Danielle Smith:

This was maybe good timing on the part of the lawyer that was representing these five couples that adopted Japanese children, and then found that for no apparent reason, they weren’t allowed to bring the kids back to Canada. You’ve got, it sounds like, in some of these cases one parent in Japan with their new adopted child while mom or dad is at home, and it’s been going on for months now. What in the world is going on here? Well, it turns out finally, with the pressure on this, five British … BC families are now going to be able to bring their Japanese-born kids home that they adopted in Japan, bring them back to Canada.

The way this is described is the families found themselves ensnared in an immigration nightmare after the Canadian government refused to issue visas to their newly-adopted children, and the confusion over a directive from Japan to the United States on international adoptions. This sounds all so very confusing. When I’m confused by an immigration issue, I know who to call. I call Raj Sharma. He’s a Calgary immigration lawyer. He’s with Stewart Sharma Harsanyi immigration and criminal lawyers, [inaudible 00:01:08] talk about it. Raj, thanks so much for being with me.

Raj Sharma:

My pleasure, Danielle.

Danielle Smith:

What happened here? Because I’ve never even heard of this. But I can imagine that there are all kinds of families that go abroad to adopt kids, and I’ve never heard of them getting caught up like this. What can you tell us about what happened?

Raj Sharma:

It’s a frustrating area to practice in, Danielle, because intercountry adoption is extremely complex process. Even if it’s in the most ideal circumstances, the process will take time. Many times, it’s just this sort of chicken and the egg type of scenario. When you’re dealing with a non-Hague country, so there’s this Hague Convention that a lot of countries have signed on to, and that is supposed to facilitate intercountry adoptions. Unfortunately, Japan is not a Hague country.

Canada, first, you need to make sure your adoption complies with our Canadian laws and in particular our provincial requirements. There’s home studies and things of that nature. You then need to do the adoption in accordance with the foreign country. Every country has different requirements, and there’s this sort of hodgepodge of requirements. In this case, as far as I could glean, the Canadian officers were requiring something from the Japanese, some type of registration or a court order, for example, and I’ve seen that before in other countries as well. For example, in Ghana, we were trying to get some children. There was a Ebola issue, and we kept getting this snag, which was we need this registered with this ministry. We finally had to get something from a court saying that, no, once the Ghanaian court approves it, you’re basically good to go.

You have Canadian visa officers with no particular expertise on Japanese or foreign law then making statements or make findings that this adoption is not in accordance with the country of origin for the children, for example, or the responsible country. All of a sudden, the brakes are put on this endeavor, and families get caught in the midst. We have very, very young children that are unable to start their lives with their families back in Canada, and we have people spending weeks in hotel rooms trying to sort out a legal, bureaucratic, international law mess.

Danielle Smith:

Tell me what you think happened, reading between the lines. They’ve been fighting and fighting for months, and then bang, all of a sudden, they’re saying, “Okay, you’re approved.” That happened just on Friday. What do you think happened there?

Raj Sharma:

My best guess is that they were finally able to convince some paper-pusher that they’ve complied with the Japanese requirements, and that may have taken, for example, a Japanese court order or a legal opinion from a Japanese lawyer. Look, Danielle, this is why international adoptions are at a all-time low in Canada. We are less than half the numbers of international adoptions than 2012. It’s very unfortunate. We have individuals that have the means and ability to provide a fantastic life to a child in one of the best countries in the world, particularly to raise children in. Again, we just have onerous administrative issues. Frankly, if a couple were to come to me and take advice, I would encourage them to think twice.

It is a very, very difficult process, and in fact, it’s something that we should be encouraging and making it easier. I understand. I understand that the contra-arguments that child trafficking is a problem, that there’s some countries with nascent or inchoate legal institutions, but that is not the case for most of them. The sad part is, even if you manage to navigate this labyrinth, this bureaucratically-created labyrinth, and your adoption is approved, it still has to go to immigration. An immigration officer can then refuse the application, saying that there’s not a genuine parent-child relationship. This is an area where I prefer not to practice, because there’s just so much heartbreak and so many tears and so many lost years.

Danielle Smith:

That’s really too bad. Is there anything that the government could look to? Is there any country that does this particularly well that we could look to to try to solve these problems for the future?

Raj Sharma:

Even the US has a marked decline in international adoptions. Part of the issue, of course, is that you really have to do your research before you go down this path. If you look, for example, some countries are banning international adoptions, so make sure if you are thinking about it, make sure that the country that you’re hoping to adopt a child from is not on that banned list. For example, it includes Russia. Russia will not allow adoptions to a country which allows same-sex marriage.

Danielle Smith:

Really?

Raj Sharma:

Yes.

Danielle Smith:

So that would be virtually all Western liberal democracies now.

Raj Sharma:

Yes. Every country has these sort of unique sort of peccadilloes. Again, a lot of research is required. I would again work with a very, very reputable, experienced, internationally-experienced adoption agency that’s done this before. There’s various countries on this list, and there’s some provinces that will not allow adoptions from certain countries, for example, Nepal, just because of the massive child trafficking that occurs out of that country. Again, that’s probably for good reason.

Danielle Smith:

Well, thank you for letting us be aware of that. Can I ask you? I know it’s getting into a controversial area, but we’ve spent so much time talking about what Donald Trump is doing at the border. I’m curious to know whether or not we have any strange elements in our law that might end up resulting in the same outcome. We know that we’ve got a number of illegal migrants coming across the border in Quebec, but I don’t think that we’ve got the same issue of separating families while they go through criminal proceedings. What is it that we do differently that is keeping families together?

Raj Sharma:

Part of it is scale. It’s hard to compare the numbers that we have in Canada in terms of refugee claimants or border crossers to the United States, where you’re talking about hundreds of thousands of individuals that cross the border. We do have approximately 150 children in detention at this time. Our detention facilities are somewhat different than the US from what I can gather. In November 2017, Ralph Goodale announced policies to limit wherever possible, wherever humanly possible, the occurrence of keeping children in detention.

Danielle Smith:

Why would we have kids in detention? Because I thought it was interesting. Everyone last week was talking about Melania Trump’s jacket when she went and visited kids at the detention center. What I focused on was the fact that, of the 55 kids she met, only six of them had been separated from their parents. The rest had come across the border unaccompanied by an adult. I don’t understand the dynamic that’s happening there. I’m assuming that we must have a similar situation, but can you describe what’s going on with that?

Raj Sharma:

For sure. For the large part, you have unaccompanied minors in the US because they’re crossing the border to join family that are already in the US. If you look at unaccompanied minors that come into Canada, they typically make a refugee claim here. [crosstalk 00:08:54]. We would typically … Well, I can’t imagine that happening very, very often, but an unaccompanied minor making a refugee claim, we detain for very specific reasons. One ground of detention, for example, could be identity issues. One ground could be danger, which is obviously not the issue there. Some elements, for example, you will have individuals facing removal that have children that are removal-ready. Now, in that case, the child is detained with the mother.

Danielle Smith:

So the 150 kids that we would have in detention would not be unaccompanied for the most part? They would be with a related adult?

Raj Sharma:

For the vast majority. For the vast majority of the children in detention, they are with their parents or their mother specifically. There’s two or three of these facilities, two in Ontario that I know of.

Danielle Smith:

Should we be concerned about that? Should we be doing some more reporting on the circumstances there? Again, I just find it strange that we spend so much time focusing on American politics, and we don’t even really know what’s going on in our country. I didn’t realize that there were any kids at all in detention, but do we have any reason to think that there’s something we should take a closer look at?

Raj Sharma:

I always sort of look askance whenever we Canadians, look down at US immigration policies. I can almost guarantee that for every immigration policy or some sort of crossing of the line, I can find something analogous in Canadian immigration law and practice.

Danielle Smith:

The question I guess I would have is we’re going to see more of this, right? I mean, you and I have talked before. There’s an estimate of 11 million illegals in the United States, and they’re going to be cracked down on. They’re accustomed to living in a wealthy society. I’m not sure that we know how we’re going to deal with this if we start seeing even more people come across the border.

Raj Sharma:

I think, again we’ve discussed this, but when you see this sort of harsh rhetoric and once you see, for example, detention, and if the US is now going to be, and apparently going to be, housing or, quote-unquote, accommodating such families and these individuals, that’s a huge Central American surge. They’re going to be doing so in these sort of militarized tent cities. I think you are going to see a situation where individuals then bypass or attempt to bypass the US immigration and enforcement system all together, and just keep heading north, particularly with family. Again, I’ve said this before. A family with children from Central America coming into Canada, that’s probably a good refugee claim, and that’s probably a even better humanitarian and compassion application. At some point, that [thought] will enter that diaspora in the US, and then you will start seeing a trickle and then slowly more.

Danielle Smith:

Have we seen anything? Every time I check in with you, I would say, any signs that we’re getting a handle on it at the federal level? I don’t know if we’ve brought the stats out for May yet, but the last time we spoke, I think we had them out for April. We were already beginning to see more people coming across illegally than through the legal route. Has anything happened to stem the flow?

Raj Sharma:

My own guess, and I think I’ve been correct now two years in a row. My guess is that we’ll crack six figures this year of border crossers.

Danielle Smith:

Over 100,000 people.

Raj Sharma:

Yes.

Danielle Smith:

Mostly coming into Quebec.

Raj Sharma:

Yes.

Danielle Smith:

Have we seen any increase in the processing, any increase that’s significant enough to be able to clear the backlog and be able to keep up with that?

Raj Sharma:

There’s no chance. As I’ve said before, when you’re throwing solutions at an exponentially growing type of or a geometric type of growth here, it’s tough to handle with resources. You would need some sort of systemic or scalable type of solution to get a handle on these types of numbers. I suppose you could hope and pray that the numbers drop precipitously, but again, seeing the rhetoric and the actions from US, we have a southern neighbor now that has no reason to turn off the taps and every reason to do the opposite.

Danielle Smith:

When does that begin to create a problem? I think it’s already beginning to create tension in Quebec, but I’m just wondering how many people we can absorb before we begin to have real problems in Canada.

Raj Sharma:

I think it’s beginning. I’ve been on various sort of call-in shows. I’m hearing those concerns even now. It is something that I think you can tie all the way back to the US invasion of Iraq that second time around. If there wasn’t that invasion, there would not be ISIS, and there would not be the Arab Spring. You would not have Syria, and you would not have Libya, and you would not have the migrants by the millions crossing into Europe. You would not have the growth of far-right wing parties in Europe. You would not have Brexit, and arguably you would not have Donald Trump.

It’s just one of those fundamental nativist sentiments. I saw it with people of color. I saw it with UK nationals of Indian descent complaining about EU migrants from Poland. It just blew my mind.

Danielle Smith:

So we’re not seeing … I guess I don’t know what the breaking point is in Canada. I don’t know what Canadian policy would be, because in some ways, we’re far more European in our outlook. But then we also have been able to rely on the US being essentially that barrier to prevent a large number of illegal migrants crossing the border. Now we’ve got a reverse situation [crosstalk 00:15:11].

Raj Sharma:

We’ve had the luxury. We’ve had that luxury of picking our immigrants for decades.

Danielle Smith:

And now that’s gone.

Raj Sharma:

To some degree.

Danielle Smith:

All right. Well, Raj, thanks again for the update. I always appreciate your perspective.

Raj Sharma:

My pleasure.

Danielle Smith:

We’ll talk again.