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Ask Tito Mike by Michael Scott  

Citizenship by descent: parent define

by Michael Scott

It is possible for a child of a Canadian parent to claim Canadian Citizenship by descent under subsection 3(1) of the Citizenship Act. The definition of “parent” has been changed because of a recent court ruling. The Quebec Supreme Court ruled that non-biological, legal children of Canadians can have the same citizenship rights as biological children.

The change applies to children who were born through assisted human reproduction, such as surrogacy arrangements undertaken by a Canadian citizen. It means that children of same-sex couples and couples with fertility issues can qualify for citizenship rights. The qualification is that one of the legal parents must be Canadian. The claim for a citizenship certificate does not apply to adopted children who have a different route to Canadian citizenship.

The change is reflected in the IRCC Bulletin of July 15, 2020, entitled “Program delivery update: Definition of ‘parent’ for determining citizenship by descent” (www.canada.ca/en/immigration-refugee-citizenship/coporate/publications-manulas/operational-bulletins-manulas/updates/2020-parent-definition). The bulletin covers “children born abroad in the first generation who have a legal parent-child relationship at birth but no biological link to the Canadian parent.” They are now eligible to apply for citizenship by descent. Under the former interpretation of subsection 3(1) such submissions faced refusal because there was no biological link (genetic or gestational). The consequences were major, especially for parents who rely on assisted human reproduction to build their families, particularly LGBTQ2+ Canadians.

The change in understanding is evident in the Application for Canadian Citizenship Certificate for Adults and Minors (CIT 0001), which itself changed in July 2020. The form is informative and provides screening questions to ensure applicants know if they may qualify. Do not use the CIT 0001 if you or your child is a Canadian permanent resident applying to be granted Canadian citizenship by right of descent. The process is intended for parents who want to pass on the right to claim citizenship by descent to their child born outside Canada and who are themselves born in Canada or naturalized Canadians before the birth of the child in question. It covers applicants who have never possessed a citizenship certificate. Both statements are qualified by the clear warning that the applicant was not adopted by their Canadian parent because such an applicant must use a different process to apply for Canadian citizenship.

If you yourself or your legal child born outside Canada are considering applying for citizenship by descent, make sure you use the updated CIT 0001 form, which was changed effective “07-2020.” You will know if you are using the correct form by checking for this date on the lower left hand corner of page 1 of 13. The third page, or 3 of 13, identifies the changes in not only the form but the law itself regarding who is an acceptable parent in question #7: “This parent is my biological parent, adoptive parent, or legal parent at birth.” The option “legal parent at birth” is specific to parents now included and question #8 gives the applicant the chance to explain, “How did parent 1 obtain Canadian citizenship?”

The change in the citizenship certificate application is evidence of the effect of the court decision in Quebec. The application process and understanding of subsection 3(1) of the Citizenship Act have both changed to accommodate the new reality of child applicants of same sex couples and surrogacy. One of the continuing challenges for all bureaucracies is to be current and up to date with societal changes. It would appear that at least the application for Canadian citizenship certificates by descent is meeting that challenge.

Michael Scott is a Regulated Canadian Immigration Consultant (RCIC, R525678) who has 30 years of experience with Canada Immigration and the Manitoba Provincial Nominee Program. He currently works as a licensed consultant with R.B. Global Immigration Consultants Ltd. 204-691-1166 or 204-227-0292. E-mail: mscott.ici@gmail.com.

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