Quebec Appeal Court rejects constitutional challenge over kafala

A constitutional challenge against federal and Quebec regulations that allow Canadian residents to sponsor a child for family reunification only if the child is their biological or adoptive child was rebuffed by the Quebec Court of Appeal in a ruling that underlines the challenges facing Canadian citizens or residents of Muslim faith who want to sponsor a child though kafala, a form of legal guardianship in Muslim law countries.

The decision, while not surprising, continues to put Canadians of Muslim faith in a bind as it compels them to transgress their religious beliefs to adopt, and is expected to make it more arduous for them to sponsor a child under kafala, according to legal experts. The ruling also confirms that only the Western family model is recognized as valid for starting a family in Canada, maintain some pundits.

“If you’re a Muslim who respects your faith through kafala, a form of care deeply rooted in Islamic tradition, Canada is closing the door on you,” remarked Awatif Lakhdar, a kafala expert and a Montreal family lawyer with Lavery. “Unfortunately, kafala is not equivalent to full adoption, and the current sponsorship system does not facilitate family reunification for a person who has resorted to kafala.”

According to Elhadji Niang, a Quebec City lawyer with Bouchard + Avocats who unsuccessfully pled the case, the ruling will “unfortunately” lead people who feel “ostracized or excluded” to try to skirt the rules. “What we’re saying to these people is that if you come, you won’t have a choice to respect the essence and culture you have – and this is contrary to the Canadian Charter,” said Niang. “I’m deeply convinced that there’s either a lack of understanding of the reality of kafala, because no matter how much we plead, explain the rule, prove it, it’s not known here, it’s brand new.” The ruling, added Niang, may be appealed before the nation’s highest court.

Family law author Michel Tétrault believes the Quebec Appeal Court ruling falls in line in with case law, albeit with some exceptions. The ruling however is singular because it examines the implications of kafala only through the prism of the Canadian Charter, and does not examine the “best interests of the child,” a fundamental guiding principle of Quebec family law, said Tétrault. Nor does it delve into international legal instruments such as United Nations Convention on the Rights of the Child, or the role that customs play in nations where kafala is a staple, added Tétrault. “The decision raises questions,” remarked Tétrault. “It opens doors, and the doors it should open are precisely those of distinguishing between the factual framework and looking at kafala in the reality of things in Morocco. What does the law and custom and society’s way of doing things mean over there so that we can understand what it’s really like.”

Abdelaziz Dardari and his wife Hanane Hasni, Canadian and Moroccan citizens of the Muslim faith, unsuccessfully tried to have a child for years when they decided to have a child entrusted to them through kafala in Morocco. That process was completed in February 2018 when the Tangier Court of First Instance issued an order granting them kafala for the child Adam, who was six months old at the time and the subject of an abandonment judgment handed down in November 2017. Beginning in April 2018, Dardari applied for temporary residence on behalf of the child, sought Canadian citizenship for a person adopted by a Canadian citizen as well as reasonable accommodation and permanent residence on humanitarian grounds – all of which were rejected.

Dardari then turned to the Quebec Superior Court where they sought recognition and enforcement of two Moroccan rulings, the kafala order and a judgment that authorized them to leave Morocco with the infant. The couple also challenged the constitutionality of federal and Quebec provisions allowing a Canadian resident to sponsor a child for family reunification purposes only if the child is his or her biological or adopted child. Quebec Superior Court Justice Jocelyn Geoffroy concluded that the recognition and enforcement of the Moroccan judgments should be granted in part, but held that the appellants failed to prove the discriminatory nature of the impugned provisions – a conclusion upheld by the Appeal Court.

Dardari and Hanane reiterated before the Appeal Court that the Muslim religion prohibits adoption, which breaks the bond of filiation. As a result, a Muslim Canadian citizen can only resort to kafala to take in an abandoned child and form a family with him. By not being allowed to sponsor a child they have taken into their care under a kafala order issued by a Moroccan court, they argued that the provisions of the federal and Quebec Immigration Regulations are discriminatory and infringe the fundamental right of Canadian Muslim citizens to freedom of religion and equality under the Canadian Charter.

Kafala

Rooted in Islamic law (sharia), kafala is a legally recognized arrangement enshrined in family law in some countries such as Algeria and Morocco that entails a commitment to voluntarily take charge of a minor, and provide maintenance, education and protection. While kafala is practiced differently from one country to another, a child taken into a family under kafala continues to keep the birth parent’s names and ties and their right to inheritance from the birth parents. Unlike adoption, which is prohibited under sharia, kafala involves the obligations of guardianship and rearing without the creation of legal ties which would produce specific legal entitlements under the laws of the country, according to UNICEF, a United Nations (U.N.) agency. The U.N. Convention on the Rights of the Child (CRC) recognizes kafala in Article 20 as a valid form of alternative child care alongside adoption and foster care.

But Canada, as well as other Western nations, do not view kafala as the equivalent to adoption. That is also the case in Quebec. In contrast to adoption under Quebec law, kafala does not lead to the establishment of a parent-child relationship between the makfoul (the abandoned child) and his kafils (the persons to whom the kafala is entrusted), points out the Quebec Court of Appeal in Dardari c. Procureur général du Québec, 2025 QCCA 892.

In order for the couple to establish that their right to freedom of religion was infringed, they had to demonstrate that the trial judge had committed reviewable errors by analyzing both the sincerity of their belief and the effect of the impugned provisions on their ability to comply with them, noted the Appeal Court. They failed for a number of reasons, beginning with Dardari’s “lack of transparency.”

It turns out that Dardari had already resorted to kafala in 1993 in a previous relationship. The then-couple notified the provincial agency Secrétariat à l’adoption du Québec (SAI) only after Bilal, a child only a few months old, had been entrusted to them. Though the SAI informed them that Bilal could not enter Canada, since kafala is not equivalent to adoption under Quebec law, Dardari nevertheless returned to Canada with the child. Faced with a fait accompli, the federal government agreed to grant the child permanent resident status. Dardari’s “lack of transparency in trying to conceal his first experience with kafala (is) an indication of bad faith that tainted his credibility,” said the Appeal Court in a per curium decision, with Justices Guy Gagnon, Jocelyn Rancourt and Frédéric Bachand sitting on the bench.

The Appeal Court also noted that Hanane, Dardari’s wife, did not testify at the trial on the merits. While she raised the issue of her religious beliefs during her examination for discovery, she did so only briefly, without providing details, prompting the trial judge to hold that it was not possible to assess the sincerity and credibility of her beliefs regarding the sharia’s prohibition on adoption – a finding upheld by the Appeal Court.

The couple, before they turned to kafala, also resorted to in vitro fertilization, using genetic material from an unknown donor. Under sharia, the use of reproductive technology is generally permitted but as long the sperm and egg come from a legally married couple and the embryo is implanted in the wife’s uterus. The trial judge took that into account, and the Appeal Court held it was a “relevant circumstantial fact” over the sincerity of their beliefs. “The judge’s conclusion that the religious motive invoked by the appellants constitutes a pretext – a pretext, moreover, invoked a posteriori to remedy their failure to comply with the applicable immigration regulations – is immune from any intervention on appeal,” held the Appeal Court.

Decision criticized

Lakhdar believes the Appeal Court adopted a formalistic and a far too high standard of proof and adhered to a much too strict reading of religious sincerity, contrary to the Supreme Court’s decision in Syndicat Northcrest v. Amselem, [2004], 2 S.C.R. 551, 2004 SCC 47. In Amselem, the SCC recognized that beliefs can be personal, shifting and even inconsistent with past behaviour, and yet the Appeal Court rejected the couple’s arguments regarding religious freedom “entirely on the basis of peripheral element” such as their use of assisted reproduction, said Lakhdar.

Niang believes that the Appeal Court failed to make the necessary distinction between bad faith in immigration procedures and the “intimate, even profound conviction of their religious faith” that they cannot adopt a child that entails a break of filiation. “There is no evidence to show that he did not have a religious conviction when he took charge of this child,” maintains Niang.

The couple also failed to sway the Appeal Court that the right to equality of Canadian Muslims is breached by the immigration regulations. The Appeal Court, heeding guidance from the SCC ruling in Sharma, held that the couple did not show that the impugned measures creates a distinction based on an enumerated or analogous ground enumerated in s. 15(1) of the Charter, even though it acknowledges that the appellants’ arguments are serious.

“Admittedly, the provisions are apparently neutral, in that they make no direct or explicit distinction based on religion,” noted the Appeal Court. “However, they arguably deprive Canadian Muslims who sincerely believe in the ban on adoption of an advantage – the right to sponsor, for immigration purposes, a non-biological child they have taken in abroad – that is available to others. By making the right to sponsor subject to the condition that the child must have been taken into care through a full adoption, the impugned provisions ensure that, unlike other litigants, Canadian Muslims who sincerely believe in the prohibition against adoption have only the possibility of sponsoring a biological child.”

The Appeal Court however held the provision does not have a disproportionate effect on Canadian Muslims because all Canadian citizens, regardless of their religious beliefs, are affected in the same way as it is impossible to sponsor a foreign child taken into care through a legal institution “akin to guardianship.”

“The only difference here is that Canadian citizens can opt for a full adoption,” said Lakhdar. “There’s a distinction to be made here between Muslims and Canadian citizens, whatever their religious beliefs, because they don’t have the same burden. Muslims can’t make full adoptions and that’s by right of religion. This ruling does not resolve this issue, which has been around for many years. We’re always going to have difficulties with people of Muslim faith who resort to kafala out of religious belief. And what is unfortunately sometimes forgotten is the best interests of the child.”

Niang also does not understand why the Appeal Court or the lower court never delved into the issue of the best interests of the child. “That’s my biggest disappointment,” said Niang. “I honestly don’t understand it, even though it was requested. Adam (the child) asked the court to allow him to grow up in an environment with someone who embraces the idea of parenthood. Even if you don’t want to call it kafala in Canada, call it with a notion we have in domestic law that differs from guardianship, because guardianship doesn’t give a person much. Unfortunately, the Court completely skipped over this issue.”

Niang wonders if the Appeal Court would have come to a different conclusion if the facts of the case were not tarnished by a “lack of transparency.” The “missing ingredient” in this case was the credibility of the appellant, said Tétrault.

Tétrault believes it’s time for an in-depth examination of the issues posed by kafala. “For me, kafala is a notch higher than guardianship, and it’s a notch higher notably because of the custom behind it, which means that for all practical purposes, the child is entrusted to someone,” said Tétrault. “So, if we had studied this properly, in depth, the reality of the thing, we might have been able to come to the conclusion that kafala is guardianship plus, or it’s more than transferring parental authority.”

This story was originally published in Law360 Canada.

Law in Quebec