Ontario's Superior Court of Justice has ruled it's unconstitutional for Canada to deny automatic citizenship to children born abroad to parents born overseas but with substantial ties to Canada. The decision grants citizenship to foreign-born children of Canadian parents in the "Lost Canadians" category.
The ruling affects the second-generation cut-off rule established in 2009, which prevented first-generation foreign-born Canadians from passing citizenship to their children born abroad. The court found this violates the Charter of Rights and Freedoms by creating "two classes of citizenship."
The decision impacts seven multi-generational families across Canada, Dubai, Hong Kong, Japan, and the U.S. The federal government has 30 days to decide on an appeal and six months to amend the Citizenship Act.
The second-generation cut-off rule was created in 2009 during a Conservative government response to "Canadians of convenience" concerns. It required affected children to sponsor parents as permanent residents or face statelessness.
The court found the rule discriminates by denying citizenship to those born overseas, even with strong Canadian ties. Notably, naturalized citizens had greater rights than those born to Canadian-born parents, contradicting Charter principles. The ruling also noted that women were disproportionately affected due to pressure to choose between childbearing abroad and citizenship for children.
The test case involved Emma Kenyon, born to Canadian parents working in Japan, who studied in Canada and met her husband in Canada. She chose to give birth in Hong Kong during the pandemic due to medical and financial barriers to relocating. Her son Darcy was born stateless in 2021 but later granted citizenship after personal appeal to the immigration minister.
The federal government argued citizenship is not a Charter right, citing discretionary powers for exception cases. However, the court rejected this argument, finding the rule unconstitutional.