A-1188-88
Ajaib Singh (Appellant)(Applicant)
v.
Minister of Employment and Immigration
(Respondent)
A-259-89
Gurbax Singh Brar (Appellant)(Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: SINGH V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (CA.)
Court of Appeal, Hugessen, MacGuigan and Des-
jardins JJ.A. Ottawa, May 10 and June 5, 1990.
Immigration — Appellants seeking to sponsor as permanent
residents sons by adoption under Indian legislation — Appeal
from Immigration Appeal Board's decision no valid adoption
— Neither visa officers nor Board considering rebuttable
presumption of valid adoption created by Hindu Adoptions
and Maintenance Act, 1956, s. 16 upon production of regis
tered record of adoption — Indian adoption deeds not making
sponsorees adopted sons for purposes of Canadian immigra
tion law unless adoption taking place prior to thirteenth
birthdays as required by Immigration Regulations, 1978, defi
nition of "son" — Visa officers and Board free to examine all
evidence and conclude no proper adoption occurred — Deter
mination of whether Hindu Adoptions and Maintenance Act,
1956 complied with only part of responsibility given to visa
officer and Board.
Conflict of laws — Appellants seeking to sponsor as perma
nent residents sons by adoption under Indian legislation
Deeds of adoption dated substantially after ceremonies of
giving and taking required under Indian law — Immigration
Appeal Board finding no valid adoption without considering
rebuttable presumption of valid adoption created by Hindu
Adoptions and Maintenance Act, 1956, s. 16 upon production
of registered record of adoption — Reference to texts on
conflict of laws — Although question of extent to which
rebuttable presumptions created by foreign law applicable in
Canadian courts raised, unnecessary to decide whether pre
sumption procedural or substantive — S. 16 not giving pre
sumptive validity to recitals in deed of adoption — Case turns
not on application of general rules of private international law,
but on specific rules of Canadian statutory interpretation
Presumptions imposed by Indian law relevant to status of
adoptees in India of no assistance in determining qualification
as "adopted son" under Canadian immigration law.
Construction of statutes — Immigration Regulations, 1978,
"son", "adopted" — Definition of "son" including male
adopted before thirteenth birthday — "Adopted" meaning
adopted in accordance with laws of any province or country
Immigration Appeal Board to determine whether prior to
thirteenth birthday adoption "in accordance with laws of
India by applying Canadian rules of statutory interpretation,
not conflict of laws principles.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Immigration Act, R.S.C., 1985, c. 1-2.
Immigration Regulations, 1978, SOR/78-172, s. 2(1) (as
am. by SOR/85-225, s. 1).
The Hindu Adoptions and Maintenance Act, 1956, ss. 11
(vi), 16.
AUTHORS CITED
Castel, J.-G. Canadian Conflict of Laws, 2nd ed.
Toronto: Butterworths, 1986.
Cheshire and North Private International Law, 1 1 th ed.
by P.M. North and J.J. Fawcett, London: Butter-
worths, 1987.
McLeod, James G. The Conflict of Laws, Calgary,
Alberta: Carswell Legal Publications, 1983.
COUNSEL:
David Matas for appellants (applicants).
Gerald L. Chartier for respondent.
SOLICITORS:
David Matas, Winnipeg, for appellants
(applicants).
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HUGESSEN J.A.: These two appeals raise the
same question of law although the facts underlying
them are, of course, different in a number of
respects.
In each case, the appellant has sought to spon
sor, for admission to Canada as a permanent resi
dent, a person whom each appellant claims as his
son by virtue of adoption in India under the provi
sions of the applicable Indian legislation, The
Hindu Adoptions and Maintenance Act, 1956. In
each case the enquiry conducted in India by a visa
officer led the latter and, in due course, the Immi
gration Appeal Board to the conclusion that no
valid adoption had taken place at the time alleged.
In each case there was a registered deed of adop
tion produced, bearing a date substantially after
the time of the alleged adoption.
In Court file A-1188-88, Ajaib Singh, the adop
tion deed purports to have been executed August
25, 1983, and registered the same day. It recites an
adoption and a ceremony of giving and taking
"about 10/12 years ago".
In Court file A-259-89, Gurbax Singh Brar, the
purported adoption deed is dated January 31,
1984, and registered the following day, February
1, 1984. It does not indicate the date of the
adoption but the appellant admitted that there had
been no ceremony of giving and taking in 1984 and
took the position that the actual adoption and
ceremony had taken place more than five years
previously, in October 1978.
The importance of the giving and taking
ceremony flows from paragraph 11(vi) of The
Hindu Adoptions and Maintenance Act, 1956:
11. In every adoption, the following conditions must be
complied with:
. . .
(vi) the child to be adopted must be actually given and taken
in adoption by the parents or guardian concerned or under their
authority with intent to transfer the child from the family of its
birth [or in the case of an abandoned child or a child whose
parentage is not known, from the place or family where it has
been brought up] to the family of its adoption; [References
omitted.]
The narrow point of law to be decided in these
appeals arises from the fact that in neither case
does the visa officer, in first instance, or the Immi
gration Appeal Board, sitting in appeal of the
original decision, appear to have given any con
sideration to the rebuttable presumption created
by the provisions of section 16 of The Hindu
Adoptions and Maintenance Act, 1956:
16. Whenever any document registered under any law for
the time being in force is produced before any court purporting
to record an adoption made and is signed by the person giving
and the person taking the child in adoption, the court shall
presume that the adoption has been made in compliance with
the provisions of this Act unless and until it is disproved.
At first blush the issue thus raised appears to
open the much vexed question in private interna
tional law of the extent to which rebuttable pre
sumptions created by the applicable foreign law
are to be applied in the Court of the forum.
Adoption, being a question of status, is, as a
general rule, governed by the law of the place
where the adoption is alleged to have taken place.
Is the Immigration Appeal Board, a Canadian
court, bound to apply the provisions of section 16
in determining whether or not there has been an
adoption in India?
I have indicated that the question is a vexed one.
To make the point, it is enough to give quotations
from three of the leading authors.
Castel' puts the matter most succinctly:
Irrebuttable presumptions of law, such as a presumption of
survivorship, are matters of substance for the lex causae. It is
uncertain whether rebuttable presumptions of law, such as the
presumption of marriage, are matters of substance, and so
governed by the lex causae, or matters of procedure, and so
governed by the lex fori. [References omitted.]
Cheshire and North' outline the problem some
what more fully but no more conclusively:
A controversial question is whether presumptions and burden of
proof are matters that affect procedure or substance. The
classification of presumptions will depend on their nature and
effect. Presumptions of fact pose no problem for they raise no
legal issue. Presumptions of law may be either irrebuttable or
rebuttable. The former would appear to be substantive in
effect, but it is not clear how rebuttable presumptions should be
classified. It has been suggested that those which apply to a
restricted class of case should be treated as substantive, but
that it is uncertain how presumptions of general application,
such as the presumptions of death, marriage or legitimacy,
should be classified. There is authority for treating the pre
sumption as to the validity of a marriage as substantive so that
a marriage may be upheld under the presumption of the foreign
governing law. But if the English law presumption favoured the
validity of the marriage whilst the foreign one did not, it is
tempting to conclude that the public policy of the forum in
favour of validity would prevail. [References omitted.]
' Canadian Conflict of Laws, 2nd ed. Toronto: Butterworths,
1986, at pp. 121 and 122.
2 Cheschire and North Private International Law, 11th ed.,
London: Butterworths, 1987, at pp. 84 and 85.
Finally, McLeod' puts the matter thus:
The presumptions of advancement resulting trust, validity of
marriage, legitimacy, and death, are all presumptions utilized
to prove facts which may lead to a conclusion of law. The effect
of these presumptions, often called rebuttable presumptions of
law, is that upon the proof of basic facts, for example, a
conveyance from husband to wife, the court must find the
presumed fact, for example, the husband intended to convey the
property to the wife, unless the contrary is proven. Dicey and
Morris suggest a further breakdown of such presumptions into
those which only apply "in certain contexts and those which
apply in all types of case." It is difficult to see the reason for
this breakdown since all of the presumptions have the same
purpose or function, i.e., to force a conclusion of fact in the
absence of proof to the contrary. Further, it is difficult to see
how the learned authors have determined which presumptions
belong in which category. All of these rebuttable presumptions
of law are merely devices to assist the court in reaching
conclusions on which legal rights can be determined, i.e., was
there a valid marriage, was the child legitimate, what was the
testator's intention. As such, they bear a similarity to simple
presumptions of fact. Each of the presumptions deals not with
the creating or extinguishing of a right, but with the manner of
proving entitlement to the right. On the other hand, irrebut-
table presumptions of law determine the existence of a right
because the legal conclusion must follow from the application
of the presumption. In the case of irrebuttable presumptions of
law there can be no "proof to the contrary".
The issue is further clouded by the right/remedy distinction.
Some rebuttable presumptions of law are seen to be so closely
connected to the existence of substantive rights as to be charac
terized as matters of substantive law. No consensus can be
found for the characterization of such presumptions.
Where rebuttable presumptions of law are necessary to
enable the court to arrive at the facts on which the legal issue
can be determined or the connecting factor interpreted and
applied, or to establish jurisdiction, the presumptions should be
regarded as procedural. Practically, in such cases, the conflict
of laws analysis of the forum has indicated no other system of
law to which reference may be had. It is only through the
determination of the legal issue, the assumption of jurisdiction,
and the interpretation of the connecting factor that the lex
causae is determined. In these cases, whether the presumption
relates to the right or the remedy, it must be classified as
procedural.
3 The Conflict of Laws, Calgary, Alberta: Carswell Legal
Publications, 1983, at p. 218.
When a rebuttable presumption of law becomes relevant at
any other stage in the proceedings, the argument in favour of
utilizing the lex fori is less compelling. Where such presump
tions are more closely tied to the actual right than the determi
nation of the legal issue, related facts, or the connecting factor,
they ought to be characterized as substantive. [References
omitted.]
On the view I take of this matter, however, it is
not strictly necessary for us to resolve the question
as to whether the presumption created by section
16 of The Hindu Adoptions and Maintenance Act,
1956 is substantive or procedural. My reasons are
twofold.
In the first place, even if the presumption creat
ed by section 16 is to be applied by Canadian
courts, it can be of no help to the present appel
lants. In Court file A-1188-88, Ajaib Singh, the
issue is not whether or not the appellant adopted
the child (in fact, the record also shows a valid
Alberta adoption in 1986) but whether such adop
tion took place prior to the latter's thirteenth
birthday so as to bring him within the definition of
"son" in subsection 2(1) of the Immigration
Regulations, 1978. 4
2. (1) ...
"son" means, with respect to a person, a male
• • •
b) who has been adopted by that person before having
attained thirteen years of age;
Since the sponsored boy was born December 20,
1968, the adoption deed entered into in 1983 could
not make him an adopted son for the purposes of
Canadian immigration law unless it were estab
lished that such adoption had, in fact, taken place
prior to his thirteenth birthday. Section 16 of The
Hindu Adoptions and Maintenance Act, 1956 does
not give any presumptive validity to the recitals in
the deed of adoption and, accordingly, the visa
officer and the Immigration Appeal Board were at
liberty to do as they did and examine all the
evidence and conclude that no proper adoption had
taken place at the relevant time.
4 SOR/78-172, as am. by SOR/85-225, s. 1.
In Court file A-259-89, Gurbax Singh Brar, the
matter is even clearer. The appellant himself pro
duced the adoption deed dated 1984 together with
an authorizing power of attorney dated the same
year. He admitted, however, that the purported
adoption did not take place at the time of the deed
but in 1978, more than five years prior to the
execution of the power of attorney. There was thus
an inherent contradiction between the deed and
the position advanced in the evidence of the party
producing and relying upon it. Any validity
required to be presumed from the production of
the deed was itself disproved by the very circum
stances of such production. Since the presumption,
if applicable, is merely rebuttable, the result was,
once again, to leave the visa officer and the Immi
gration Appeal Board free to reach their own
conclusion on the whole of the evidence.
My second reason for concluding as I do flows
from the fact that this case must ultimately turn
not on the application of the general rules of
private international law but on the more specific
rules of Canadian statutory interpretation. I have
already quoted the relevant part of the definition
of the word "son" in subsection 2(1) of the Immi
gration Regulations, 1978. The definition of
"adopted" is also relevant:
2. (1) ...
"adopted" means adopted in accordance with the laws of any
province of Canada or of any country other than Canada or
any political subdivision thereof where the adoption created a
relationship of parent and child;
The question thus, for the visa officer and the
Immigration Appeal Board in each of these cases,
was not to know whether the persons sought to be
sponsored by the respective appellants had the
status in India of being their adopted sons, a
question to which the presumption created by sec
tion 16 of The Hindu Adoptions and Maintenance
Act, 1956 would be relevant if it were applicable.
Rather, the question in each case was to know
whether there had been, prior to the child's thir
teenth birthday, an adoption "in accordance with
the laws of" India which created a relationship of
parent and child so as to make the adoptee the
sponsor's "son". This is an issue of Canadian law.
The enquiry is directed more to historical fact than
to present status and the determination whether
The Hindu Adoptions and Maintenance Act, 1956
has been complied with is only a part of the
responsibility which Canadian legislation gives to
the visa officer and the Board to decide whether an
application for landing in Canada should be
approved. Presumptions imposed by Indian law on
Indian courts, which might be relevant if the issue
were simply to know, in private international law
terms, the status of the sponsorees in India, are of
no assistance in determining if either of them
qualifies as an "adopted son" for the very special
purposes of the Immigration Act [R.S.C., 1985, c.
I-2] and Regulations. I would add that since the
presumption in section 16 is directed specifically to
"the court", it is difficult, in any event, to conceive
of it as being other than procedural since it is
unlikely to have been the intention of the Indian
Parliament to bind a court over which it had no
authority or jurisdiction.
I would dismiss the appeals.
MACGU1GAN J.A.: I concur.
DESJARD1NS J.A.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.