Canada updates the definition of “parent” for the 21st century

Canadian citizenship law is catching up after Quebec’s Superior Court ruled that non-biological legal children of Canadians can have the same citizenship rights as biological children.

The change applies to children who are born through assisted human reproduction, such as surrogacy agreements put in place by Canadian citizens. This means that same-sex couples and couples with fertility problems who have used surrogacy can pass their citizenship rights on to their children as long as a legal parent is Canadian. It does not apply to adopted children, who go through a different process to obtain Canadian citizenship.

Before the Quebec Superior Court ruling last week, children of parents who used assisted reproduction fell into a loophole in the Canadian citizenship law that automatically granted citizenship only to children born abroad and biologically related to one or both of their Canadian parents.

This has left out parents like Elsje van der Ven and Laurence Caron, who won a long legal battle last week to grant citizenship to their son, Benjamin. He was denied citizenship because his Canadian parent, Caron, was not his birth mother, even though she is legally his parent and married to his birth mother, van der Ven. Ironically, Caron’s biological daughter, Anna, was also born in the Netherlands, but she was automatically granted citizenship according to the outdated definition.

The new definition of “parent” in the Citizenship Act now includes both the biological children of Canadians and children born abroad and having a legal parent-child relationship at birth, but without biological ties.

Who is eligible for Canadian citizenship by descent?

The new definition of “parent” in Canada includes those who have been recognized as the legal parent of their child at birth. These Canadian parents can pass on citizenship with or without a genetic link to their foreign-born children. Canada will recognize them as “legal” parents if their name appears on:

• Child’s original birth certificate; OR
• Other relevant birth records (surrogacy contracts, court orders, hospital records, among others).

Parents who are not recognized as legal parents at birth, but who are biologically related to their child may need to have a DNA test done to substantiate their claim of parenthood.

Children born through assisted reproduction who do not have a legal parent at birth or who are biologically related to at least one of their Canadian parents are not eligible for citizenship by descent.

Minors, people under the age of 18 in Canada, can also apply for proof of citizenship on their own behalf. However, if the minor is under 14, a parent must countersign the application. Otherwise, the officer responsible for processing the request must inform the parent of the child that the request is pending.

Who automatically obtains Canadian citizenship?

It is not always clear who automatically obtains Canadian citizenship and who must apply for it. Immigration, Refugees, and Citizenship Canada (IRCC) even offer 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 children born abroad supports the changing nature of the modern family. The children of LGBTQ2 + couples as well as couples with fertility problems are now on the same level playing field as the biological children of Canadians.

Reference is taken from CIC News