1st Generation Quirk

[Gr8Alan]

Hi all,

Firstly, I'm not trying to get advice that I'm a Canadian... I'm not Canadian... but in doing some research for my family tree I found an interesting quirk in the 1st/2nd Generation born overseas rules on Canadian Citizenship.

Ok, so my Grandfather was born in Ontario in 1912. Moved to Australia in the 1930's. So he would have become Canadian on 1 Jan 1947 with the way the Citizenship was created. He always considered himself Canadian, even got a Canadian pension. Never took Australian Citizenship.

Easy so far.

My Father was born in Australia in 1940. He would have become Canadian on 1 Jan 1947, as he was born to a Canadian Parent. Section 4(b)(i) of the 1947 Act covered him. He would have lost his Citizenship as he didn't file to retain it when he was 21, but he would have had it reinstated in the 2009 changes. So he is Canadian.

Still easy so far.

The quirk.... he is both a First Generation born overseas and a "Zero" Generation.

How so? Well, the 2009 Act makes it pretty clear he is considered 1st Generation abroad when it reinstated his Citizenship, and so someone like me is 2nd Generation and can't be Canadian. He was born overseas to a Canadian Parent, and so is first Generation overseas.

But there was a clause in the 1947 Act, which gave him his initial citizenship, that deals with subsequent children which read,

5. A person, born after the commencement of this Act, is a natural-born Canadian citizen:-
(a) if he is born in Canada or on a Canadian Ship;
or
(b) if he is born outside of Canada elsewhere than on a Canadian ship, and

(i) his father, or in the case of a child born out of wedlock, his mother, at the time of that persons birth, is a Canadian citizen by reason of having been born in Canada or on a Canadian Ship, or having been granted a certificate of citizenship or having been a Canadian citizen at the commencement of this Act, and​

Section 5(b)(ii) then talks about the registration of birth....

So, as you can see his Children (my generation) would have been in a class that made us equivalent to First Generation had my Father been a Canadian at the time of the birth. He wasn't... he had lost it through the non-retention clause at the point my sisters and I were born in the late 1960's, and so we are not Canadian, as he wasn't a Citizen at the time of our births.

But, because he was born before 1947 he fell into a "special" class who could be considered a generation "zero" even though he was born overseas, and his children considered first generation abroad. Until the 2009 Act, which changed his generation status to being first generation, and his children to second generation.

It's particular to those born overseas to Canadian born parents, and who became one of the original Canadian citizens on 1 Jan 1947.

As I said.... just an interesting quirk i found while researching the family tree....

 

[alphazip]

So, as you can see his Children (my generation) would have been in a class that made us equivalent to First Generation had my Father been a Canadian at the time of the birth. He wasn't... he had lost it through the non-retention clause at the point my sisters and I were born in the late 1960's, and so we are not Canadian, as he wasn't a Citizen at the time of our births.

Correct, but even if your father had still been a Canadian citizen when you and your sister were born, your births would have had to be registered with the Canadian government for you to have become Canadian citizens.

 

[Gr8Alan]

Sort of true.

To be Canadian all along we would have had to be registered.

But if he had still been Canadian when we were born, we would have been when we were. Then lost it. Then had it reinstated with the other general restoring of lost citizenship.

Interesting isn't it.

 

[alphazip]

Sort of true.

YES To be Canadian all along we would have had to be registered.

NO But if he had still been Canadian when we were born, we would have been when we were. Then lost it. Then had it reinstated with the other general restoring of lost citizenship.

YES Interesting isn't it.

If your father had been a Canadian citizen when you were born, you would have been Canadian IF your birth was registered. Then, the 1976 Canadian Citizenship Act did away with having to retain* (going forward, not retroactively), and since you were a minor, you would never have lost your Canadian citizenship and would have it to this day. In fact, if you had any children born before 2009, they would be Canadian too.

If your father had been a Canadian when you were born and your birth was not registered, you would not have received citizenship in 2009, because you are the 2nd generation born abroad.

*The 1976 law instituted a new retention law for those born abroad in the 2nd generation in/after 1977. That ended in 2009.

 

[Gr8Alan]

If your father had been a Canadian citizen when you were born, you would have been Canadian IF your birth was registered. Then, the 1976 Canadian Citizenship Act did away with having to retain* (going forward, not retroactively), and since you were a minor, you would never have lost your Canadian citizenship and would have it to this day. In fact, if you had any children born before 2009, they would be Canadian too.

If your father had been a Canadian when you were born and your birth was not registered, you would not have received citizenship in 2009, because you are the 2nd generation born abroad.

*The 1976 law instituted a new retention law for those born abroad in the 2nd generation in/after 1977. That ended in 2009.

That's exactly the way I see it. The original law that was in place when I was born had the quirk.... where it counted him as a virtual generation zero overseas even though he was really generation one overseas. Under the original laws I would have been first overseas generation.... but as I said, that didn't apply to me as Dad wasn't Canadian when I was born.

As I said... I know I'm not Canadian, and have no claim at all to Canadian citizenship. Just thought it funny to point out a quirk in the rules.

In fact, I believe that under current Canadian Law they recognize my Father as having been Canadian without interruption... as it was made retrospective for those who lost it, back to the point they lost it, but only for them, not as it relates to others. So that still doesn't mean he was Canadian when I was born... even though Canadian law now sees him as having been Canadian all along.

Ahhh law makers.... the same the world over.... I think they just like to mess with our heads....

 

[Gr8Alan]

Ok, I have a follow up question here.... I was showing this citizenship stuff to my cousin, he is the son of one of my Dad's younger brothers... so in the same boat as me... and he wanted to know something.

His dad, like mine born before 1 Jan 1947, would have gone through the same scenario as my Dad.



Both our fathers become natural born Canadian on 1-Jan-1947, having been born in Australia to a Canadian born father.

Loss of Citizenship when turning 22 as there was no retention filed.

My cousin (and me for that matter) is born in the 1960's, his father isn't Canadian at the time, so he can't be registered and isn't Canadian.

Our Fathers both become citizens again in 2009 with the amended laws, retrospective to when they lost it.


Now, my contention is that my Cousin and I can't be Canadian, as our Dad's were not Canadian when we were born, and although they have been retrospectively given their citizenship back, we are second generation under the new rules. The first generation quirk I pointed out earlier means under the old laws in place when we were born, we would have been considered 1st generation at the time, but neither father was Canadian then, and the new rules are the only ones that would apply to us and those rules see us as 2nd generation.

His contention is that we were unjustly denied the opportunity to be registered as Canadians when we were born in the 60's due to our fathers not being Canadian at the time. He says that given their loss of Citizenship has been shown to be "wrong" by them both having had it reinstated in 2009, that we were effectively left stranded. We couldn't be registered then no matter how much anyone wanted to, and although our fathers are both now recognized as having been citizens all along, then can't register us now retrospectively. He seems to think this gives him the right to some sort of procedural claim to Canadian citizenship.

I have been trying to tell him that he is wrong, that we have no claim at all... no matter how "unjust" he sees it as.... as the rules are pretty black and white about it.

Can you please tell me I am right just so I can keep him quiet?

 

[sns204]

Clear as mud, really. I can see it from your cousin's point of view. Unfortunately, the only way to truly test the hypothesis is to get a lawyer and take the Crown to court after they deny your application for proof of citizenship, which I would think you'd need to file for to get the ball rolling.

 

[Gr8Alan]

Yes... clear as mud indeed!!!

I'll pass your idea on to him... see if he is willing to pursue it.

 

[sns204]

If it were me, it'd be worth the $75 just to see if it was somehow accepted when you expect it not to be.

 

[Gr8Alan]

Would he have to get his Father to get his own proof of citizenship first? Or can that step be skipped?

 

[sns204]

I don't know enough about proof of citizenship to answer whether it can be skipped, but certainly it wouldn't hurt. Doing so may even shed some light on his own situation.

 

[hawk39]

His contention is that we were unjustly denied the opportunity to be registered as Canadians when we were born in the 60's due to our fathers not being Canadian at the time. He says that given their loss of Citizenship has been shown to be "wrong" by them both having had it reinstated in 2009, that we were effectively left stranded. We couldn't be registered then no matter how much anyone wanted to, and although our fathers are both now recognized as having been citizens all along, then can't register us now retrospectively. He seems to think this gives him the right to some sort of procedural claim to Canadian citizenship.

I have been trying to tell him that he is wrong, that we have no claim at all... no matter how "unjust" he sees it as.... as the rules are pretty black and white about it.

Can you please tell me I am right just so I can keep him quiet?

Unfortunately, another bit of bad news is that between February 15, 1977 and August 14, 2004, there was a period of delayed registration at any age, so his father could have had his own birth registered, thus allowing him (your cousin) to also have his birth registered and become Canadian citizens by descent. So he actually did have a chance to get registered... had he known about his Canadian ancestry and law at that time. So since technically he had 27 years to register but because he didn't know that he could have registered, taking the case to court seems futile because "not knowing the rules" is not an excuse or legal justification for failing to meet deadlines.

 

[hawk39]

Would he have to get his Father to get his own proof of citizenship first? Or can that step be skipped?

If he intends to pursue this, then yes, he would need his father's certificate of citizenship. A certified copy of proof of the parent's Canadian citizenship is one of the required documents he needs to include with the application.

 

[alphazip]

Unfortunately, another bit of bad news is that between February 15, 1977 and August 14, 2004, there was a period of delayed registration at any age, so his father could have had his own birth registered, thus allowing him (your cousin) to also have his birth registered and become Canadian citizens by descent. So he actually did have a chance to get registered... had he known about his Canadian ancestry and law at that time. So since technically he had 27 years to register but because he didn't know that he could have registered, taking the case to court seems futile because "not knowing the rules" is not an excuse or legal justification for failing to meet deadlines.

A delayed registration of birth abroad could only be made if the person's father was a Canadian citizen at the time of the applicant's birth. In this case, the OP states that his cousin's father was not, since he had lost Canadian citizenship by not retaining by a certain age (originally 22, but apparently changed at some point to 24).

I became a Canadian citizen by making such a delayed registration before 2004. My father was a Canadian citizen when I was born, but lost his Canadian citizenship several years later by becoming a U.S. citizen. My brother, who was born after my father ceased to be Canadian, could not have made a delayed registration of birth abroad. However, he became a Canadian citizen under the changes to the Citizenship Act that took effect in 2009.

 

[alphazip]

Would he have to get his Father to get his own proof of citizenship first? Or can that step be skipped?

If your cousin would go to the "Am I Canadian?" tool (https://na1se.voxco.com/SE/56/amicanadiansuisjecanadien/?lang=en&tui=auto) and enter his information, he will see that he is (probably) not a Canadian citizen. This is due to the facts that you brought to light in your original post. Therefore, there is little chance that your cousin would succeed in his application for a citizenship certificate. Of course, if he wants to spend the $75 to get an official declaration of his status, that's fine.

As to the legal argument about the original Citizenship Act being "unjust", of course it was, especially as regards women. That's not to say that the specific elements that affect your cousin's case (requirement to retain as an adult) would be seen as especially egregious. In any case, IRCC is not going to change the law just for your cousin. He would need to take the matter to court. This has been done in the past, and took many years and many thousands of dollars. Look at some of the cases here:

https://en.wikipedia.org/wiki/Canadian_nationality_law#Judicial_review_of_provisions_of_current_and_previous_citizenship_acts

In answer to the specific question about whether it is necessary for your cousin to get his father's proof of citizenship before applying for his own, I would say no, because it's going to be obvious to IRCC from the information on the application and the birth certificates he will need to provide, that his father is (now) a Canadian citizen. However, if the application is rejected (as I think it will be), he might think it's because he didn't include his father's proof of citizenship, so he may as well do so.