Canadian citizenship law is keeping up with the times after Quebec Superior Court pronounced that the non-biological, legal children of Canadian citizens can have the same citizenship rights as biological children.
The change affected children who were born through assisted human reproduction, such as surrogacy arrangements entered into by Canadian citizens.
It means that same-sex couples and couples who have fertility problems who used surrogacy can extend citizenship rights to their children as long as one legal parent is Canadian.
However, this does not apply to adopted children, who pass through a different process to get Canadian citizenship.
Prior to the ruling last week, children of parents who used assisted human reproduction fell through a loophole in Canadian citizenship law that only allow automatic citizenship to children who were born overseas and biologically connected to one or both of their Canadian parents.
This left out parents like Laurence Caron and Elsje van der Ven, who won a long-fought court battle to grant citizenship to their son, Benjamin. He was not granted citizenship because his Canadian parent, Caron, was not his biological mother, despite the fact that she is legally his parent and married to his biological mother, van der Ven.
Ironically, Caron’s biological daughter, Anna, who was born in the Netherlands but she was automatically granted Canadian citizenship under the antiquated definition.
The Citizenship Act’s new definition of “parent” now applies to both biological children of Canadian citizens, and children who were born overseas and have a legal parent-child relationship at birth but no biological connection.
Who is eligible for Canadian citizenship by descent?
Canada’s new definition of “parent” includes those who have been recognized by law as their child’s parent at birth. These Canadian parents can now pass down citizenship with or without a genetic connection to their children who were born outside Canada. Canada will recognize them as legal parents if their name appears on:
- the child’s original birth certificate; or
- other relevant birth records (court orders, hospital records, surrogacy contracts, among others).
Parent who is not recognized as the legal parent at birth, but who have a biological link with their child may need to carry out a DNA test to support their claim to parenthood.
Children who are born through assisted human reproduction who do not have a legal parent at birth, or a biological link with at least one of their Canadian parents are not qualified for citizenship by descent.
Minors, people under age eighteen (18) in Canada, may also order an application for proof of citizenship on their own behalf.
However, if the minor is under age fourteen (14) a parent should endorse the application. On the other hand, the officer processing the application may advise the child’s parent that the application is being made.
Who automatically gets Canadian citizenship?
It is quite ambiguous who automatically gets Canadian citizenship and who has to apply. Canada’s immigration department or IRCC even offers an “Am I Canadian” tool to help answer this question.
IRCC announced that people are likely Canadian citizens if they:
- were born in Canada (but not to foreign diplomats);
- became a Canadian citizen because of changes to the Citizenship Act;
- apply for and received Canadian citizenship;
- received citizenship as a minor when a parent or guardian applied on their behalf; or
- were born abroad and at least one of their biological or legal parents were Canadian citizens.
The addition of “legal” parents of foreign-born children gave credence to the changing nature of the modern family. The children of LGBTQ2+ couples as well as couples with fertility problems are now on the same page as the biological children of Canadians.