Canada's controversial ban on adoptions from several Muslim countries sparks court challenge

A major challenge of Canada's ban on adoptions from severalMuslim countries is set to play out inthe Federal Court a move somelegal observers say wouldn't be necessaryif the government wasn'tupholding what they call a "discriminatory" policy.

The case, which could be heard as early as April, comes more than five years after the federal government promised to review the ban introduced when the Conservatives last held office. Since then, the Liberal government has refused to say whether that review took placeor what it involved, despite repeated inquiries fromCBC News.

In 2013, Canada suddenly put a stop to adoptions from Pakistan, arguing Shariah law doesn't allow for birth ties between a parent and child to be severedand that the Islamic principle of guardianship (kafala) could no longer be recognized as the basis for adoption. The United States, United Kingdom and Australia all continue to allow adoptions from Pakistan, despite Canada's claim that doing so would violate its commitment to the Hague Convention.

While on paper the ban applied only to Pakistan, an investigation by CBC's The Fifth Estate found that in practice, immigration officials quietly extended it to other Muslim-majority countries, including Iran, Sudan, Iraq, Qatar, Afghanistanand Algeria.

An access-to-information request on the ban turned up dozens of redacted pages, including a June 25, 2013, memo marked "secret," titled "Canadian programming to counter the terrorist threat from Pakistan" raising questions about what national security might have to do with the adoption of children.

One legal observer saidthat not only is the ban discriminatory, but it unfairly puts the burden on individual families to argue the validity of their religious traditions.

"Frankly, I'm shocked that the government has not revisited this legislatively," said Faisal Bhabha, an associate professor at York University's Osgoode Hall Law School in Toronto. "A case like this should really not fall on the shoulders of a family.

"The last thing they need is for their government to be telling them what their religion prescribes or doesn't prescribe.... I don't see how this case could not be successful."

Pakistani court gives permission for adoption

At the centre of the court challenge is a Toronto woman who became the caregiver to her sister's three children while living in Pakistan after her sister's death. Since 2012, Jameela Qadeer has cared for her sister's son and two daughters as if they were her own, with their father unable to do so.

"When their biological mother died, I knew that I would do anything I could to make sure that they never felt motherless," she told CBC News, recalling how they'd sleep in one bed together so they wouldn't feel alone.

WATCH | Canada's ban on Islamic adoptions challenged in Federal Court:

Toronto woman takes on Canada's ban on Islamic adoptions with Federal Court challenge

8 months ago

Duration 3:37

A major challenge of Canada's ban on adoptions from many Muslim countries is set to play out at the Federal Court. Jameela Qadeer took in her sister's three children after her death more than a decade ago. A Pakistan court recognized her as their adoptive mother but after an abrupt 2013 change, Canada says the Islamic legal principle of guardianship Pakistan and other countries use doesn't meet the bar of a parent-child relationship.

Now separated from the children, she said, "I think about that now and as I'm going to sleep."

As anAhmadi Muslim facing persecution in Pakistan, Qadeer moved to Canada more thansix years ago with her biological daughter, first with protected status and now as a permanent resident. But she soon learned Canada wouldn't recognize her sister's children as her own.

Pakistan has no official adoption law. Instead, like many other Muslim countries, it relies on the principle of guardianship, which preserves lineage to protect inheritance rights, for example.

To facilitate adoptions abroad, Pakistan's courts routinely grant permission for those with guardianship orders to complete adoptions in other countries. That was the case with Canada until the 2013 ban.

Qadeer, whose husband has been working in South Africa,formalized her guardianship of the children in Pakistan in 2017. In 2019, after Canada's refusal to recognize the children as her own, she turned to a Pakistani court, which declared her their adoptive mother.

Canada still refused the children's application to join her, with an immigration officer saying that "the guardianship arrangements confirmed by the courts in Pakistan do not create a legal parent-child relationship."

When Qadeer first appliedin 2017 to bring the children to Canada, all three were minors. Today, they're 19, 23and 25 years old. Asked if their ages could hurt the case, their lawyer saidwhat matters is the date the application was filed.

Qadeer saidCanada's refusal to recognize the children as her own means they could be ripped away from a mother for a second time.

"I would feel like I've gotten heaven on Earth" if the children were here, she said.

'I believe the law is discriminatory': lawyer

Qadeer'sToronto-based lawyer, Warda Shazadi Meighen, said she believes the constitutional challenge is the first of its kind.

"I believe the law is discriminatory," she said in an interview.

The crux of the case, Shazadi Meighen said, is that if the children had been adopted through a legal system not based in Islamic law, Canada would recognize their adoptions meaning their very identities prevent them from being together as a family.

The children "are unable to reunite with their adoptive mother in Canada and unable to access permanent residence, unlike adopted family members of protected persons in Canada who do not follow Islamic law and/or are not of Pakistani origin and based in Pakistan," Qadeer's court filing says.

The filing says Canada's refusal to recognize Qadeer's relationship with the children violates the Charter of Rights and Freedoms, specifically Section 15 (equality rights), Section 2(a) (freedom of religion)and Section 7 (right to security of the person).

"The bottom line is there is no other parent for these children," Shazadi Meighen said.

In 2018, Pakistan's High Commission in Ottawa said the claim that Pakistan's legal system did not allow for adoptions was false. "We believe that the ban from the Canadian government is unjustified," spokespersonNadeem Kiani said then.

At the time, then-immigration minister Ahmed Hussen's press secretary told The Fifth Estate: "We have asked the department to initiate a review of this policy and begin consultations with Pakistan as well as provincial and territorial governments to determine a path forward to regularize adoptions from Pakistan."

Government not commenting on case

Asked by CBC News if that review ever happened, Immigration, Refugees and Citizenship Canada would not say. The department also said it could not comment on active litigation cases.

"We understand and sympathize with prospective parents who have experienced hardships while trying to bring children under guardianship placement from Pakistan to Canada," spokesperson Mary Rose Sabater said in an emailed statement.

An exact date for the proceedings hasn't been set. Shazadi Meighen saidthe court could choose to strike down the law and allow Parliament a period of time to draft new legislation. It could also decide that a specific interpretation of the law is invalid, for example.

And while the federal government could opt to appeal if the court rules against it, she and others, including her client and observers like York University's Bhabha, are hopeful Ottawa will reconsider its position.

As for the children, Qadeer triesto maintain as normal a relationship as possible with them from afar trips to the mall together have been replaced by online shopping while on the phone, for example.

Hearing that Canada doesn't recognize the only mother they've known for more than a decade "was a heartbreaking moment," said the eldest,whose name has been withheld because of the possible risks the children face as Ahmadis in Pakistan.

"She's done everything so that we can't feel alone, that we are alone here," he said, calling Qadeer his "adopted mother."

"There is a bond there, no doubt," he said.