Chapter CP 4 - Grants

Section 4 - Grant of citizenship—5(2)(b)

4.1 This section is about

• granting citizenship to a person born in wedlock outside Canada before February 15, 1977 of a Canadian mother and non-Canadian father.

4.2 Authorities

4.3 Requirements of the Act

The requirements to be met are to be found in the Supreme Court decision of Benner vs. Canada, 1996. This Supreme Court decision means that in assessing a 5(2)(b) application, sections 3(1)(c), 12(3), 19, 20 and 22 of the Act, and 20 of the Regulations, regarding the prohibitions and the Oath requirement, shall be read as not applying to paragraph 5(2)(b).

The requirements to be met for a grant of citizenship under 5(2)(b) are:

• born in wedlock outside Canada between January 1, 1947 and February 15, 1977
• whose mother was a Canadian citizen at the time of the applicant’s birth
• whose father was not a Canadian citizen at the time of the applicant’s birth

OR

• born in wedlock outside Canada between January 1, 1947 and February 15, 1977
• whose father was a Canadian citizen at the time of the applicant’s birth
• who acquired citizenship through his or her father

AND

• who lost citizenship as a result of the father’s actions

AND

• whose mother was a Canadian citizen at the time of the applicant’s birth

4.4 No oath required

There are no language, knowledge or residence requirements for a grant of citizenship under 5(2)(b). Applicants are not subject to clearances nor is an applicant required to take the Oath of citizenship.

4.5 Form

Each applicant must submit an Application for Citizenship under Paragraph 5(2)(b).

4.6 Fee

Each application must include the non-refundable processing fee and the Right to Citizenship fee. The Right to Citizenship fee is refunded if for any reason, the applicant does not acquire citizenship (applicant with draws application).

4.7 Documents

Each application for a grant of citizenship must include certified true copies or originals of the following:

• birth certificate showing name of mother
• evidence that mother was married at time of applicant’s birth
• evidence father was not a citizen at time of birth
• evidence of mother’s citizenship at time of birth
• two pieces of personal identification, such as a driver’s license, bank card, medical card, passport, etc.

4.8 Translation of documents

Any document that is not in English or French must be accompanied by the English or French translation and by an affidavit form the person who completed the translation.

4.9 Photographs

The applicant must provide two identical citizenship size photographs with his or her application. See specification for photographs. Photographs must be signed. Check to make sure that the applicant has signed the photographs and that the signature matches the applicant’s signature on the application.

4.10 Applicant sign and date form

The application must be signed and dated by the applicant.

4.11 Abandonment

There is no provision for the non-approval of an application for failure to provide documents. However, the application may be considered to have been abandoned. See section on abandonment.

4.12 Overview of Process

• application is received in Sydney.
• CPC-S verifies documentation
• persons processing 5(2)(b) applications work around the current CRS procedures to ensure client information is not transmitted to CSIS, RCMP or Immigration for clearances
• CPC-S official approves application (grants citizenship)
• certificate of citizenship is mailed directly to the applicant.

4.13 Effective date

Grants of citizenship under paragraph 5(2)(b) of the Citizenship Act take effect the date such applications are approved by the officer.

4.14 Background on Section 5(2)(b)

The original intent of section 5(2)(b) of the 1977 Act was to correct the discrimination of the 1947 Act. The 1947 Act said that only the responsible parent could pass citizenship on to his or her child. The responsible parent of a child born in wedlock was the father; the responsible parent of a child born out of wedlock was the mother.

In 1977, section 5(2)(b) was enacted to allow for the grant of citizenship to children born in wedlock, outside Canada to a Canadian citizen mother providing the child was born between January 1, 1947 and February 15, 1977. Persons filing for a grant of citizenship under this section were subject to the Act’s prohibitions. Applications had to be cleared by CSIS, RCMP and Immigration. Applications could be rejected if a person was prohibited under section 19, 20, 21 or 22. Applicants, once approved, had to take the Oath of citizenship.

Two superior court decisions have changed the original intent of this section. First, in the case of Glynos v. The Queen, The Federal Court has ruled that a person is entitled to regain citizenship derived through the mother that was automatically lost under the 1947 Act, because the person's father lost his Canadian citizenship by becoming a citizen of a foreign country. Second, in the case of Benner v. Canada, the Supreme Court has ruled that persons applying under 5(2)(b) are not subject to the prohibitions nor to the requirement to take the oath of citizenship.

4.14.1 Glynos v. The Queen

The case of Glynos v. The Queen concerned an applicant born to a Canadian mother and a Canadian father. The birth was registered in accordance with section 5(1)(b) of the 1947 Act. The applicant's father became a naturalized citizen of the United States when the applicant was three years old. The applicant's mother did not become a U.S. citizen. Under Sections 15 and 20 of the 1947 Act, the father lost Canadian citizenship when he became a U.S. citizen. Because the father lost his citizenship, so did his child.

Later, the applicant's mother, who was still a Canadian citizen, applied for a proof of citizenship on behalf of her child under section 5(2)(b) of the Act. The mother's application was denied and the denial appealed to the Federal Court of Canada.

4.14.2 Benner v. Canada

An applicant for the grant of citizenship under section 5(2)(b) could not become Canadian because the applicant was prohibited on criminal grounds. The refusal of the application was taken to the Supreme Court of Canada. On February 27, 1997, the Supreme Court ruled that section 5(2)(b) of the 1977 Act was discriminatory. The decision said that it allowed for different treatment for children born in wedlock outside Canada between January 1, 1947 and February 15, 1977, in comparison with children born of a Canadian father during the same period. Also, it stated that section 5(2)(b) creates a distinction not allowed for under the Charter and suggests that children born in wedlock to Canadian mothers and non-Canadian fathers are more dangerous than children born to Canadian fathers, since section 5(2)(b) applicants are subject to the prohibitions under the Act and required to take the oath of citizenship. The High Court clearly said that persons wishing to obtain citizenship through the mother cannot be refused on criminal grounds.

In September 1997, the Supreme Court rendered its decision ruling that such applicants would no longer be subject to sections 3(1)(c), 12(3), 19, 20, 22 of the Act and section 20 of the Regulations.