Canada's rules on Islamic adoptions prevent families from bringing their children home

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 the Canadian 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.

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 recognize our [Canada's] concept of adoption."

The CBC's Fifth Estate released an 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 ministerJohn Baird, titled "Canadian programming to counter the terrorist threat from Pakistan," raisedquestions 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 provide humanitarian 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 "a permanent 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 orchild 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 with health 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 of national 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.

For a full list of countries that do not currently allow international adoptions, please see IRCC's web site. Countries on the "Countries with a suspension on adoptions" list have had adoptions suspended by some Canadian provinces and territories, and any questions on the suspensions should be answered by the provincial/territorial adoption authorities. Countries mentioned on the "Countries with restrictions on adoptions by Canadians" list have their own national laws and other restrictions that limit some or all international adoptions. Canada must respect the laws of these countries.