Chapter CP 7 - Waivers

Section 2 - Guardianship

2.1 This section is about

individuals who cannot act on their own behalf in the citizenship process because of a mental disability.

2.2 Introduction

The decision-maker must be confident that the person applying for citizenship understands the significance of what he/she is doing. If this is not certain, another person must apply on behalf of the applicant. The decision-maker must be convinced that the person applying on behalf of the applicant is acting in the best interest of the applicant.

2.3 Indications applicant can't act on own behalf

Indications that an applicant cannot act on his or own behalf include:

• a relative or friend applying for or with the applicant
• a request to waive knowledge or language requirements because of mental disability.

2.4 Application

The citizenship legislation stipulates who may apply on behalf of a minor, and that adults make their own applications. There is nothing in the legislation addressing the situation when someone purports to act on behalf of an applicant who has a mental disability. This policy will help officers and judges to deal with those situations where an applicant cannot understand the significance of the oath of citizenship.

2.5 Policy

Where there is doubt that a citizenship applicant can conduct his/her own affairs in the citizenship process, another person must apply on their behalf. The person acting on behalf of the applicant must provide showing he\she has the legal right and duty to care for the incompetent person.

2.6 Parents are de facto guardians for minors

A parent is considered the guardian for their minor child. The birth certificate showing parentage is sufficient evidence.

2.7 Guardianship

The Canadian Law Dictionary defines "guardian" as a person who has the legal right and duty to care for another person. Guardianship can arise in a number of ways including:

• election by the incompetent (power of attorney)
• appointment by the court (judicial court order)
• assumption of the role of guardian without legal authority (guardianship role simply assumed by another party).

2.8 Guardianship Assumed

Where guardianship has been assumed (no power of attorney or court order obtained), an affidavit from the legal care giver is acceptable. This situation arises most commonly where the parent or sibling has the care for their mentally incompetent adult child or sibling.

2. 9 Adult child care giver of parent

An adult child responsible for their incompetent parent will usually have a court order or power of attorney document.

2.10 Documents needed for guardianship

Include with all waiver recommendations to waive the oath for medical reasons:

• a completed Request for Medical Opinion form
• the document proving guardianship
• power of attorney document and\or
• judicial court order and\or
• an affidavit, if required.

2.11 Affidavits in lieu of formal documents

An affidavit is acceptable where guardianship has been assumed and formal documentation is not easily obtained.

Affidavits should:

• be written by the guardian in the person's own style;
• indicate that he or she is qualified to act on the applicant's behalf;
• be expressed in simple understandable English or French;
• contain specific information outlined below; and
• include signed statements/letters, outlining the facts, of other family members/interested parties, if available.

2.12 The decision maker should be confident that

• the guardian understands the significance of guardianship and what is being done; and
• the guardian is acting in the best interest of the applicant.

After the supporting affidavit(s) are completed and accepted, the person designated to act on the citizenship applicant's behalf will carry out the normal application process, signing all standard forms on behalf of the applicant.

Related topic

See Taking affidavits or declarations.

2.13 Refer questions to Case Management Branch

Ask Case Management Branch if in doubt about a guardianship or power of attorney document.

2.14 Waiver of oath under section 5(3)

In the case of an adult applicant, the citizenship judge has the power to recommend to the Minister that certain requirements be waived. Where the judge finds that a recommendation to waive the language and/or knowledge requirements and/or the requirement that the oath be taken, for reason of a mental disability, is justified, the applicant's file will include the guardianship documentation with the usual documentation. The applicant's complete file will be forwarded to Case Management Branch for consideration of the recommendation.

2.15 Affidavit not required for minor

In the case of a minor over 14 years of age, if the citizenship officer is satisfied that the minor is prevented from understanding the significance of the oath of citizenship, for reason of a mental disability, the case will be forwarded to Case Management Branch for consideration with the usual documentation for waiver consideration. An affidavit is not required for minors as the person authorized by regulations to apply on behalf of the child (usually the parent) is the guardian.

2.16 When to obtain documentation

The request for documentation concerning a person who is mentally incompetent should be made as soon as CIC officials are made aware that the person may be mentally incompetent. Call Centres should inform the caller of the required documentation when the caller indicates he/she is calling on behalf of a person who is mentally incompetent. Mailed in applications accompanied by satisfactory documentation (medical opinion form and evidence of guardianship) may be processed in the usual way. Applicants will be referred to a judge for a personal appearance.

Where there is no indication prior to the test session that a person may be incompetent, the documentation will be requested as soon as CIC officials are made aware of the situation.

2.17 Over 60 and at ceremony

Persons 60 and over are not required to demonstrate knowledge of either official language or of Canada. These requirements are waived automatically and the applicant’s only appearance before a CIC official may be at the time of the oath taking.

2.18 Do not administer oath or present certificate

Where it is apparent to an officer or judge at a citizenship ceremony, that a person is not capable of understanding the significance of the oath, even when explained in their mother tongue, the oath will not be administered and the certificate will not be presented.

2.19 Request documentation

The person assisting the incompetent person at the ceremony should be told that the application needs to be filed by someone who has the legal care of the applicant and that a recommendation to the Minister to waive the oath needs to be obtained before the applicant can be issued a citizenship certificate.

2.20 Refer applicant to judge

The applicant should be referred to a judge as soon as practicable. The judge will determine whether to recommend a waiver of the oath. The application form is to be forwarded to Case Management Branch with the documentation required (medical opinion and evidence of guardianship) and the citizenship certificate. Where the request for waiver is approved, Case Management Branch will return the file to the judge for completion of the judge’s decision.

2.21 Advance Waiver

Advance waivers of the oath may be requested for incompetent persons over 60.

2.22 Mail certificate to applicant

When the oath has been waived, the certificate is mailed directly to the applicant.

2.23 Information required for an affidavit to act on behalf of a citizenship applicant

Information to include:

An affidavit concerning guardianship should include information as follows,

1. Application ID No. (If known by applicant)

2. (Name of Guardian) of the city of (Name of City) in the province of (Name of Province) affirm that:

3. Using the first person, the Guardian should state what his/her relationship is to the applicant (State Applicant's Name) born on (State Applicant's Date of Birth) in (State Applicant's Place of Birth), whose application for citizenship is being/was made on (State Date Application Made).

4. The Guardian should state why he/she is acting on behalf of the client (State Applicant's Name). The Guardian should include any relevant facts including the nature of the relationship with the client and any legal authority presently held showing that the Guardian can represent the client.

5. The Guardian should state whether he/she is acting in the best interest of the client. The guardian should include any known personal knowledge of the client's needs and wishes.

6. The Guardian should state whether a medical certificate in respect to the client is on file or attached to the affidavit.

7. The guardian signs the affidavit.

8. The affidavit is attested by an authorized person.

Related Topic

See taking affidavits or declarations.