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Major Changes to Canadian Citizenship by Descent Forthcoming

In December, the Ontario Superior Court of Justice published a decision finding Canada’s “first generation” limit on citizenship unconstitutional.

At present, if you obtain Canadian citizenship by birth or through naturalization, you can pass on Canadian citizenship to your children who are born outside of Canada. Your children, however, cannot pass on citizenship to their children.

At the center of the case were a number of applicants who had obtained Canadian citizenship by descent, from their parents. These applicants were not born in Canada but did consider Canada as home. These applicants had, for various reasons, left Canada and given birth to children abroad, but could not pass on their Canadian citizenship to their children. Many of the applicants wished to return to Canada, but faced difficulties as their children did not have status in the country.

In a lengthy decision, the Court found that this law creates discrimination based on national origin and sex, and it also violates the Charter right to enter, remain in, and leave Canada.

The Court declared the current citizenship law invalid, but gave the Government six months to address the invalidity before the law is struck. We therefore expect to see a significant change to the law within this time period.

Importantly, the Government has already been considering a change to the legislation that would allow citizenship to be passed beyond the first generation, but only if the parent meets the “substantial connection test”. This means that the Canadian citizen parent would need to show some form of proof of connection or residency in Canada in order to pass on their citizenship. One method being debated is that the Canadian parent would need to show at least 1,095 days of residency in Canada prior to the birth of their child, in order for the child to be eligible for Canadian citizenship.