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Alona    Happy Birthday Canada!

Have you ever wondered why in Canada we celebrate our nation’s birthday whereas in the United States and in the Philippines they celebrate their Independence Day? I believe that the answer can be found in the way that each country became an independent nation.

In Canada, we became an independent nation from our mother country of Britain through a simple Act of Parliament. It was a peaceful transition of power and no blood was shed. However, in the United States, the Americans fought a bloody war in order to obtain their independence from the British. As for the Philippines, well, let’s just say Filipinos have been fighting more than one master from the Spaniards to the Japanese to the Americans for almost 500 years.

The roots of a country’s struggle for independence often define how that country commemorates its big day. For us Canadians, although we did not fight a war to gain our independence, this does not mean that we value our freedoms any less than our American or Filipino cousins. It simply means that we followed a different path. And in the end, all three nations are essentially celebrating the same thing – the creation of their individual nations and a celebration of their people.

As Canadians all over the world celebrate our nation’s 142nd birthday, I thought to myself that this would be a good time to write about residency rights of Canadian Citizens versus Permanent Residents.

Canadian citizens have the right to enter and remain in Canada with few restrictions. Regardless of how long you stay outside of Canada, as a Canadian citizen you have the right to re-enter the country. As a Canadian resident, however, the law states that you have the right to enter and remain in Canada so long as you maintain a minimum residency requirement. Before the Immigration and Refugee Protection Act (IRPA) came into effect, the old Immigration Act stated that residents who were physically outside of Canada for more 183 days in any 12-month period (section 24(2)) were deemed to have abandoned Canada unless they can prove that they did not intend to abandon Canada as their place of permanent residence. In other words, permanent residents had to maintain at least a six-month residency in Canada every year in order to hold on to their status. IRPA brought in more relaxed rules.

Under the current rules, section 28 of IRPA states that a Canadian resident can maintain their residency obligations if in the last five-year period, they have spent at least 730 days,

1. physically in Canada;

2. outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent;

3. outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province; or

4. outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province.

Immigration rules also provide for other means of compliance.

For most people, they will fall under the first category – “physically in Canada.” The rule of thumb to remember is this: on the day of your proposed return to Canada, count backwards five years. If during that five-year period you can show that you were physically in Canada for at least 730 days, you will be able to return and not lose your status. If you do not meet this test and you attempt to return to Canada, the officer at the port of entry can take humanitarian and compassionate considerations into account if there is a child involved. The law states that the officer can justify the retention of permanent resident status over any breach of the residency obligation if it is “in the best interest of a child.” If a person is found not to be a permanent resident because they failed to meet the test, there are certain avenues of appeal available.

There are many reasons why someone would have to be outside of the country for extended periods of time – family obligations, business or employment opportunities, extended holidays, etc. The relaxed rules make it easier for people to maintain their Canadian resident status. However, past a certain point, it really is misleading to refer to someone as a “Canadian permanent resident” if they have no ties to the country. If someone spends years trying to immigrate to Canada only to spend a few months here before returning to their country of origin or another country, for whatever reason, why should they be allowed to return? The law says they can, so long as they can still meet the residency test. However, philosophically, if someone voluntarily chooses to abandon Canada, why should she accept them back, especially when there are hundreds of thousands of people around the world who are just waiting for their chance to call themselves Canadian citizens or residents?

As we celebrate Canada’s birthday this July 1st, let us take a moment to reflect upon what it means to be a Canadian. As citizens and residents of this great country, we have many opportunities and sacred rights that millions around the world would literally lie, cheat, steal or even kill for. Yet we often take our lives as Canadian residents and citizens for granted. I often think that in order to truly appreciate what it means to be Canadian, we have to look at Canada through the eyes of a non-Canadian. When you travel around the world you soon begin to realize how Canadians are envied and respected for all that our country offers us. The next time we want to complain about our country, let’s remember that no matter how bad off we think we are, in reality, we are in a much better position than the majority of the world.

Happy Canada Day everyone!

The content of this article is not intended as legal advice and is for information purposes only. Should you require legal advice on a specific issue relating to the contents of this article, please seek the services of a legal professional.

Alona C. Mercado is a lawyer practicing in Winnipeg with the law firm of Monk Goodwin LLP. She was called to the Manitoba Bar in 1999 and the Ontario Bar in 2003. Her preferred areas of practice include wills and estates, committees, real estate, business and commercial transactions, and immigration law. Alona can be reached at (204) 956-1060 ext. 233 or amercado@monkgoodwin.com.

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