A Canadian flag waves in the wind on Centre Island in Toronto on Thursday, Sept. 19, 2024. AP Photo
Canada now moves forward with a major change to its citizenship rules after new legislation addressing the long-standing “Lost Canadians” issue became law on Thursday. The Senate approved the bill one day earlier, clearing the way for royal assent. The change aims to correct what a court called an unconstitutional restriction on who Canadians can pass citizenship to.
The term “Lost Canadians” refers to people born outside the country to Canadian parents who were also born abroad. In 2009, the federal government created a rule that allowed Canadians abroad to pass citizenship to their children only if those children were born in Canada. In December 2023, the Ontario Superior Court ruled that this limit violated the Constitution. Lawmakers then moved to fix the problem before the court’s January 20 deadline.
New Rules for Passing Citizenship to Children Abroad
The new legislation introduces a different test for citizenship by descent. Parents can now pass citizenship to children born or adopted outside Canada if the parents lived in Canada for a cumulative three years before the child’s birth or adoption. The change allows Canadians with deep ties to the country to pass on their citizenship beyond the first generation.
However, the bill sparked concern among some senators and lawyers who say adopted children born abroad face unfair treatment under this rule. Saskatchewan Sen. David Arnot raised strong objections. He said the law uses the broad term “international adoption,” which covers adopted children who later grow up in Canada and go through a thorough immigration and citizenship process.
Arnot said these children already pass strict safeguards. “Intercountry adoptees must be treated the same as domestic adoptees. It is a requirement of the Hague Convention that intercountry adoptees have the same rights and treatment as in-country adoptees,” he said. He argued that domestic adoptees face no substantial connection test, so international adoptees should not face one either.
Concerns About Unequal Treatment
Arnot chose not to amend the bill because of the tight deadline set by the court, but he urged the immigration minister to come back to the issue. Immigration lawyers Sujit Choudhry and Maureen Silcoff now prepare for a potential Charter challenge on behalf of intercountry adoptees.
Choudhry said the rule creates a clear inequality. He said internationally adopted children who gained citizenship through a grant may later face hurdles that domestic adoptees never face. “The concern is that they are required to complete the requirements for the substantial connection test… Whereas a domestic adoptee doesn’t need to meet that test,” he said. He added that this unequal treatment conflicts with both the Charter and Canada’s obligations under the Hague Convention.
Several MPs attempted to add clarifying amendments during the earlier stages of debate. Ontario Liberal MP Nate Erskine-Smith and B.C. NDP MP Jenny Kwan pushed for changes to the adoption wording, but both efforts failed. Conservative and Bloc MPs also tried to tighten the three-year residency rule by requiring it to occur within a five-year window. Liberal and NDP MPs removed that change before sending the bill to the Senate. Quebec Conservative Sen. Leo Housakos later tried to reintroduce the amendment, but the Senate rejected it.
A New Chapter for Citizenship Rights
With the law now in effect, many families who felt left out of Canada’s citizenship system gain a path forward. But debates continue over how the changes affect adopted children born abroad. Lawyers and lawmakers expect more discussion — and possibly a court case — as the government prepares to address remaining concerns.
