A loophole in Canadian Citizenship law that prevented some parents from passing on citizenship to their children has been closed to support the needs of modern families.
Canadian citizenship law is catching up with the times after Quebec Superior Court ruled that the non-biological, legal children of Canadians can have the same citizenship rights as biological children.
The change applies to children who were born through assisted human reproduction, such as surrogacy arrangements undertaken by Canadian citizens. It means that same-sex couples and couples who have fertility issues who used surrogacy can pass on citizenship rights to their children as long as one legal parent is Canadian. It does not apply to adopted children, who go through a different process to get Canadian citizenship.
Before the Quebec Superior Court’s ruling last week, children of parents who used assisted reproduction fell through a loophole in Canadian citizenship law that only granted automatic citizenship to children who were born abroad and biologically connected to one or both of their Canadian parents.
This left out parents like Elsje van der Ven and Laurence Caron, who won a long-fought court battle last week to grant citizenship to their son, Benjamin. He was denied citizenship because his Canadian parent, Caron, was not his biological mother, even though she is legally his parent and married to his biological mother, van der Ven. Ironically, Caron’s biological daughter, Anna, was also born in the Netherlands but she was automatically granted citizenship under the antiquated definition.
The Citizenship Act’s new definition of “parent” now encompasses both biological children of Canadians, and children who were born abroad and have a legal parent-child relationship at birth but no biological link.
Who is eligible for citizenship by descent?
Canada’s new definition of “parent” includes those who have been recognized as their child’s legal parent at birth. These Canadian parents can pass down citizenship with or without a genetic link to their children who were born abroad. Canada will recognize them as “legal” parents if their name appears on:
- the child’s original birth certificate; or
- other relevant birth records (surrogacy contracts, court orders, hospital records, among others).
Parents who are not recognized as the legal parent at birth, but who have a biological connection with their child may need to do a DNA test to support their claim to parenthood.
Children who are born through assisted reproduction who do not have a legal parent at birth, or a biological connection with at least one of their Canadian parents are not eligible for citizenship by descent.
Minors, people under age 18 in Canada, may also file an application for proof of citizenship on their own behalf. However, if the minor is under age 14 a parent should countersign the application. Alternatively, the officer processing the application should advise the child’s parent that the application is being made.
Who automatically gets Canadian citizenship?
It is not always clear who automatically gets Canadian citizenship and who has to apply. Immigration, Refugees, and Citizenship Canada (IRCC) even offers an “Am I Canadian” tool to help answer this question.
IRCC says people are likely Canadian citizens if they:
- were born in Canada (but not to foreign diplomats);
- became a citizen because of changes to the Citizenship Act;
- applied for and received Canadian citizenship;
- received Canadian citizenship as a minor when a parent or guardian applied on their behalf; or
- were born outside Canada and at least one of their biological or legal parents were Canadian citizens.
The addition of “legal” parents of foreign-born children supports the changing nature of the modern family. The children of LGBTQ2+ couples as well as couples with fertility issues are now on the same playing field as the biological children of Canadians.