Another Citizen by Descent Thread

[Xle1156]

I recently learned that my US-born mother received Canadian citizenship in 2003 through delayed registration. She was born in wedlock to my Canadian born grandmother in 1968 and was originally not entitled to Canadian citizenship because of the draconian law against women that was in place at the time.

I have read enough about the Citizenship Act to understand that my mother was a citizen by way of grant and her ability to pass it down to the next generation was limited to children born after the grant. I was born in 1993 in the US and thus not able for citizenship by descent. But there's one thing that confuses me- the 2009 act redefined her citizenship as being by descent, retroactive to her date of birth. I've tried googling this and I can't find out what that means, does it give her the ability to pass down citizenship to children born before 2009 or is it just a symbolic gesture of equality?

 

[CitizenSoon]

If she got her citizenship by birth, then you can get the Canadian citizenship. Did you send a message to CIC?

 

[alphazip]

I recently learned that my US-born mother received Canadian citizenship in 2003 through delayed registration. She was born in wedlock to my Canadian born grandmother in 1968 and was originally not entitled to Canadian citizenship because of the draconian law against women that was in place at the time.

I have read enough about the Citizenship Act to understand that my mother was a citizen by way of grant and her ability to pass it down to the next generation was limited to children born after the grant. I was born in 1993 in the US and thus not able for citizenship by descent. But there's one thing that confuses me- the 2009 act redefined her citizenship as being by descent, retroactive to her date of birth. I've tried googling this and I can't find out what that means, does it give her the ability to pass down citizenship to children born before 2009 or is it just a symbolic gesture of equality?

I also received Canadian citizenship by delayed registration, but not by grant, because I was born to a Canadian-citizen father. Thus, I am a citizen from birth, and the 2009 changes had no effect on that. In your mother's case, however, she was a citizen by grant, and is now a citizen by descent, retroactive to her birth. But, at the same time as she became a citizen by descent, a restriction was placed on passing down that citizenship to anyone beyond the first generation born abroad. As you are the second generation, and you were not a Canadian citizen before April 17, 2009, the 2009 changes do not give you citizenship.

The original Citizenship Act and the temporary (1977-2004) fix were both discriminatory on the basis of sex, and I think there is a good basis for a legal challenge to that part of the law. Your mother and I are both children of Canadians, but because my Canadian parent was a man, I could pass citizenship on to any child I had before 2009. Yet, because your mother's parent was a woman, she had a much smaller window (2003-2009) in which to do so. Of course, unless you want to spend many thousands of dollars fighting the government, you're probably out of luck.

Still, to be absolutely sure, you may want to apply for proof of citizenship and see what IRCC has to say.

 

[hawk39]

I recently learned that my US-born mother received Canadian citizenship in 2003 through delayed registration. She was born in wedlock to my Canadian born grandmother in 1968 and was originally not entitled to Canadian citizenship because of the draconian law against women that was in place at the time.

I have read enough about the Citizenship Act to understand that my mother was a citizen by way of grant and her ability to pass it down to the next generation was limited to children born after the grant. I was born in 1993 in the US and thus not able for citizenship by descent. But there's one thing that confuses me- the 2009 act redefined her citizenship as being by descent, retroactive to her date of birth. I've tried googling this and I can't find out what that means, does it give her the ability to pass down citizenship to children born before 2009 or is it just a symbolic gesture of equality?

Since all of the other laws that pertain to gaining citizenship by descent are also retroactive to date of birth, I think it was meant as a "symbolic gesture of equality", since the 1977 law seems to be the only one that was not retroactive. The only way to find out (based on your other post after taking the "Am I a Canadian" tool) would be to actually apply for the certificate.

However, I don't believe you are eligible now because of the first generation limit in the current Citizenship Act. You would be defined under 3(1)(b), and your mother would now be defined under 3(1)(h) [previously under 5(2)(b) of the 1977 Act], not by delayed registration [as that would only apply to those that were eligible under the 1946 Act]. The first generation limit is laid out in 3(3), and in regards to your situation, is read as:

"Paragraphs (1)(b), (f) to (j), (q) and (r) do not apply to a person born outside Canada

• (a) if, at the time of his or her birth, only one of the person’s parents was a citizen and that parent was a citizen under paragraph (1)(b), (c.1), (e), (g), (h), (o), (p), (q) or (r) or both of the person’s parents were citizens under any of those paragraphs".

So this basically says that a person described under 3(1)(b) [i.e. you, by descent born after 1977 Act] is not a citizen at birth if their parent is citizen described under 3(1)(h) [i.e. your mother, by descent per 5(2)(b) of the 1977 Act].

 

[Xle1156]

Since all of the other laws that pertain to gaining citizenship by descent are also retroactive to date of birth, I think it was meant as a "symbolic gesture of equality", since the 1977 law seems to be the only one that was not retroactive. The only way to find out (based on your other post after taking the "Am I a Canadian" tool) would be to actually apply for the certificate.

However, I don't believe you are eligible now because of the first generation limit in the current Citizenship Act. You would be defined under 3(1)(b), and your mother would now be defined under 3(1)(h) [previously under 5(2)(b) of the 1977 Act], not by delayed registration [as that would only apply to those that were eligible under the 1946 Act]. The first generation limit is laid out in 3(3), and in regards to your situation, is read as:

"Paragraphs (1)(b), (f) to (j), (q) and (r) do not apply to a person born outside Canada

• (a) if, at the time of his or her birth, only one of the person’s parents was a citizen and that parent was a citizen under paragraph (1)(b), (c.1), (e), (g), (h), (o), (p), (q) or (r) or both of the person’s parents were citizens under any of those paragraphs".

So this basically says that a person described under 3(1)(b) [i.e. you, by descent born after 1977 Act] is not a citizen at birth if their parent is citizen described under 3(1)(h) [i.e. your mother, by descent per 5(2)(b) of the 1977 Act].

That's what I was thinking. I was confused because the part of the act that states she is no longer a citizen by way of grant doesn't specifically state that she would now be a citizen by descent, it only says that she is not a citizen by grant. It seems like that is more of a logical consequence from the line that states that citizenship will not be taken away from anyone.

I also received Canadian citizenship by delayed registration, but not by grant, because I was born to a Canadian-citizen father. Thus, I am a citizen from birth, and the 2009 changes had no effect on that. In your mother's case, however, she was a citizen by grant, and is now a citizen by descent, retroactive to her birth. But, at the same time as she became a citizen by descent, a restriction was placed on passing down that citizenship to anyone beyond the first generation born abroad. As you are the second generation, and you were not a Canadian citizen before April 17, 2009, the 2009 changes do not give you citizenship.

The original Citizenship Act and the temporary (1977-2004) fix were both discriminatory on the basis of sex, and I think there is a good basis for a legal challenge to that part of the law. Your mother and I are both children of Canadians, but because my Canadian parent was a man, I could pass citizenship on to any child I had before 2009. Yet, because your mother's parent was a woman, she had a much smaller window (2003-2009) in which to do so. Of course, unless you want to spend many thousands of dollars fighting the government, you're probably out of luck.

Still, to be absolutely sure, you may want to apply for proof of citizenship and see what IRCC has to say.

Yes, I agree that this is definitely still discriminatory towards women and changes to this law is something that I've been keeping an eye on for the last few months. It will be interesting to see with the upcoming election if any changes will be made to the citizenship act. I hope that this as well as the issue for people born between 1977 and 1981 will be resolved.

I have an application for proof of citizenship pending. I'm confident it will be denied but I am going through the process to rule out citizenship before immigrating.

 

[scylla]

Yes, I agree that this is definitely still discriminatory towards women and changes to this law is something that I've been keeping an eye on for the last few months. It will be interesting to see with the upcoming election if any changes will be made to the citizenship act. I hope that this as well as the issue for people born between 1977 and 1981 will be resolved.

Upcoming election won't change anything. If anyone was going to make a favourable change to this rule, it would have been the Liberals who are in power now. I wouldn't count on the Conservatives to do anything.

 

[Xle1156]

Upcoming election won't change anything. If anyone was going to make a favourable change to this rule, it would have been the Liberals who are in power now. I wouldn't count on the Conservatives to do anything.

A man can dream...

 

[scylla]

A man can dream...

Haha - absolutely.

 

[alphazip]

That's what I was thinking. I was confused because the part of the act that states she is no longer a citizen by way of grant doesn't specifically state that she would now be a citizen by descent, it only says that she is not a citizen by grant. It seems like that is more of a logical consequence from the line that states that citizenship will not be taken away from anyone.

Yes, I agree that this is definitely still discriminatory towards women and changes to this law is something that I've been keeping an eye on for the last few months. It will be interesting to see with the upcoming election if any changes will be made to the citizenship act. I hope that this as well as the issue for people born between 1977 and 1981 will be resolved.

I have an application for proof of citizenship pending. I'm confident it will be denied but I am going through the process to rule out citizenship before immigrating.

I quote from https://www.vancouverobserver.com/world/lost-canadians/2011/11/05/lost-canadians-political-timeline (written in 2011 and not reflective of the 2015 legislation):

"1997: In the Supreme Court case "Benner vs. Canada" [https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1545/index.do], the justices rule unanimously that the Citizenship Act is unconstitutional in that it blatantly discriminates against women. Under the 1947 Act, Canadian women who married non-Canadian men and had a child outside of Canada did not have the right to pass citizenship onto their children. But men who married non-Canadian women and fathered a child outside of Canada did have that right. In the Benner ruling, Canadian women who had children outside of Canada were given the same right to pass citizenship onto their children.

2009: Bill C-37 is implemented on April 17, 2009, 27 years to the day after the Charter became law. For the first time in Canadian history, women are equal in law -- but only going forward. Bill C-37 is not made completely retroactive. While C-37 recognizes somewhere between 750,000 and to one million more people as citizens, it leaves out the second-generation, born-out-of-Canada descendants of Canadian women – although second-generation, born-out-of-Canada descendants of men still have a right to citizenship. The Supreme Court decision regarding equality of rights for women continues to be ignored. And children born pre-1947 inside or out of Canada to Canadian mothers and non-British subject fathers are still denied citizenship."

The Benner decision was limited to a specific case, but the points made therein suggest that the Supreme Court could very well rule that the different treatment accorded to your mother (had to apply for a non-retroactive grant) and to me (just had to register, which had retroactive effect) violate the Charter.

I read somewhere that several challenges to the Citizenship Act have been filed, but I don't know whether they are still ongoing, or have been dismissed or settled. You may want to write to Don Chapman, leader of the Lost Canadian group (blog.lostcanadian.com), though I don't know whether that group is still active.

 

[hawk39]

That's what I was thinking. I was confused because the part of the act that states she is no longer a citizen by way of grant doesn't specifically state that she would now be a citizen by descent, it only says that she is not a citizen by grant.

The most confusing part of reading through law statutes is the complexity to which everything is worded in all of the sections; often you have to refer to another section where it was already defined or you have to follow every word and subsection by reading the whole statute in its entirety. In your mother's situation, it is true that 3(1)(h) does not specifically say that your mother is now a citizen by descent and not by grant; however if you go further down to 3(6), it says:

"(6) A person referred to in paragraph (1)(h), (i) or (j) is deemed, except for the purposes of that paragraph, never to have been a citizen by way of grant."

The paths of Canadian citizenship are by birth (born on Canadian soil), descent (born from a Canadian parent) or grant (naturalization). So if your mother is no longer a citizen by grant as prescribed by 3(6), nor was she born on Canadian soil, then because she had a Canadian parent, she can only be described as a citizen by descent now.

It seems like that is more of a logical consequence from the line that states that citizenship will not be taken away from anyone.

If you are referring to 3(4), I believe that was written as a point of clarity in reference to citizens of descent of the second generation and up that had already gotten their citizenship, or those that were deemed to already be a citizen when they were born between 1981 and 2009 (because they were not required to apply for retention) but did not formally apply for proof yet, that the first generation limit would not revoke their citizenship.