father of the appellant as a result of the appellant's adoption by Markos and Varnatush Kagramanian.
For these reasons the applicants are not members of the family class as defined by the Regulations. The appeal is dismissed for lack of jurisdiction.
RELEVANT LEGISLATION
[11] During the appeal, the Board considered the definition of "father" and "mother" under s. 2(1) of the Immigration Regulations, 1978, which provides as follows:
| 2. (1) In these Regulations,
"father" means(a) with respect to any person who has not been adopted, the male of whom that person is the issue, and
(b) with respect to any person who has been adopted, the male who has adopted that person;
...
"mother" means
(a) with respect to any person who has not been adopted, the female of whom that person is the issue, and
(b) with respect to any person who has been adopted, the female who adopted that person;
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2. (1) Dans le présent règlement,
"père" désigne, a) par rapport à une personne qui n'a pas été adoptée, l'homme duquel cette personne est issue, et
b) par rapport à une personne qui a été adoptée, l'homme qui l'a adoptée;
...
"mère" désigne,
a) par rapport à une personne qui n'a pas été adoptée, la femme qui lui a donné naissance, et
b) par rapport à une personne qui a été adoptée, la femme qui l'a adoptée; |
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[12] The definition of "adopted", which the Applicant argues was not considered by the Board, is as follows under the Immigration Regulations:
| "adopted" means a person who is adopted in accordance with the laws of a province or of a country other than Canada or any political subdivision thereof, where the adoption creates a genuine relationship of parent and child, but does not include a person who is adopted for the purpose of gaining admission to Canada or gaining the admission to Canada of any of the person's relatives; |
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"adopté" Personne adoptée conformément aux lois d'une province ou d'un pays étranger ou de toute subdivision politique de celui-ci, don't l'adoption crée avec l'adoptant un véritable lien de filiation. La présente définition exclut la personne adoptée dans le but d'obtenir son admission au Canada ou celle d'une personne apparentée. |
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[13] Under ss. 5(2) of the Immigration Regulations, a person who is a Canadian citizen or permanent resident is, subject to conditions, allowed to sponsor a person who qualifies as "a member of the family class."
[14] Under ss. 6(1) of the Immigration Regulations, where a sponsored "member of the family class," applies for permanent residence status in Canada, an immigration officer may issue an immigrant visa to that member and the "member's accompanying dependents," subject to the conditions set out in that paragraph.
ISSUES
[15] The Applicant raises the following issue:
Did the Board err by not directing its mind to the question of whether a "genuine relationship of parent and child" was created as between the Applicant and Markos and Varnatush Kagramanian, her adoptive parents?
[16] The Respondent raises an issue with respect to the leave application which was brought out of time. The Order granting leave does not specifically grant an extension of time for bringing the leave application.
ARGUMENTS
Applicant
[17] The Applicant argues that since the decision of the Federal Court of Appeal in Gill v. Canada (Minister of Citizenship and Immigration) (1998), 48 Imm. L.R. (2d) 163, a two-step approach is applied towards foreign adoptions. First of all, the adoption must be valid under the law of the jurisdiction under which it took place. Secondly, a genuine relationship of parent and child must have been established.
[18] In terms of determining whether a genuine parent-child relationship exists, the Board has considered the issue of foreign adoption in a number of cases. In De Guzman v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 28 (I.A.D.) at 32, for instance, the Board took into account the following factors:
With this in mind, the panel identified some of the factors that may assist in assessing a relationship of parent and child. These are:
(a) motivation of the adopting parent(s); and
(b) to a lesser extent, the motivation and conditions of the natural parent(s);
(c) authority and suasion of the adopting parent(s) over the adopted child;
(d) supplanting of the authority of the natural parent(s) by that of the adoptive parent(s);
(e) relationship of the adopted child with the natural parent(s) after adoption;
(f) treatment of the adopted child versus natural children by the adopting parent(s);
(g) relationship between the adopted child and adopting parent(s) before the adoption;
(h) changes flowing from the new status of the adopted child such as records, entitlements, etc., including documentary acknowledgment that the is the son or daughter of the adoptive parents; and
(i) arrangements and actions taken by the adoptive parent(s) as it relates to caring, providing and planning for the adopted child.
This list of factors is not exhaustive. Some factors may not be applicable to facts of a particular case while others not included in this list may be relevant.
[19] The Applicant submits that the Board erred in fact and law by failing to consider whether a "genuine relationship of parent and child" was created as between the Applicant and Markos and Varnatush Kagramanian. If it had done so, the Applicant says, it would have found that no such relationship was created and that Markos and Varnatush Kagramanian are not the "adoptive parents" and therefore not the "father" or "mother" of the Applicant. The Applicant notes that the Board itself conceded that it had no reason to doubt the facts as presented by the Applicant on this issue.
Respondent
[20] The Respondent notes that at no time has the lawfulness of the Applicant's adoption by Markos and Varnatush Kagramanian been challenged.
[21] The Respondent submits that the regulatory definitions relevant to this decision are unambiguous. The Applicant has been the daughter of Markos and Varnatush Kagramanian for more than 37 years. The Respondent submits that there is no question that the Applicant's natural mother and father are not her "mother" and "father" for the purposes of the Immigration Regulations. The Board therefore committed no error in making a finding that the applicants in the appeal were not members of the family class as defined by the Immigration Regulations.
ANALYSIS
The Leave Application
[22] At the hearing of this matter on February 5, 2004, the Respondent raised a preliminary issue concerning the leave application in this matter. The Respondent says that leave was granted even though the leave application was brought out of time (over one year later) and the Applicant failed to provide adequate grounds or a sufficient evidentiary base to support an application out of time. The Order granting leave does not explicitly grant an extension of time for the leave application.
[23] These arguments were clearly raised by the Respondent in written arguments before the judge who granted leave. Notwithstanding those arguments, leave was granted.
[24] In my view, then, this issue is res judicata and I must proceed to deal with the judicial review on its merits.
The Merits
[25] This Application raises a stark issue of regulatory interpretation. When the word "adopted" is used in s. 2(1) of the Immigration Regulations, 1978, is there always a need to consider whether the adoption at issue created a genuine relationship of parent and child?
[26] The Respondent takes the position that this issue has been authoritatively decided by Nadon J. in Borno v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 273 (T.D.). In particular, para. 9 of that decision provides as follows:
...
9. I fully agree with the Appeal Division. The definition of "adopted" in subsection 2(1) of the Regulations is unambiguous. A person adopted "in accordance with the laws of a country other than Canada" is "adopted" for the purposes of the Regulations. The applicant does not challenge the lawfulness of her adoption under the laws of Haiti. And there is no question that the applicant's natural mother, given her adoption by Ms. Tunis, is not her "mother" for the purposes of the Regulations.
...
[27] At first glance, this would seem to resolve the matter in favour of the Respondent. But these words cannot be applied out of context. In Borno, supra, Nadon J. had to decide whether a person adopted in accordance with the laws of a country other than Canada was adopted for the purposes of the Immigration Regulations. The reason why this was in doubt in Borno, supra, was because the applicant had argued that an adoption in Haiti was invalid because it had taken place outside of the province of Quebec, and Quebec legislation required that any adoption obtained outside of Quebec must be approved by the Quebec authorities, and no such approval had been obtained.
[28] So Borno, supra, was a case where the bare legality of a Haiti adoption was in doubt because of Quebec legislation requiring approval in Quebec. No issue was raised in that case as to whether the Haiti adoption did or did not create "a genuine relationship of parent and child," and paragraph 9 of Nadon J.'s reasons must be read with that fact in mind.
[29] As far as the bare legal aspect of the Soviet adoption is concerned, there is no dispute on the facts of the present case. What the Applicant argues is that, notwithstanding it's recognized legality, the adoption does not displace her natural mother and father under ss. 2(1) of the Immigration Regulations because it did not create a genuine relationship of parent and child but was a mere legal formality intended to secure property rights.
[30] The cases cited by the Applicant for the two-step approach outlined in Gill, supra, involve situations where an attempt was made to sponsor adoptive parents and the real nature of the adoption was questioned. In the present case, the Applicant, who had adoptive parents, wishes to evoke the same line of cases to justify the sponsorship of natural parents.
[31] The Respondent takes the position that the two-step process established in cases such as Gill, supra, is not applicable to the case at bar. The Respondent says that the word "adopted" in ss. 2(1) means a legal adoption and nothing more. On the facts of the present case, once it is determined that the Applicant was adopted, then the adoptive parents are the mother and father of the Applicant for the purpose of ss. 2(1) of the Immigration Regulations.
[32] I cannot agree with the Respondent's position in this regard. The word "adopted" is defined in the Immigration Regulations to mean a person who is adopted in accordance with the laws of a province or of a country other than Canada "where the adoption creates a genuine relationship of parent and child." Hence, in my opinion, whenever the word "adopted" comes up for consideration under the Immigration Regulations, it is not sufficient to consider the bare legality of an adoption and the decision maker must also determine whether a genuine relationship of parent and child was created.
[33] This means that, under ss. 2(1) of the Immigration Regulations, someone will not have been adopted if, notwithstanding an adoption in accordance with the laws of another country, no genuine relationship of parent and child has been created. In such a case, the mother and father of such a person will remain the male and female of whom that person is the issue. In this case, the Applicant is the issue of her natural parents who she now wishes to sponsor.
[34] The Board did not direct its mind to the genuineness of the parent and child relationship and merely assumed that because the Applicant had been adopted legally in accordance with the Soviet law she could not sponsor her natural parents. Having made this assumption, the Board failed to assess whether the adoption had created a genuine relationship of parent and child and, if it did, whether the Applicant satisfied the conditions for the sponsorship of her natural parents. In my view, this was a reviewable error of law by the Board.
[35] The Respondent indicated at the hearing that if I should decide this issue in favour of the Applicant, a question should be certified along the following lines:
Must the Appeal Division always address the genuineness of the parent-child relationship under ss. 2(1) of the Immigration Regulations, 1978, even when the adoption in question is established as lawful in accordance with the laws of the province or country other than Canada?
[36] I regard this question as both raising a matter of general importance and as being dispositive of the appeal in this case. It is also a question that, for reasons already given, I do not believe is answered in Borno, supra.
ORDER
THIS COURT ORDERS that
1. This Application for judicial review is allowed and the matter is returned to a differently constituted panel.
2. The following question is certified:
1. Must the Appeal Division always address the genuineness of the parent-child relationship under ss. 2(1) of the Immigration Regulations, 1978, even when the adoption in question is established as lawful in accordance with the laws of the province or country other than Canada?
"James Russell"
________________________________________
JFC
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.:IMM- 819-03
STYLE OF CAUSE:Svetlana Frounze v. M.C.I.
PLACE OF HEARING:Toronto, Ontario
DATE OF HEARING:February 5, 2004
REASONS FOR ORDER AND ORDER:The Honourable Mr. Justice Russell
DATED:February 26, 2004
APPEARANCES:
Mr. Frederick Wangfor the Applicant
Ms Mielka Visnic for the Respondent
SOLICITORS OF RECORD:
Mr. Frederick Wang for the Applicant
Toronto, Ontario
Mr. Morris Rosenbergfor the Respondent
Deputy Attorney General of Canada