Overview

Prior to January 1, 1947, there was no citizenship statute in existence. Canada was in the curious position of being a nation without citizens. This was corrected on January 1, 1947 with the Canadian Citizenship Act, S.C. 1946, c.15 (the "Former Act"). The Former Act recognized Canadian citizenship for the first time.

The current Citizenship Act, R.S.C. 1985, c. C-29 (the "Current Act") replaced the Former Act on February 15, 1977. It contains various provisions designed to preserve the citizenship rights of citizens under the Former Act. It also recognizes limited citizenship rights for persons born in Canada before the Former Act came into effect. Both statutes are discussed below.

Persons Born Outside of Canada to a Canadian Father or Single Mother Prior to January 1, 1947

As stated above, prior to January 1, 1947 there was no citizenship statute in effect. The Former Act provided only limited citizenship rights to persons born prior to its coming into force.

As in the case of citizenship through birth in Canada, the right of citizenship through parentage was limited to the children of a father or, in the case of a person born out of wedlock, a mother who was not an alien. Section 2 of the Former Act defined "alien" as a person who was not a Canadian citizen, Commonwealth Citizen, British subject or citizen of the Republic of Ireland.

Specifically, section 4(1)(b) of the Former Act provided that a person born outside Canada (other than on a Canadian ship) who, on the January 1, 1947, was not an alien and was either a minor on that date or had, before that date, been lawfully admitted to Canada for permanent residence and his father or (in the case of a person born out of wedlock) his mother:

1. Was born in Canada or on a Canadian ship and was not an alien at the time of that person's birth;

2. Was, at the time of that person's birth, a British subject who had Canadian domicile;

3. Was, at the time of that person's birth, a person who had been granted, or whose name was included in, a certificate of naturalization; or

4. Was a British subject who had his/her place of domicile in Canada for at least twenty years immediately before the 1st day of January 1947, and was not, on that date, under an order of deportation

was considered a Canadian citizen.

According to Section 11(2) of the Current Act, a woman who

1. Ceased to be a British subject by virtue of any law of Canada in force before January 1, 1947, by reason of her marriage or acquisition by her husband of foreign nationality; and

2. Would have been a Canadian citizen had the Former Act come into force immediately before her marriage or acquisition by her husband of a foreign nationality

may automatically reacquire citizenship immediately upon filing a notice to the Minister that she elects to be a Canadian citizen.

Section 4(2) of the Former Act required persons who were minors on January 1, 1947 and who gained Canadian citizenship under Section 4(1)(b) of the Former Act to register within a certain period. It stated that such a person would cease to be a Canadian citizen three years after the date on which he or she attained the age of twenty-one, or on January 1, 1954, whichever was later unless he:

1. Had his place of domicile in Canada at such date; or

2. Had, before such date and after attaining the age of twenty-one, filed a declaration of retention of Canadian citizenship.

Persons Born After December 31, 1946 but Before February 15, 1977

Overview

Section 5(1)(b) of the Former Act provided that a person born outside Canada other than on a Canadian ship could be considered a Canadian citizen if:

1. His father, or in the case of a child born out of wedlock, his mother, was a Canadian citizen at the time of the person's birth; and

2. The birth was registered, in accordance with the regulations, within two years after its occurrence or within such extended period as the Minister may, under the regulations, authorize in special cases.

Section 3(1)(e) of the Current Act continues to recognize this right. It states that a person who was entitled, immediately before February 15, 1977, to become a Canadian citizen under paragraph 5(1)(b) of the Former Act is a Canadian citizen.

Children of Canadian Mothers Born in Wedlock Not Initially Entitled to Citizenship

Section 5(1)(b) of the Former Act discriminated against children of Canadian mothers born outside Canada, unless the child was born out of wedlock. Consequently, children born in wedlock, outside of Canada, to an alien father and Canadian citizen mother, were not entitled to Canadian citizenship by parentage. However, according to Section 5(2)(b) of the Current Act, a person who:

1. Was born outside Canada before February 15, 1977;
2. Whose mother was a Canadian citizen at the time of his or her birth; and
3. Was not entitled, immediately before February 15, 1977, to become a citizen under subparagraph 5(1)(b)(i) of the Former Act

shall be granted citizenship if, before February 15, 1979, or within such extended period as the Minister may authorize, an application for citizenship is made to the Minister by a person authorized by regulation to make the application. Section 5(2)(b) of the Current Act therefore permitted children born before February 15, 1977, in wedlock to a Canadian mother and a non-Canadian father, to seek Canadian citizenship. However, the extended period during which such an applicant could seek Canadian citizenship expired on August 14, 2004.

Requirement to Register Citizenship

Section 4(3) of the Current Act states that a person who was entitled to Canadian citizenship in accordance with Section 5(1)(b) of the Former Act remains so entitled, notwithstanding that his birth is registered, after February 14, 1977, in accordance with regulations made under the Former Act:

1. Within two years after the occurrence of his birth; or
2. Within such extended period as the Minister may authorize after February 15, 1977 or has authorized before that date.

The extended period remained in effect until August 14, 2004. As the extended period has now expired, a person who would have had a claim claim under Section 5(1)(b) of the Former Act is no longer permitted to seek Canadian citizenship.

Retention Requirements for Applicants Born Between January 1, 1947 and February 14, 1977

According to Section 5(2) of the Former Act, a person born abroad between January 1, 1947 and February 14, 1977, who acquired Canadian citizenship pursuant to Section 5(1)(b) of the Former Act by registering his or her birth abroad, would cease to be a Canadian citizen the day after his or her 24th birthday unless he or she:

1. Had a place of domicile in Canada on that date; or
2. Filed a Declaration of Retention between the 21st and 24th birthday.

However, loss of citizenship could not occur if:

1. The birth had not been registered; or
2. The person had not reached his or her 24th birthday on February 15, 1977 (the date that the Current Act became effective).

Persons Born to a Canadian Parent Outside Canada After February 14, 1977

Overview

Section 3(1)(b) of the Current Act provides that a person born outside Canada after February 14, 1977 is a Canadian citizen if, at the time of birth, one of the parents (other than an adopting parent) was also a Canadian citizen. According to Section 4(2) of the Current Act, for the purposes of Section 3(1)(b), where a child is born after the death of a parent, he or she is deemed to have been born before the death of that parent.

Retention Requirements for Second Generation Applicants born after February 14, 1977

A retention requirement currently exists for second generation children whose Canadian parent was also born abroad. According to Section 8 of the Current Act, if a person is born outside Canada after February 14, 1977 and is a Canadian citizen by reason that, at the time of his/her birth, one of his/her parents was also a Canadian citizen by virtue of Section 3(1)(b) or 3(1)(e), the person will cease to be a Canadian citizen upon attaining twenty-eight years of age, unless that person:

1. Makes an application to retain citizenship; and

2. Registers as a Canadian citizen and either resides in Canada for a period of at least one year immediately preceding the date of the application or establishes a substantial connection with Canada.

"Substantial connection" is defined in the regulations as follows:

1. The person has been employed, for at least two of the four years immediately preceding the date of his application, in the public service of Canada or of a province or as a member of the Canadian forces or the Royal Canadian Mounted Police or as a Canadian representative of the United Nations or one of its affiliated agencies; or

2. The person has an adequate knowledge of one of the official languages of Canada, of Canada and the responsibilities and privileges of citizenship, determined in accordance with the criteria set out in the regulations and, since attaining the age of fourteen years of age, has spent more than one year in Canada with a parent, brother, sister, aunt, uncle, or grandparent or in attendance at a recognized secondary or post-secondary educational institution.

Resumption of Lost Citizenship

Where a person subject to Section 8 of the Current Act ceases to be a Canadian citizen for failure to comply with the retention requirements, it is still possible to apply for resumption of Canadian citizenship. According to Section 11(1) of the Current Act, the Minister shall grant citizenship to any person who, having ceased to be a citizen:

1. makes an application for resumption of citizenship;

2. Is not the subject of an order of or a declaration by the Governor in Council made pursuant to Section 10 (fraud) or Section 20 (matters of security) of the Current Act or Section 18 of the Former Act;

3. Is not under a deportation order; and

4. Has been lawfully admitted to Canada for permanent residence after having ceased to be a citizen, has not ceased since that admission to be a permanent resident, and has resided in Canada since that admission for at least one year preceding the date of his application.