Limitations on Citizenship by Descent

There are two ways that a person can be born a Canadian citizen. The first is if a person is born in Canada. The second is if a person is born to a Canadian parent, also known as citizenship by descent.  However, it is important for Canadians abroad to note that as of 2009, citizenship by descent is effectively limited to one generation born outside Canada.

The Legislation

Section 3(3)(a) of the Citizenship Act (the “Act“) provides that:

(3) Subsection (1) does not apply to a person born outside Canada

(a) if, at the time of his or her birth or adoption, only one of the person’s parents is a citizen and that parent is a citizen under paragraph (1)(b), (c.1), (e), (g) or (h), or both of the person’s parents are citizens under any of those paragraphs;

Subsection 3(1)(b) of the Act provides that:

3. (1) Subject to this Act, a person is a citizen if

(b) the person was born outside Canada after February 14, 1977 and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen;

Subsection 3(1)(c.1) provides that:

3. (1) Subject to this Act, a person is a citizen if

(c.1) the person has been granted citizenship under section 5.1 (editor’s notes: this discusses permanent resident spouses of citizens working abroad essentially for the government);

Subsection 3(1)(e) provides that:

(3) Subsection (1) does not apply to a person born outside Canada

(e) the person was entitled, immediately before February 15, 1977, to become a citizen under paragraph 5(1)(b) of the former Act

Subsection 3(1)(g) provides that:

3. (1) Subject to this Act, a person is a citizen if

(g) the person was born outside Canada before February 15, 1977 to a parent who was a citizen at the time of the birth and the person did not, before the coming into force of this paragraph, become a citizen;

Subsection 3(1)(h) provides that:

3. (1) Subject to this Act, a person is a citizen if

(h) the person was granted citizenship under section 5, as it read before the coming into force of this paragraph, the person would have, but for that grant, been a citizen under paragraph (g) and, if it was required, he or she took the oath of citizenship;

Finally, regarding subsections 3(1)(g) and 3(1)(h), subsection 3(7)(e) provides that:

(7) Despite any provision of this Act or any Act respecting naturalization or citizenship that was in force in Canada at any time before the day on which this subsection comes into force

(e) a person referred to in paragraph (1)(g) or (h) is deemed to be a citizen from the time that he or she was born;

An Example

If all of that legislation seems confusing, then consider the following (slightly modified) scenario that was recently before the court in Rabin v. Canada (Citizenship and Immigration), 2010 FC 1094.

Abe Simpson was born in Belgium in 1938. In 1957, he became a naturalized Canadian citizen.  In 1960, he married Mona Olsen, an American. They moved to the United States. In 1963, Homer Simpson was born.  In 1973, Abe Simpson gave up his Canadian citizenship by becoming a citizen of the United States. (Dual Citizenship was prohibited in Canada from 1949-1977).

Marge Bouvier was born in Belgium in 1956.

In 1981, Marge Bouvier and Homer Simpson wed in Springfield, USA.

In 1983, Bart Simpson was born.

In 2010, both Homer Simpson and Bart Simpson applied for proof of their Canadian citizenship.

What do you think happened?

Homer Simpson is a citizen by virtue of s. 3(1)(g) of the Act.  He was born outside of Canada before 1977.  Even though his father, Abe Simpson, was born in Belgium, Canadian law deems Abe to be a citizen at the time of birth because of s. 3(7)(e) of the Act.

Bart Simpson, however, is not a citizen. This is because s. 3(3)(a) specifically provides that an individual is not a Canadian if their sole Canadian parent relied on s. 3(1)(g) to become a Canadian.

Implication

The implication of the 2009 amendment to the Act can be devastating for unsuspecting Canadians abroad. Those who are considering having children abroad should seek advice to understand the citizenship implications of doing so.


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