Vol. 138, No. 6 — March 24, 2004

Registration
SOR/2004-34 8 March, 2004

IMMIGRATION AND REFUGEE PROTECTION ACT

Regulations Amending the Immigration and Refugee Protection Regulations

P.C. 2004-172 8 March, 2004

Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and section 14 of the Immigration and Refugee Protection Act (see footnote a), hereby makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

AMENDMENT

1. Subsection 365(2) of the Immigration and Refugee Protection Regulations (see footnote 1) is replaced by the following:

Exception

(2) Paragraph 117(1)(e) and subsection 117(5) come into force on April 1, 2005.

COMING INTO FORCE

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

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

Subsection 365(2) of the Immigration and Refugee Protection Regulations (IRP Regulations) establishes the date of coming into force of two regulatory provisions in the family class: the requirement for children under guardianship (paragraph 117(1)(e)) and the consideration of the best interest of the child (subsection 117(5)) as it relates to guardianship situations.

Purpose of this provision

The amendment to subsection 365(2) of the IRP Regulations defers to April 1, 2005 the implementation of the regulatory provisions related to guardianship.

What the Regulations do

This amendment ensures that the guardianship provisions (117(1)(e) and 117(5)) do not come into force at this time as the provinces and territories do not presently have the necessary legislative and operational basis to implement this new concept successfully.

The new concept of guardianship introduced by the IRP Regulations in June 2002 recognizes that, in some countries, adoptions are not available to children in need of care. The provisions related to guardianship in the IRP Regulations expand the family class to permit the sponsorship of children under guardianship in prescribed circumstances.

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

Paragraph 117(1)(e) and subsection 117(5) of the IRP Regulations, would, if they were in force, allow Canadian citizens or permanent residents to sponsor children under their guardianship, subject to certain prescribed requirements.

Sponsors of children under guardianship would be required to obtain statements from their provinces or territories approving their guardianships. These statements would also confirm that such children would receive the same legal protections and social benefits afforded to adopted children under provincial law. However, provinces and territories, which routinely issue similar statements in international adoption cases, are unable to do the same where the sponsor is the child's guardian and not the child's parent.

Alternatives

There is no alternative to a regulatory framework to offset the coming into force of these provisions.

Benefits and Costs

A limited number of applications will be affected by the coming into force of these new provisions.

Benefits

Delaying implementation will allow Citizenship and Immigration Canada (CIC) to review its policy to include children under guardianships as members of the family class and to consult the provinces and territories on available options.

Costs

There are no costs associated with deferring these Regulations until April 1, 2005.

Consultation

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.

Compliance and Enforcement

Child welfare being an area of provincial 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 and confirming 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 IRP Regulations related to guardianship cannot be implemented where provinces and territories of destination do not have in place approval mechanisms for guardianship relationships.

Children who cannot comply with the adoption requirements and who are in need of care may be considered for permanent residence on the basis of humanitarian and compassionate considerations.

Gender-based analysis

The Regulations relating to guardianship have taken diversity into consideration in recognizing that in some countries adoption of any kind is not an option to children in need of care. Gender dimensions may be assessed through research and data collection by sex, age and country of origin should the provisions governing guardianship be implemented.

Contact

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

Footnote a

S.C. 2001, c. 27

Footnote 1

SOR/2002-227

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