Valois-d'Orleans v. Canada (Minister of Citizenship and Immigration), 2005 FC 1009

Date: 20050720

Docket: T-2174-04

Citation: 2005 FC 1009

BETWEEN:

THIBAUT ALEXANDER VALOIS-D'ORLEANS

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

HUGHES J.

[1]    This is an application by way of judicial review of a decision made by the Registrar of Canadian citizenship dated October 22, 2004, wherein the certificate of Canadian citizenship issued to the Applicant was cancelled under the provisions of section 26(3) of the Regulation under the Citizenship Act, R.S.C. 1985, c. C-29.

[2]    The Applicant, Thibaut Alexander (Sasha) Valois-D'Orleans was born in St. Petersburg, Russia, on September 16, 1999. His mother, Indira nee Akhmetchena (Indira), was at that time, and remains, a Russian citizen. At the time of his birth, the Applicant's mother was married to Louis-Phillipe Valois-D'Orleans (Phillipe) who was and remains a Canadian citizen. The uncontested evidence is that Phillipe was not the biological father of the Applicant, Sasha. We do not know who the biological father of Sasha was, nor do we know the nationality of that person.

[3]    The issue before this Court is whether, under the provisions of section 3(1)(b) of the Citizenship Act, a person who was born outside Canada to a mother who was not a Canadian citizen, is entitled to Canadian citizenship where the nationality of the biological father is unknown and the mother was married, at the time, to a Canadian citizen, who was not the biological father but who believed at the time that he was the biological father and shortly after the birth of the child did not so believe and did not thereafter treat the child as his own.

[4]    The essential facts are largely undisputed. Phillipe is and at all material times was a naturalized Canadian citizen. Phillipe met Indira, who is and at all times was, a Russian citizen, while on a business trip to St. Petersburg, Russia. Phillipe returned to visit Indira on subsequent trips to Russia and married her in Russia on December 29, 1998. Indira admits to having sexual relations with an unidentified man a week before the wedding but did not believe that, at the time of the wedding, she was pregnant. Phillipe returned to Canada after the wedding and sponsored Indira to come to Canada, which she did on April 22, 1999. She was pregnant with Sasha at that time. Phillipe and Indira lived together in Canada, Phillipe was apparently looking forward to the birth of the child and took steps to look after Indira and the unborn child.

[5]    Apparently for economic reasons, Indira was persuaded to return to Russia to have the child delivered there, which he was on September 16, 1999. Indira remained hospitalized in Russia for about one month, during which time she admits to being told by an attending doctor that, due to the child's blood type, it was not possible that Phillipe was the biological father. This fact was confirmed in 2004 by DNA testing conducted during the course of the citizenship proceedings at issue here.

[6]    On October 28, 1999 Indira submitted an application for a Canadian Citizenship Certificate from Outside Canada for the child, Sasha, in which she checked off the box indicating that Phillipe was the "Natural Father". Such a certificate was issued to Sasha on January 26, 2000.

[7]    Indira returned to Canada, with Sasha on or about November 20, 1999 to live with Phillipe. The marriage deteriorated and Indira filed for divorce, alleging cruelty by Phillipe against her and the child Sasha. The Superior Court (Ontario) made an Order dated August 29, 2003 stating, inter alia:

"3. The Court hereby declares that said child (Sasha) is not a child of the marriage and the husband (Phillipe) did not demonstrate any settled intention to treat the child as his own family. Therefore, there shall be no child support."

[8]    During the course of the divorce proceedings, Phillipe contacted the Citizenship and Immigration Office ("Office") by letter dated March 31, 2003 requesting, inter alia that his sponsorship of Indira be withdrawn and informing them that Sasha was not his biological offspring. Apparently prompted by this letter, the Office determined that Sasha's certificate of Canadian citizenship ought to be returned. Several communications were sent to Indira and her lawyer, culminating in the decision set out in the Office letter of October 22, 2004, the substantive portion of which stated:

This letter concerns the citizenship certificate 7293113 issued to your son Thibaut Alexander De Valois-D'Orléans born in Russia on September 19, 1999. This certificate was issued to your son based on your claim that he is a Canadian citizen by birth outside Canada to a Canadian citizen parent. The application for citizenship indicated that your son's biological father was Louis-Phillipe De Valois D'Orléans born on December 21, 1947 in Portugal, and a Canadian citizen.

Since Louis-Phillipe De Valois D'Orléans is not your son's biological father, Thibaut is not a Canadian citizen by birth outside Canada to a Canadian citizen mother or father. The paternity test results dated June 25, 2004 confirm that Thibaut is not Louis-Phillipe De Valois D'Orléans son. The statements you made during your separation and divorce proceedings reiterate this finding. Therefore, your son is living in Canada without status.

In light of this, you may wish to contact our call centre at 1-888-242-2100 or visit our website at www.cic.gc.ca, for further information on applying for permanent residence in Canada.

The current legislation under subsection 26(3) allows the Registrar to cancel all certificates that were issued without entitlement. Please return your son's certificate of citizenship no. 7293113 immediately to our office in the enclosed self addressed envelope for cancellation.

[9]    Whereupon this application was made by Sasha to quash that decision.

ANALYSIS

[10]                        There appears to be no determination by a Court as to the meaning of the word "parent" in the context of the Citizenship Act, and, in particular, section 3(1)(b) of that Act. Section 2 defines "child" to include a child adopted or legitimized in accordance with the laws of the place where the adoption or legitimization took place.    Section 2 of the Citizenship Regulations, 1993 defines "parent" to mean the father or mother of a child, whether or not the child was born in wedlock, and includes an adoptive parent. Section 4 (1) (a) of the Regulations requires that an application on behalf of a minor child be made "¼by either parent, by a legal or defacto guardian or by any other person having custody of the minor child."

[11]                        Counsel for the Applicant submits that a "parent" ought to be defined sufficiently broadly so as to include a person having a relationship as a parent with the child, at least at the time of the birth of the child, whether or not there is a blood relationship. Counsel for the Respondent submits that the Office was correct in taking the position that a "parent," unless otherwise defined, for instance, to include an adoptive parent, means a biological or natural parent. I agree with the position taken by the Respondent.

[12]                        Citizenship has been defined as a relationship between a person and a country. That relationship can be established by birth within the country, by a relationship established by sanguinity or it can be a relationship acquired if the person meets the criteria established by the laws of that country. The decision of the Federal Court of Appeal in Canada (Attorney General) v. McKenna, [1999] 1 F.C. 401 is instructive in this regard. Robertson J.A., with whom Strayer J.A. concurred, stated at paragraph 85:

With respect to children born outside Canada after the new Act came into force, paragraph 3(1)(b) states that such children are entitled to automatic citizenship if he or she qualifies as birth children of a Canadian citizen. If they fail to so qualify, then paragraph 5(2)(a) of the new Act applies in the same manner as it does to children born abroad prior to that date. In summary, children born abroad and adopted by Canadian citizens are not entitled to automatic citizenship under either the old or the new Act. They must satisfy the requirements stipulated by the Immigration Act in force at the relevant date.

[13]                        Linden J.A., in dissent, at paragraphs 12 and 57 said:

[12]    To speak of "automatic" citizenship by jus soli or jus sanguinis, is a short-handed way to describe the rather easy way that children born abroad to Canadian parents may obtain Canadian citizenship. Actually, it is not truly "automatic", but the conditions are very easy to meet - essentially they are merely the requirements of verification, i.e., proving that the parent was a citizen and that the child was born to that parent abroad. For children adopted abroad, a more onerous set of requirements are demanded. This is so because of paragraph 3(1)(b) of the Citizenship Act, which specifically excludes adopted children from the definition of those who automatically acquire Canadian citizenship:

. . .

[57]    The fundamental ingredient in acquiring citizenship by right is a connection to Canada. This connection is represented by blood or by soil. In either case, the connection is as much a legal fiction as is the relationship created by adoption. A child who is born to a Canadian citizen abroad has no more connection to Canada than someone who is adopted by a Canadian citizen abroad. A child who is born in Canada to a foreign national and then subsequently moves to another country is no more, and probably less, connected to Canada than is someone who is adopted by a Canadian citizen. In each case we are in the world of fictions, where citizenship is defined as something natural that is imprinted at birth. But the reality is that there is nothing natural about citizenship, and in fact an argument might conceivably be made that no person should automatically become a citizen of a country, regardless of parentage or place of birth. It might be possible for a nation to require from each potential citizen, at some point in their lives, evidence of a strong connection to the land or a willingness to declare that he or she will uphold the obligations of citizenship. But as long as we grant it as of right to children of citizens, in the belief that their status as children of citizens gives them a sufficient connection to Canada, then that right must be granted without discriminating between adopted children and non-adopted children. For the connection with Canada created by the birth of a child to a Canadian should be no different than the one created by the adoption of that child by a Canadian. Any further requirements imposed by the Citizenship Act cannot, in my view, be justified.

[14]                        Therefore, when considering the word "parent," one starts with the proposition that the relationship between a person and a country must be by birth within the country, or by blood relationship with a citizen of that country, or by some other relationship clearly defined by the laws of that country.

[15]                        The "ordinary" meaning of "parent" is to be taken in the same way that the Supreme Court of Canada has defined the "ordinary" meaning of the word "child" that is, the legitimate offspring of a parent. That definition has largely been expanded by legislation to include illegitimate offspring and adopted children. As stated by Chief Justice Laskin in Brule v. Plummer, [1979] 2 S.C.R. 343">[1979] 2 S.C.R. 343 at 346:

However, it is undeniable that the ordinary, the literal meaning of the word "child" is offspring, the immediate progeny of the mother who bore the child and of the father with whom the child was conceived. To say that the word "child", standing unqualified in a statute, means legitimate child only is not to take the ordinary meaning, but rather to take away from it by a legal modification said to be compelled by the common law, to gloss it by a judicial policy that put illegitimate children beyond the pale of the law.

Clearly, the issue here depends, in large part, on one's starting point. If we begin with the ordinary dictionary and biological meaning, a meaning which embraces illegitimate children, other considerations, such as history and context, must by invoked to displace it.

Dickson J. in [1984] 2 S.C.R. 173">Ogg-Moss v. The Queen, [1984] 2 S.C.R. 173 at 184-5 made similar remarks:

Both in common parlance and as a legal concept the term "child" has two primary meanings. One refers to chronological age and is the converse of the term "adult"; the other refers to lineage and is the reciprocal of the term "parent". A child in the first sense was defined at common law as a person under the age of fourteen. This definition may be modified by statutory provision:

¼..

A child in the second sense was defined at common law as the legitimate offspring of a parent, but in most jurisdictions this definition has been amended by statute to constitute all offspring, whether legitimate or not, as the "children" of their natural or adoptive parent.

[16]                        The Citizenship Act and Regulations modify the ordinary meaning of "parent" to the extent of including an adoptive parent, but not otherwise. Were the meaning of parent to include a person having some quality of a "relationship" other than by blood with the child, born or unborn, for some undefined period of time, one would be driven to make a case-by-case, fact intensive determination for which there is no provision in the Act. A departure from the certainty of blood relationship in order to establish who is a "parent" would require clear legislation to that effect. As it stands, the Act does not, save for an adoptive parent, depart from the ordinary meaning that a parent must be one who is in a blood relationship with a child.

[17]                        I remind the parties, including the Minister, that section 5(4) of the Act provides for the granting of citizenship in "cases of special and unusual hardship."

[18]                        This application is dismissed; there will be no Order as to costs.

"Roger T. Hughes"