T-1-88
Re Calderwood
INDEXED AS: CALDERWOOD (RE) (T.D.)
Trial Division, Joyal J.—Ottawa, June 1 and 30,
1988.
Citizenship — Residency requirements — Statute requiring
three years' residence in Canada during four years immediate
ly preceding application — Applicant establishing place of
residence in Canada prior to two-year appointment in Nigeria
with Canadian University Students Overseas (CUSO) —
Absence of fixed abode in Canada must be balanced against
other factors — Considering all circumstances, lack of physi
cal establishment in Canada not bar to meeting residency
requirements.
The appellant, born in Scotland, became a landed immigrant
in 1968. In 1984, she went to Nigeria where she taught school,
under the sponsorship of CUSO, for two years. She returned to
Canada in 1986 and thus had been out of Canada during two of
the last four years of residency. Under paragraph 5(1)(b) of the
Citizenship Act, three years of residence of the four years
preceding an application are required, and the applicant must,
if absent for a prolonged period, show that he did not intend to
abandon Canada as his place of permanent residence. This is an
appeal from the Citizenship Court's refusal to grant Canadian
citizenship.
Held, the appeal should be allowed.
To meet the requirements of section 5 of the Act, physical
presence for the stated minimum number of years is not
essential, so long as it is shown that the applicant "in mind and
fact settles into or maintains or centralizes his ordinary mode of
living with its accessories in social relations, interests and
conveniences" in Canada. Assertions of the intention to reside
in Canada should be buttressed by objective evidence, to avoid
applicants adopting Canada as a mere flag of convenience. The
spirit of the statute must be applied, and regard had to every
material fact to support or oppose a finding of continued
residency. In the instant case, the following factors were rele
vant: the applicant's marriage to a Canadian, attendance at
three Canadian universities to obtain a law degree, the inten
tion to return indicated by her obtaining a Returning Resi
dent's permit, and the temporary nature of the CUSO appoint
ment. In the light of all the circumstances, the lack of a
physical establishment in Canada during her absence was no
bar to meeting the residency requirements under section 5.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Citizenship Act, S.C. 1974-75-76, c. 108, s. 5(1)(b) (as
am. by S.C. 1976-77, c. 52, s. 128).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Thomson v. Minister of National Revenue, [1946]
S.C.R. 209.
APPLIED:
In re Papadogiorgakis and in re Citizenship Act, [1978]
2 F.C. 208; 88 D.L.R. (3d) 243 (T.D.); Canada (Secre-
tary of State) v. Nakhjavani, [1988] 1 F.C. 84 (T.D.); Re
Roberts (1978), 92 D.L.R. (3d) 76 (F.C.T.D.)..
DISTINGUISHED:
Re Kumar, T-2349-79, Thurlow A.C.J., judgment dated
2/11/79, F.C.T.D., not reported; Re Stafford (1979), 97
D.L.R. (3d) 499 (F.C.T.D.).
CONSIDERED:
Re Anquist (1984), 34 Alta. L.R. (2d) 241; [1985] 1
W.W.R. 562 (F.C.T.D.); Re Chan (1986), 7 F.T.R. 1
(F.C.T.D.).
COUNSEL:
Moira Reid Calderwood, on her own behalf.
Maria Natziuk, amicus curiae.
SOLICITORS:
Maria Natziuk, Ottawa, amicus curiae.
The following are the reasons for judgment
rendered in English by
JOYAL J.: This Court is seized of an appeal from
a decision of the Citizenship Court refusing to
grant Canadian citizenship to the appellant on the
grounds that she had failed to pass the residence
test stipulated in paragraph 5(1)(b) of the
Citizenship Act [S.C. 1974-75-76, c. 108; 1976-77,
c. 52, s. 128].
I should observe that a citizenship appeal before
this Court is effectively a trial de novo. I have
therefore the privilege of hearing and considering
all the evidence before me as if the appellant's
citizenship application was being heard for the
first time.
The appellant, born in Scotland in 1957, has
been a resident of Canada since the age of eleven
years. She became a landed immigrant in 1968.
She went to school in Canada and married a
Canadian citizen in 1980. She entered into courses
of study at Trent University in Peterborough and
later, at St. Francis Xavier University in Antigo-
nish. She subsequently graduated from Queen's
University in Kingston.
In August 1984, the appellant and her husband,
under the sponsorship of Canadian University Stu
dents Overseas (CUSO), took up residence in Ni-
geria and for the next two years of their appoint
ment there, the appellant taught school. She and
her husband returned to Canada in July 1986.
They then proceeded to complete their articles for
admission to the Law Society of Upper Canada.
They expect to be admitted to the practice of law
in April, 1989.
The appellant's absence from Canada for a
period of two years in the course of the last four
years of Canadian residency certainly invites an
inquiry as to whether or not she complies with the
residency rules outlined in section 5 of the Citizen
ship Act.
On the face of it, she does not. It might be said
of her that she picked a wrong time to apply for
citizenship status. Jurisprudence has established,
however, that to meet the requirements of section
5 of the Act, physical presence in Canada for the
stated minimum number of years is not an essen
tial requirement. A more liberal or flexible inter
pretation of the rule has been adopted by this
Court beginning, of course, with the leading case
of In re Papadogiorgakis and in re Citizenship
Act, a decision of Associate Chief Justice Thurlow
(as he then was) and reported at [1978] 2 F.C.
208; 88 D.L.R. (3d) 243. The approach taken by
His Lordship is succinctly expressed at pages 213-
214 F.C.; 247 D.L.R. of his reasons where he says:
It seems to me that the words "residence" and "resident" in
para. 5(1)(b) of the new Citizenship Act are not as strictly
limited to actual presence in Canada throughout the period as
they were in the former statute but can include, as well,
situations in which the person concerned has a place in Canada
which is used by him during the period as a place of abode to a
sufficient extent to demonstrate the reality of his residing there
during the material period even though he is away from it part
of the time ....
A person with an established home of his own in which he
lives does not cease to be resident there when he leaves it for a
temporary purpose whether on business or vacation or even to
pursue a course of study. The fact of his family remaining there
while he is away may lend support for the conclusion that he
has not ceased to reside there. The conclusion may be reached,
as well, even though the absence may be more or less lengthy.
His Lordship then adopts the observations of
Rand J. in Thomson v. Minister of National
Revenue, [1946] S.C.R. 209, at page 225 where
the issue of residency may be said to be "chiefly a
matter of the degree to which a person in mind
and fact settles into or maintains or centralizes his
ordinary mode of living with its accessories in
social relations, interests and conveniences at or in
the place in question."
An analysis of the Papadogiorgakis decision
discloses the numerous avenues of enquiries which
may be followed in order to establish if residency
rules under the Citizenship Act have or have not
been met. Various indicia have accordingly been
applied in individual cases. Such indicia as family
connections in Canada, a continuing place of resi
dence, bank accounts in Canadian banks, provin
cial driving licences, membership in OHIP or in
community and professional organizations, fre
quency of return trips to Canada, have been
applied. The list may be said to be inexhaustible
and the weight to be given to any of its several
manifestations may of course vary from case to
case.
As a result, the conclusions which may be drawn
by the application of all such surrounding circum
stances will not often meet that degree of math
ematical precision which a simple day-count would
provide. It is a fact-finding situation with its usual
inferences, implications or conclusions on which
judgment calls may very well be different.
I should also observe at this point that in most
cases which have been scrutinized by the Court,
the indicia which were applied concerned appli
cants who barely met the four-year rule since
becoming landed immigrants. It was then incum
bent upon the Court to ask for more than self-serv
ing assertions by the applicant of his intentions to
reside in Canada, or to return to it. These asser
tions, on the face of long and protracted absences
from the country carry, in my view, little weight
unless they are buttressed by objective evidence or
by facts which are consonant with avowed inten
tions. The risk, otherwise, is to create abusive
situations where both the intentions of Parliament
are frustrated and the doctrine laid down in Re
Papadogiorgakis becomes reductio ad absurdem.
Precedents also disclose cases where even the
prior establishment of a residence in Canada, a
condition sine qua non to any enquiry under the
Papadogiorgakis rule, was left in doubt. If a
person becomes landed in Canada but immediately
leaves it to carry on his usual occupation or busi
ness abroad, the application of the indicia I have
referred to simply begs the question as to whether
such a person can possibly have an intention to
return to a Canadian residence which he has not
even established. As I permitted myself to suggest
in Canada (Secretary of State) v. Nakhjavani,
[1988] 1 F.C.' 84 (T.D.), the extended meaning
given by the Court to the term "residence" should
not be construed as enabling an applicant to adopt
Canada as merely a flag of convenience.
Muldoon J. had occasion to make the following
comment in Re Anquist (1984), 34 Alta. L.R. (2d)
241, at page 249; [1985] 1 W.W.R. 562, at pages
571-572 (F.C.T.D.):
The spirit of the Act has not been changed by the subsequent
amendment even though the means of establishing residence
have been broadened by reference to s. 24 of the Immigration
Act, 1976. As Pratte J. indicated, Parliament intended that the
applicant for citizenship demonstrate that he or she has actual
ly resided among Canadians and in effect thrown in his or her
lot with us in some Canadian community.
The foregoing observations are meant to guard
against the adoption of prescriptive or fixed cri
teria in determining residency requirements under
the Act. One must eschew a point-count system for
each of the several indicia which have historically
been applied by the Court. Regard must be had for
the spirit of the statute and each and every ma
terial fact to support or oppose a finding of con
tinuing residency in Canada must be explored. Mr.
Justice Cullen's comments in Re Chan (1986), 7
F.T.R. 1 (F.C.T.D.), are particularly pertinent in
this respect.
I should now return to the particular case before
me. As found by the Court below, the appellant,
prior to her sojourn in Nigeria under the CUSO
program, had lived in Canada and had certainly
established residence here. She pursued her studies
through the universities of Trent, St. Francis
Xavier and Queen's. She married a Canadian citi
zen in 1980. It was given in evidence before me
that her participation in a CUSO program was by
exception, as she was not a Canadian citizen. One
must conclude that, in that respect, she was car
ried on her husband's coattails. The arrangement,
however, did permit the spouses to devote two
years of their lives in achieving CUSO's aims and
objectives. And all this, I might add, in return for
a meagre stipend.
It is true, of course, that on leaving Canada, the
appellant and her spouse vacated their apartment
in Kingston, Ontario, with some books and fur
nishings being left with her mother. It is also in
evidence, however, that neither the appellant nor
her spouse had accumulated any material assets.
Furthermore, it could not be expected that they
could realistically sublet their apartment or keep
their furnishings there and look after things from
Nigeria.
As is noted by the learned Citizenship Judge,
the appellant kept a bank account in Kingston,
kept her driver's licence which, in any event, was
valid for two years and also obtained a Returning
Resident's Permit. What was added in the evi
dence before me was that throughout the appel
lant's stay in Nigeria, CUSO was transferring to
her bank in Kingston a portion of her stipend to
reduce her bank loan.
The learned Citizenship Judge also noted, quite
appropriately, that "more than an intention to
return is required". The appellant, she said, did
not maintain anything which remotely resembled a
home of her own or any form of residential base.
She also concluded that the appellant had "essen-
tially centralized her mode of living in Africa for
the relevant period" and that "her work, her hus
band and her residential base were in Nigeria and
not Canada".
With the deepest respect and with some under
standing of the Citizenship Judge's thinking in
that regard, I must differ.
The current state of the law is not that in the
absence of a home in Canada or a residential base
in Canada, an applicant is foreclosed from meeting
the residency rules. As I have observed earlier,
regard must be had for all the circumstances
which might indicate, one way or the other, wheth
er the residency rules have been met. I have in
mind in this respect two aspects of the case which
were not before the Citizenship Judge or to which
her mind was not directed.
The first of these is of course the nature of the
appellant's involvement in the CUSO program and
the nature of the program itself. CUSO is a public
program completely funded by the Canadian
International Development Agency. CUSO volun
teers do not look upon it as an adventure in the
nature of a trade to be conducted in some
undeveloped country or other. It is effectively a
missionary, albeit secular, program to teach, to
instruct, to help and assist less-favoured people.
There is no money in it for the participant except
for the satisfaction, as in the exercise of all chari
table pursuits, of having in the process enriched
one's life as well as a neighbour's.
The program is furthermore of a strictly tempo
rary nature and the only commitment by CUSO is
that at the end of the term, the volunteer is given
an airline ticket back to Canada. During his
appointment, the only status he enjoys is that
provided through CUSO.
The other consideration is the link, ostensibly
insignificant, maintained by the appellant in
having her bank loan serviced in Canada during
her absence. This particular link must be weighed,
in my respectful view, in the light of other circum
stances. The existence of the bank loan is at least
indicative of some strain in her financial
circumstances.
In the event, I should find that the absence of a
fixed place of abode or any kind of physical place
of residence in Canada during the intervening
years cannot be determinative. Such a factor must
be balanced off against the factors I have previous
ly described. None of them, as in the case of a
house or apartment, is determinative, but I suggest
that all of them, strung together, have more per
suasive force. I should list them as follows:
1. The appellant experienced a long period of
residence in Canada as a landed immigrant.
2. She attended three Canadian universities cul
minating in her graduation from Queen's with a
degree in law.
3. She is married to a Canadian citizen since 1980
and her spouse, as well as herself have family roots
in Canada.
4. During the appellant's whole period of residence
in Canada prior to the CUSO program, there is no
evidence that she had any interest in or affiliation
with any persons, groups, institutions or communi
ties other than Canadian.
5. The fact that the appellant secured a Returning
Resident's Permit prior to her departure for
Nigeria, indicates a firm intention of retaining her
permanent resident status in Canada.
6. The appellant's continuing to service her bank
loan in Kingston is also indicative. One might
doubt in this respect that she would have been so
solicitous of her bankers had she not intended to
return to Canada.
7. What meagre furnishings or books the appellant
owned were not brought with her but were left in
the care of her mother; perhaps, this was an
imposition on the mother but it establishes as well
the appellant's links with her own family in
Canada.
8. Finally, I should note the temporary purpose,
under public auspices, of the appellant's engage
ment in Nigeria. It might be said her presence
there was the tangible expression abroad of
Canadian policies and values at home. I should not
conclude from this, as the Court below did, that it
represented a centralized, exclusive African style
of living for the relevant period.
I appreciate very much that my view of the law
might appear to be a departure from the principles
and observations enunciated by Associate Chief
Justice Thurlow in Re Kumar, T-2349-79, judg
ment dated November 2, 1979 (F.C.T.D.), not
reported, or by Addy J. in Re Stafford (1979), 97
D.L.R. (3d) 499 (F.C.T.D.) and on which the
learned Citizenship Judge relies in her decision. I
suggest, however, that these principles and obser
vations were written in the context of the particu
lar facts before the Court. To apply them too
blindly to the facts before me would close the door
to reputable though financially strapped applicants
and perhaps, in the same fashion, open them wide
to those who can maintain substantial residences
in both Forest Hills and Belgrave or, perhaps more
to the point, Victoria Peak.
I should therefore find that in the light of all the
circumstances which I have recited, the lack of an
actual, physical establishment in Canada during
the appellant's absence in Nigeria is no bar to her
fulfilling the residency requirements under section
5 of the Citizenship Act.
In my view of the law and of its application to
the case at bar, I should take some comfort in the
decision of Grant D.J. in Re Roberts (1978), 92
D.L.R. (3d) 76 (F.C.T.D.), where His Lordship
had to deal with a Canadian resident and his wife
who, although landed immigrants since 1966, had
spent most of the intervening years prior to their
citizenship application in 1978, doing missionary
work in Argentina on behalf of the United Church
of Canada. In reviewing the reasons for judgment
in Re Papadogiorgakis (supra) and commenting
at length on the whole legal concept of "resi-
dence", His Lordship said this, at page 81:
On the evidence of Reverend Roberts, I am convinced that at
all material times, it was the intention of both applicants to
remain outside Canada only for such period of time as the
United Church requested them to serve as missionaries in
Argentina and that they intended then to return and make their
permanent home in this country.
I should reach the same conclusion with respect
to the appellant before me. Her appointment in
Nigeria on behalf of CUSO's secular endeavours is
remarkably similar to Reverend Roberts' appoint
ment in Argentina on behalf of the United
Church's missionary endeavours. For purposes of
the Citizenship Act, they cannot be distinguished.
I should allow the appeal and approve the appel
lant's application for citizenship.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.