7
born out of wedlock.
19
This anachronistic rule had the effect of denying Canadian
citizenship to children born in wedlock to Canadian mothers and foreign fathers, and
children born out of wedlock to Canadian fathers and foreign mothers.
One group particularly affected by this distinction is commonly referred to as “war
babies.” These are the children of Canadian servicemen and European women born during
and just after World War II. Many of these couples were not permitted or were not able to
marry before their child or children were born, or they chose not to do so. Under the 1945
Order in Council referred to above and for the purpose of Canadian immigration law, all
children of members of the Canadian Armed Forces were deemed to be Canadian citizens
or to have Canadian domicile upon entry into Canada, whether or not their parents were
married at the time of their births. However, that order was arguably
20
superseded by the
enactment of the Canadian Citizenship Act in 1947, which introduced the rule that children
born out of wedlock derived citizenship from their mother. On that basis, Canadian
citizenship was stripped from war babies who were born out of wedlock to European
mothers. Dr. Edmonston estimates that about 6,000 war babies currently live in Canada,
some of whom were born out of wedlock.
21
One prominent war baby is Mr. Joe Taylor,
whose case is discussed below.
A second group particularly affected by the wedlock distinction is descendants of
Mennonites. This category includes persons whose Canadian ancestors moved to Mexico
in the 1920s and had church marriages instead of civil marriages.
22
For decades Canada
accepted these marriages as valid and issued citizenship documents to children of
Canadian fathers. Much later, Canada stopped recognizing those church marriages as
valid because Mexico did not recognize them. As a result, children born of such unions
were deemed to have been born out of wedlock, with the further result that prior to 1977
Canadian citizenship was not passed down through generations from father to child.
23
The
19 As noted earlier, there were other requirements to fulfil as well, such as registering the birth and registering a
declaration of retention, per the requirements in effect at the relevant time.
20 According to the Federal Court of Appeal in Minister of Citizenship and Immigration v. Taylor, 2007 FCA 349
[the “Taylor appeal”], the type of citizenship conveyed by the Order in Council was distinct from Canadian
citizenship as we know it today. As a result, the enactment of the Canadian Citizenship Act in 1947 resulted
in certain war babies who had obtained citizenship under the Order in Council no longer being recognized as
citizens. However, it has been reported that the appellant plans to appeal the decision to the Supreme Court
of Canada: infra note 59.
21 Edmonston, supra note 6, p. 4. 6,000 is an estimate of the total number of people who were born in Europe
between 1939 and 1955 who report that they were Canadian citizens at birth and who currently live in
Canada. It does not represent the number of people likely to be affected by the wedlock distinction, as many
war babies were born in wedlock.
22 Mennonite Central Committee Canada, per Bill Janzen, “Two Problem Areas For Some Born-Abroad
Canadians”, written brief, meeting no. 38, February 26, 2007: “In the 1920s over 7000 Mennonites from
Manitoba and Saskatchewan moved to Latin America, largely because the governments in these provinces
forced them, with sustained fining, to send their children to the new public schools… . A few smaller groups
followed in the 1940s… . Over the last half-century many of their descendants have moved back to Canada
mainly to avoid poverty.”
23 In cases where children were deemed to have been born out of wedlock prior to 1977, Canadian citizenship
was passed down through generations from mother to child, if the mother was Canadian.