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What you need to know about the legal process in Canada
Attorney Aadil Mangalji of Long Mangalji LLP answers common questions about the immigration process for Canadian intended parents who are pursuing surrogacy in the United States.
Overview
For Canadian Citizens
For Canadian Permanent Residents
Summary
The difference is basically in the rights that you have in Canada. A citizen is considered an individual who’s able to stay in Canada permanently. They are given a passport, they have all the rights of citizenship, they can vote. A permanent resident is not yet a citizen so basically, we like to think of it as citizen light. They have the right to live in Canada. The big thing though is that they have to maintain their residency in order to maintain their status which basically means that at the end of every five years they will have to renew their residency and at that point, they’ll have to show that they were living in Canada for at least two out of those five years or they were with a spouse a Canadian citizen spouse overseas for at least two out of those five years. So you can essentially lose your PR status but you cannot really lose your citizenship status.
That’s really interesting because Canadian law really links citizenship to genetic links and that’s kind of changed and we’ll talk about that a bit later but generally if there is a genetic link it’s the easiest possible way to demonstrate citizenship and essentially have citizenship by descent. This is an automatic grant of citizenship so you do not have to apply for citizenship. So essentially if a Canadian citizen has a child then their child gets citizenship by descent as long as they were born in Canada. The best way to demonstrate this often especially in the surrogacy realm is through DNA testing. DNA testing is traditionally and often done in surrogacy anyways and we essentially use the DNA test to demonstrate the biological link.
This is quite a bit different. There is no permanent residency by descent. Essentially, the baby has no status in Canada at that time even if they are born to a permanent resident. Essentially what has to happen is the permanent resident does have the right to sponsor a dependent child to Canada and the sponsorship process can often take up to a year. In the interim, if they want to bring the baby to Canada, the child would enter as a visitor to Canada. If they don’t require a visitor visa they can just come in. If they are from a country that requires a visitor visa they would have to apply for one and then come into Canada and while the application is in process, the sponsorship application, they would have to maintain their temporary status for the baby during that entire time period. So there is no auto descent like we have in citizenship.
This is a really interesting question that has kind of really been debated in the courts in Canada. We finally have some resolution and the way that Canada now looks at it is that there is citizenship by descent when there’s a DNA link but also parents who have been recognized as the child’s legal parent at birth either through an original birth certificate or by relevant birth records so surrogacy contracts, court orders, hospital records, etc. They’re also eligible to pass down citizenship without a gestational link or a biological link so essentially what happened is this had gone to court the government fought it um the Quebec courts did find that this was discriminatory in some ways and essentially instead of taking it up the Canadian government put in a public policy that is now being honored. And essentially now if they can prove that they were recognized as the child’s legal parents at birth especially in jurisdictions that allow for that, then citizenship is passed down. However, it is important to remember that there is that caveat of at-birth so if they adopt the child a year later or in a long-term process afterward then there’s an application for citizenship that has to happen. It’s not citizenship by descent.
So again, mostly in these instances where we’re talking about adoptions that are happening in most instances and basically we’re back to the permanent residents all always have to sponsor. So in the same way that if they have a biological child they can sponsor them, you can also sponsor an adopted child. So they would go through the adoption proceedings overseas, become the legal adoptive parent, and then for Canadian purposes, they would bring the child to Canada on a temporary (usually a visitor application) and essentially they would then proceed to do a sponsorship application for that child and again it usually takes about a year to do the sponsorship of a dependent child. And at the end of that entire process the child would become a permanent resident of Canada and again they would have to be in Canada for three out of five years and then their parents would apply for citizenship for them.
So that’s actually really interesting because then nobody really has the status in Canada. So if those Canadian intended parents are on some sort of temporary application, so, for example, a visitor visa, they can bring the child in as a visitor. Also if they have a work permit they can also bring the child in as a visitor. They can apply to bring the child in as a visitor and then they would add the child to their permanent residence application. It’s very, very, very critical that they do declare that child on that permanent residence application even if that application has already started. If they do not declare that child it is a huge problem to declare them later and to sponsor them later. Basically, there’s a provision of the immigration and refugee protection act which basically states (it’s 117 9d) that if you were not declared at that time and you were a dependent then when they do try to sponsor you in the future that you would not become a member of the family class. You would have to actually ask for a humanitarian and compassionate exemption from this provision. So it is critical that if they are applying to be permanent residents they have an application in process and then have a child that that child is declared prior to them actually formally getting their permanent residency. And that child will also have to go through medicals to demonstrate that they pass the medical provisions and is not medically inadmissible in any way.
Yeah so there is a one-generational limit. This kind of came about in the citizenship exchanges that had come out in 2015. Essentially the best way that I explain it to people is if you were born in Canada and you have a child overseas, that child will get citizenship. As we spoke about before, they get the automatic grant of citizenship by descent. However, if that child then has a child overseas, I guess the first person’s grandchild or that individual’s child will not get citizenship by descent. So it only goes down one generation and this is very important to note especially in overseas surrogacy. I always inform parents that even though you’re passing down citizenship by descent that doesn’t go down again and again in perpetuity. It only has a one-generational limit.
So that’s a great question because it’s really going to depend on the province that the individual is in. Generally, if they are born to permanent residents of Canada, if they are coming in on temporary applications so like I said for permanent residents they do have to do a sponsorship. Until that sponsorship is finalized that child is not a permanent resident of Canada. So basically in most instances, they would be here as visitors and I always state to individuals that it’s best to be getting health insurance in that interim time period, that’s the safest way to make sure that your child can get health care because in most provinces as visitors they would not have access to universal health care that is here in Canada. For Canadian citizen children that are coming prior to them having their citizenship card, that’s a little bit different before their citizenship certificate. Citizenship by descent, again as I stated, is not an application. It actually is a grant and when you’re waiting for that citizenship certificate you’re still a citizen you’re just waiting for it so it would be akin to being a Canadian citizen waiting for your passport. That’s just a document that proves your status. And in those instances as a Canadian citizen you are eligible for Canadian healthcare in all provinces as long as you’ve resided for a certain period of time. So I think if it’s for permanent residents and the child is a visitor to Canada you want to ensure that you are getting health insurance. If you are coming in as a citizen then you just want to make sure you meet the residency requirements of that particular province and you will have access to healthcare.
So our recommendation is that once there is confirmation that the surrogate is pregnant and that they know that they want to be coming back to Canada that we start the process. We cannot submit any documents or give anything to the government until the baby is actually born. However, when intended parents have the child in-hand they’re pretty anxious to get back to Canada as fast as possible and so what we do is we would provide a document list to individuals well before the birth because intended parents are usually very busy with a new child after that and don’t want to be dealing with the paperwork. We get all the paperwork ready and cleared and at least give a list of documents that they require for after the birth to make sure that we have everything on hand and this way we’re able to put in an application as fast as possible after the birth but one of the required documents that we will need in order to submit is definitely the birth certificate. And if there is an adoption taking place then we would need confirmation of that adoption prior to submitting all these applications.
We usually will provide a full document list and it does change. When there are pre-birth orders it does make it a little easier like I alluded to especially when there’s no biological connection. In those instances, we can see that the parents have been recognized as the child’s legal parents at birth or even before birth so that does make that issue a lot easier and stringent and it just gives us our documents a little earlier. So if there is a pre-birth order it is useful to us. However, we still cannot submit up until actually the birth has happened but it does allow us to submit those applications faster because that issue’s already resolved.
So that’s really interesting and has become very interesting during COVID because people don’t want to be traveling as fast as possible and they’re often staying in the country that they’re in because they don’t want to put their baby at-risk in terms of travel right now. It really depends on the status of the parent and the baby so if it’s a citizenship grant, for example, the grant by birth, if they’re Canadian citizens by biological connection or have parents recognized as legal parents at birth, they can start applying for the citizenship certificate from anywhere and you can start it right away. They do not have to be in Canada. If they are permanent residents and they and they’re doing a sponsorship application, then they do have to be in Canada. A citizen can sponsor from overseas but a permanent resident cannot so a permanent resident has to be living in Canada when the sponsorship process goes into place. So they would have to return to Canada and put in the sponsorship application at that time.
Because we’ve spoken about so many we’re kind of all over the maps. What I have found is that, although these processes seem to be very siloed, it’s very different depending on almost every family and what their goals are, what their biological connections are, what their birth story is, when they want to be coming to Canada. So the way that we have set it up is that we do provide consultations for intended parents well-prior, actually prior to when they’re actually considering surrogacy so that they understand what’s happening. And from the consultation, we come up with an immigration plan and it’s there that we would provide a fee structure for exactly how much everything would cost. And so parents are never surprised going into the process. All of our fees are done as fixed rates so we don’t do hourly rates. We do fixed rates on our fees and we inform people of it well in advance.
About Aadil Mangalji
Aadil Mangalji is an active advocate of immigration and refugee rights in Canada and appears regularly at Federal Court, the Immigration Appeal Division and the Refugee Board. He has also presented cases at the Federal Court of Appeal and the Supreme Court of Canada. He is a member of the Law Society of Ontario; Canadian Bar Association; Canadian Association of Refugee Lawyers; and the Refugee Lawyers Association.
Aadil Mangalji is a strong advocate of ensuring access to justice for vulnerable people, and volunteers his time with many community groups. He is currently the Chair of the Board at Neighbourhood Legal Services; a community legal clinic in downtown Toronto that helps low-income and vulnerable communities. He provides pro-bono services for Rainbow Railroad and The 519, organizations that assist LGBT refugees escaping persecution to areas of safety. In addition, he volunteers with assisting in the development of early childhood education programs in Sri Lanka.
Aadil Mangalji is a strong community member of the Legal Aid Ontario Peer Review committee, and the Legal Aid Area Review Committee, a position that is only given to experienced senior counsel.
Aadil Mangalji graduated with a Juris Doctor law degree from the University of Toronto, Faculty of Law. He also holds a Bachelor of Commerce degree with Dean’s list distinction from McGill University in Montreal, Canada.
Aadil has been Certified by the Law Society of Ontario as a Specialist in Citizenship and Immigration Law as well as a Specialist in Refugee Protection Law, a prestigious list of which only approximately 15 lawyers in all of Canada belong.
Aadil speaks English, French and Gujrati.
Next Steps
To learn more about the immigration process to return to Canada with your baby, please contact Aadil Mangalji and his team via their website www.lmlawgroup.com.