T-5210-80
In re the Citizenship Act and in re Douglas Law-
rence Chute (Appellant)
Trial Division, Walsh J.—Toronto, March 17;
Ottawa, April 1, 1981.
Citizenship — Appeal from Citizenship Judge's denial of
appellant's application for citizenship on behalf of his minor
son — Child was born out of wedlock in the United States in
1975 — Mother is an American citizen; father is a Canadian
citizen — Birth was not registered abroad — Child has
visitor's status — Whether or not citizenship should be grant
ed to a minor child born outside Canada before the coming
into force of the new Citizenship Act — Whether or not
exercise of Ministerial discretion should be recommended —
Appeal adjourned sine die — Citizenship Act, S.C. 1974-75-
76, c. 108, as amended, ss. 3(1 )(b), 5(1)(6),(2),(4).
APPEAL.
COUNSEL:
D. Chute on his own behalf.
J. S. Lyons, Q. C., amicus curiae.
SOLICITORS:
D. Chute, Toronto, on his own behalf.
Jeffery S. Lyons, Q.C., Toronto, amicus
curiae.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is an appeal dated October 28,
1980, by the father of a minor child Jesse Robert
Chute, born out of wedlock in the United States on
April 21, 1975, on behalf of the said child, based
on the application of section 5(1)(b) of the Citi
zenship Act, S.C. 1974-75-76, c. 108, as amended,
which in its opening phrase requires that a person
"has been lawfully admitted to Canada for perma
nent residence". Before rendering the decision
careful examination was made not only of the
provisions of the Citizenship Act but of the Immi
gration Act, 1976, S.C. 1976-77, c. 52.
The situation is extremely complicated. The
father of the child is a Canadian citizen, having
been born in Canada and the mother Margaret
Elizabeth Bliss is an American citizen. Both admit
paternity on the child's birth certificate. Under the
former Canadian Citizenship Act, R.S.C. 1970, c.
C-19, section 5(1)(b) required in the case of a
child born out of wedlock that the mother be a
Canadian citizen or that the birth be registered in
accordance with the regulations within two years
after its occurrence or within such extended period
as the Minister might authorize in special cases.
This was repealed by the current Citizenship Act,
S.C. 1974-75-76, c. 108. Applicant attempted to
register the birth abroad at the time but was
prevented from doing so as this would not have
complied with section 5(1)(b) in effect at the time.
At present this child's status is that of an Ameri-
can citizen with permission to reside in Canada
until April 4, 1981, and the child's mother has the
same status. The father and mother have con
tinued to live together and still do so but the
mother for personal reasons refuses to take either
of the steps which could result in an application
for citizenship on behalf of the child being grant
ed. She has previously been married and divorced
and as a Roman Catholic her religion prevents her
from remarrying and she therefore refuses to
marry applicant though they continue to live to
gether as man and wife, two other children having
been born of the union, both of whom are Canadi-
an citizens. She also refuses to consent to adoption
of the child by applicant, which had been suggest
ed as a way out of the impasse, since she had had a
child born of a former marriage and when the
marriage was dissolved she lost custody of the
child to the father, so she is unwilling to give
applicant any legal status with respect to the child
other than what he now has resulting from his
admitted paternity, fearing that in the event that
their relationship should eventually break up she
might then lose custody of the child Jesse also.
This appears to be a very weak argument in law,
since in custody situations courts always are
primarily guided by the welfare of the child so it is
unlikely that change in the status of the father by
adopting the child would give him any added
rights of custody in the event that other circum
stances indicated that the mother was the appro
priate person to have such custody. While one can
perhaps understand and have some sympathy with
the mother's motive, the application of the law
cannot be adjusted so as to accommodate personal
considerations.
In a letter dated August 1, 1980, to the appli
cant, who is a professor at the University of
Toronto, S. G. Ramsay of the Canada Immigra
tion Centre, Toronto, pointed out that he is not
eligible to sponsor the child's admission to Canada,
who therefore can only be admitted to Canada as a
visitor for a temporary period, and that in order to
attend school he must be in possession of a student
authorization issued outside Canada and he cannot
remain in Canada indefinitely.
The child's mother has not acquired landed
immigrant status and the Citizenship Judge found
that the application of section 5(4) could not be
used so as to circumvent other sections of the Act.
Jesse is now attending kindergarten in Canada.
His father has to pay a fee of $1,194, and a letter
from the Board of Education for the Borough of
Scarborough states that according to the Educa
tion Act, R.S.O. 1980, c. 129, a person resident
with his parents or guardian can be admitted to
school without fees but that the interpretation is
that someone on a visitor's visa cannot be con
sidered to be residing in the country especially
since on a visitor's visa it is usually specifically
stated that the person must not attend school. The
payment of fees imposes considerable hardship on
applicant since he does not have tenure and
according to his evidence in the appeal only earned
some $11,000 as a professor on which he has to
support the three children, his common law wife
and himself. He is a psychologist and in his profes
sional capacity states that the child will suffer
emotional damage if he is kept in a category
separate from the other two children who are
Canadian citizens, and do not have to pay school
fees or be subject to the possibility of deportation
at any time if the temporary residence permit is
not renewed. One child although born abroad in
New Zealand on May 10, 1978, had his birth
registered abroad as a Canadian by his natural
father, the applicant herein, under the provisions
of section 3(1)(b) of the Act which reads as
follows:
3. (1) Subject to this Act, a person is a citizen if
(b) he was born outside Canada after the coming into force
of this Act and at the time of his birth one of his parents,
other than a parent who adopted him, was a citizen; [under-
lining mine]
Since the section states "after the coming into
force of this Act" it does not have retroactive
effect and an attempt to register the birth of Jesse
under the old Act at the Canadian Consulate in
Dallas was rejected as at that time only the mother
of the child born out of wedlock could make the
application and she was not and is not a Canadian
citizen herself.
The original application was made under section
5(2) of the Act which reads as follows:
5....
(2) The Minister shall grant citizenship
(a) to any person who, not being a citizen, has been lawfully
admitted to Canada for permanent residence, has not ceased
since such admission to be a permanent resident pursuant to
section 24 of the Immigration Act, 1976 and is the minor
child of a citizen if an application for citizenship is made to
the Minister by a person authorized by regulation to make
the application on behalf of the minor child; ...
Here again the problem seems to be that Jesse has
not been lawfully admitted to Canada for perma
nent residence.
The problem in the present case seems to arise
more out of the provisions of the Immigration Act,
1976 than of the Citizenship Act, although this is
a citizenship appeal. No criticism can be made of
the manner in which the immigration authorities
have handled the matter nor is the Citizenship
Judge wrong in concluding that on the strict
application of the Citizenship Act he could not
make a recommendation to the Minister for
alleviation of special and unusual hardship pursu
ant to section 5(4) of the Act, as what is sought is
to avoid the provisions of the Immigration Act,
1976 and grant citizenship to Jesse who is not even
a landed immigrant.
The simple solution would be for Jesse's mother
herself to seek landed immigrant status for herself
and the child. Whether this can be done without
her marrying appellant is doubtful as she herself is
not employed in Canada or in the category of
persons who would normally be admitted to
occupy a job for which no Canadian has the
necessary qualifications.
The case is one which obviously is of the most
sympathetic nature as it certainly is not the inten
tion of the Citizenship Act nor of the Immigration
Act, 1976 to break up families in which some
minor children are citizens, and the present child
cannot be, under the strict interpretation of the
law as the result of the fact that he was born
abroad before the coming into force of the new
Citizenship Act assented to on July 16, 1976, and
the wording of section 3(1)(b) only makes it appli
cable to children born after the coming into force
of it.
It would appear that equity requires that Minis
terial discretion or perhaps even consideration by
Order in Council may be necessary to remedy the
situation.
It was suggested that further representations
might be made to the Minister of Employment and
Immigration to see what, if anything, can be done
and that meanwhile no final decision should be
rendered with respect to the present appeal.
I do not believe that a recommendation at this
stage that the Minister should exercise his discre
tion under section 5(4) of the Act is appropriate,
since not only is there difference of opinion as to
whether such recommendation can be made by a
Judge of the Federal Court sitting in appeal from
the decision of a Citizenship Judge refusing to
make such recommendation, but experience in the
past has shown that such recommendations are
seldom if ever acted upon, placing Judges of this
Court in the invidious position of having recom
mendations, made after the hearing of an appeal,
rejected at the executive level of government which
creates an undesirable situation.
I therefore adjourn the appeal sine die to be
brought on again after further representations
have been made by counsel for appellant to the
appropriate Minister. I may say that the amicus
curiae who was most helpful concurs in this
recommendation.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.