CV -AI-O6 6734/9-wp Court File No. ONTARIO SUPERIOR COURT OF JUSTICE SARA ANN BJORKQUIST, DOUGLAS ROY BROOKE, AB (BY THEIR LITIGATION GUARDIAN DOUGAS ROY BROOKE), PATRICK CHANDLER, PAUL CHANDLER MN (BY THEIR LITIGATION GUARDIAN PATRICK CHANDLER), OP (BY THEIR LITIGATION GUARDIAN PATRICK CHANDLER), EMMA KENYON, MARIAN KENYON, ROGER KENYON, 1J (BY THEIR LITIGATION GUARDIAN EMMA KENYON), VICTORIA MARUYAMA CD (BY THEIR LITIGATION GUARDIAN VICTORIA MARUYAMA), EF (BY THEIR LITIGATION GUARDIAN VICTORIA MARUYAMA), ALEXANDER KOVACS, KL (BY THEIR LITIGATION GUARDIAN ALEXANDER KOVACS), THOMAS SETTERFIELD, TIMOTHY SETTERFIELD, GH (BY THEIR LITIGATION GUARDIAN TIMOTHY SETTERFIELD), DANIEL WARELIS, AND WILLIAM WARELIS Applicants ~and— ATTORNEY GENERAL OF CANADA Respondent APPLICATION UNDER RULES 14.05 OF THE RULES OF CIVIL PROCEDURE NOTICE OF APPLICATION TO THE RESPONDENT A LEGAL PROCEEDING HAS BEEN COMMENCED by the Applicants. The Application made by the Applicants appears on the following page. ‘THIS APPLICATION will come on for a hearing (choose one of the following) On person (By telephone conference[a By video conference ona day and time to be set by the registrar. IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or an Ontario lawyer acting for you must forthwith prepare a notice of appearance in Form 38A prescribed by the Rules of Civil Procedure, serve it on the Applicants’ lawyer or, where the Applicants do not have a lawyer, serve it on the Applicants, and file it, with proof of service, in this court office, and you or your lawyer must appear at the hearing. IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER DOCUMENTARY EVIDENCE TO THE COURT OR TO EXAMINE OR CROSS-EXAMINE WITNESSES ON THE APPLICATION, you or your lawyer must, in addition to serving your notice of appearance, serve a copy of the evidence on the Applicants’ lawyer or, where the Applicants do not have a lawyer, serve it on the Applicants, and file it, with proof of service, in the court office where the Application is to be heard as soon as possible, but at least four days before the hearing, IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO OPPOSE THIS APPLICATION BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE, Date: _Leocomper F203] issued by iZeq Local Registrar ‘Address of SUPERIOR COl COUR SUPERIEURE OF JUSTICE DE JUSTICE court office $90 UNIVERSITY AVE. 250, AVE. UNIV ‘LOOR 8E ETAGE /ERSITY TORONTO, ONTARIO ene TORONTO, ONTARIO TO Minister of Justice and Attorney General of Canada c/o Deputy Attorney General of Canada Ontario Regional Office Department of Justice Canada 120 Adelaide Street West, Suite #400 Toronto, ON MSH ITI Tel: 416-973-0942 Via Email: AGC_PGC_TORONTO.LEAD-DCECJ@JUSTICE.GC.CA1. The Ap @ (b) ©) @ © o () APPLICATION jcants make application for: An order pursuant to s. 52 of the Constitution Act, 1982 declaring s. 3(3)(a) of the Citizenship Act,! to be unconstitutional and of no force or effect. An order pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms (“Charter”), declaring that AB, Patrick Chandler, Emma Kenyon, Alexander Kovacs, Victoria Maruyama, Tim Setterfield, and Dan Warelis are Canadian citizens, as if s. 3(1)(a) of the Citizenship Act applied to them. An order pursuant to s. 24(1) of the Charter, granting Canadian citizenship to CD, EF, GH, 1, KL, MN, and OP as ifs. 3(1)(a) of the Citizenship Act applied to them. ‘An order pursuant to s, 24(1) of the Charter, for damages in the amount of $150,000 to CD and EF, in relation to the harm they have experienced for having no choice but to leave Canada because of the denial of their applications pursuant to s, 5(4) of the Citizenship Act. ‘An order pursuant to s. 24(1) of the Charter, for damages in the amount of $150,000 to MN and OP, in relation the harm they experienced for being separated from their father, Patrick Chandler, for one year while their applications for permanent residency were under review. Costs of this proceeding. Such further and other relief as counsel may advise and this Honourable Court may deem just. 2. The grounds for the Application are: ‘The Applicants (@) The Applicants are members of six Canadian families, spanning multiple generations: the BjorkquisBrooke family (Sara Bjorkquist, Roy Brooke, and AB); the Chandler "RSC 1985, C29,() © @ © oO family (Patrick Chandler, Paul Chandler, MN and OP); the Kenyon/Warelis family (Emma Kenyon, Marian Kenyon, Roger Kenyon, Daniel Warelis, Judith Warelis, William Warelis, and J); the Kovacs family (Alexander Kovacs and KL); the Maruyama family (Victoria Maruyama, CD, and EF); and the Setterfield family (Timothy Setterfield, Thomas Setterfield, and GH). The Applicants live across the world, in Canada, Dubai, Hong Kong, Japan, and the United States of America, What unites them is a common life story. In all of the Applicant families, one or both parents were Canadian citizens who left Canada temporarily to pursue valuable opportunities internationally to study or work, and always intended to return home. While abroad, they had children — the “first generation born abroad” ~ who obtained Canadian citizenship by descent. The parents returned to Canada with the first generation born abroad, as small children, and raised them as Canadians. In all of the Applicant families, the first generation born abroad grew up in Canada. They attended Canadian schools and universities, and many worked in Canada ~ some as civil servants and political staffers. Many of the first generation born abroad have siblings who were born in Canada and were raised alongside them. Canada is home. In all of the Applicant families, the first generation born abroad who are now adults followed in the footsteps of their parents, by temporarily leaving Canada for education and/or employment, also with the intention to return home. Like their parents, the first generation born abroad started their families outside Canada. Their children are the second generation born abroad. In all of the Applicant families, the first generation born abroad retains strong ties to Canada. Their extended families (their parents, siblings, and/or their siblings’ children) live here. They all voted (or attempted to vote) in the 2021 federal election. Those who have not returned already want the right to return to Canada with the second generation bom abroad to raise them, and to reunite with their parents and extended family. But they cannot, because by law they are unable to automatically convey Canadian citizenship by descent to the second generation born abroad.The. @®) (h) @ @ (k) Bjorkquist/Brooke fami second generation cul off The legal rule that prohibits the first generation born abroad from automatically passing on Canadian citizenship to the second generation bom abroad is the “second generation cut off”, in s, 3(3)(a) of the Citizenship Act, which was added to the Citizenship Act by Bill C-372 Prior to Bill C-37, the second generation bom abroad automatically obtained Canadian Citizenship by descent, but ceased to be Canadian citizens at age 28, unle: they applied to retain their citizenship and registered as a citizen, and either resided in Canada for at least a year preceding the date of the application or established “a substantial connection with Canada”? Bill }-37 abolished the “substantial connection” regime and replaced it with the second generation cut off, a blanket rule that permanently denies to the first generation born abroad the right to automatically pass on citizenship by descent outside Canada to the second generation born abroad. The Citizenship Act does not provide any legal mechanism for the first generation born abroad to remove this restriction on their ability to transmit Canadian citizenship through descent, no matter how strong their ties to Canada are. Bill C-37 created two clas of Canadian citizenship: one for Canadians born in Canada, and one for Canadians born abroad. Canadians born in Canada could pass their citizenship to their children born abroad, but Canadians born abroad could not similarly do so. As a consequence, the first generation born abroad have a second-class citizenship because of the circumstances of their birth, which were entirely beyond their control, and which they are powerless to change. According to the 2006 Census, there were 173,030 first generation born abroad living in Canada, all of whom are affected by the second generation cut off. Sara Bjorkquist, Roy Brooke, and AB 2 an Act to Amend the Citizenship Act, SC 2008, ¢ 15. 2 Citizenship Act, 1974-75-76, ¢. 108, 5.7 (“1977 Citizenship Act”)oO (m) (a) ©) @) @ ‘handler fan Sara Bjorkquist and Roy Brooke are both Canadian citizens, on the basis of birth in Canada. The met in 2001 in Ottawa, while they were both working for the Hon. David Anderson, Minister of the Environment. During their time in Ottawa, Sara and Roy developed the desire to gain international experience and to represent Canada internationally. In 2003, they moved to Geneva, Switzerland, Sara first worked at the World Health Organization, and Roy initially at ‘the United Nations Environment Programme. Sara and Roy married in 2004 and decided to start their family in Geneva, and to bring their children back to Canada to raise them. They did not wish to wait to have children until they retumed to Canada; Sara was in her early 30’s, and Roy was in his mid-30"s. The idea of returning to Canada so that Sara could eventually give birth there did not even occur to them, as the timing of her pregnancy was not predictable and could not be planned, Once Sara leamed she was pregnant, there were practical barriers to returning to Canada to deliver her child. Sara no longer had provincial health insurance and did not have an obstetrician/gynaecologist in Canada. Air Canada only allows pregnant women to fly until the end of the 36" week. AB was born by emergency Caesarian section, the timing for which was impossible to predict. In 2010, Sara and Roy’s child, AB, was born in Geneva. AB derived Canadian citizenship by descent from their parents, In 2011, Sara and Roy returned to Victori British Columbia with AB because they wanted to raise AB in Canada, surrounded by family and friends. AB has lived in Victoria ever since, immersed in Canadian culture, surrounded by Canadian friends and family, and attending Canadian schools. It is the only home they have ever known. But if AB were to follow in their parents’ footsteps, and leave Canada temporarily to work or study, they would not be able to convey Canadian citizenship by descent to any children born abroad ratrick Chandler, Paul Chandler, MN, and OP.© () o (u) ) @&) ) Paul Chandler immigrated to Canada from Ireland and naturalized as a Canadian citizen. He met his wife, Janan Chandler (an American citizen), in 1982 in Tripoli, Libya. They had both temporarily moved to Libya to work as teachers and had been provided work visas by their employer. Neither had any intention of staying in Libya Jong term, In 1986, they mai Paul and Janan decided to start their family in Libya because of their ages. Janan was nearly 30 when Patrick was bom, and Paul was close to 46, It made sense to start their family in Libya, and to bring their children back to Canada to raise them. They did not, consider returning to Canada for their child’s birth because their lives, incomes and health care in Libya were stable. As Paul was Canadian, he and Janan knew that their child would acquire Canadian citizenship by descent, In 1987, Patrick Chandler was born in Tripoli, He derived Canadian citizenship by descent from Paul. In 1990, when he was two years old, Patrick returned to Canada. Patrick grew up in Mississauga, Ontario, He graduated from high school in Toronto and began an undergraduate degree at the University of Toronto, In 2008, Patrick decided to follow in his parents’ footsteps and work abroad temporarily, to gain international experience. He never intended to permanently emigrate. Patrick moved to China, He worked at a restaurant, and later began teaching English in Beijing. Later that year, Patrick met his wife, Fiona, a Chinese citizen. In 2009, their child MN was born in Beijing. Patrick and Fiona were not married at the time, because Fiona was too young to marry under Chinese law. MN was born stateles Because of the second generation cut off, MN had no right to Canadian citizenship. Because Fiona and Patrick were not married at the time of MN’s. birth, MN had no right to Chinese citizenship. The fact of MN’s statelessness weighed heavily on Patrick; at one point, he became suicidal. MN eventually received Irish citizenship through their grandfather, Paul Chandler,@® (aa) (bb) (cc) In 2014, Fiona and Patrick's second child, OP, was born in Beijing. Like MN, because of the second generation cut off, OP has no right to Canadian citizenship. Fiona and Patrick decided to return to Canada to raise their children in a multicultural society, and for educational and environmental reasons, Patrick returned to Canada in 2017, without his family, to accept a position as a public servant i British Columbia. He decided not to bring his children to Canada on visitor’s visas because they would not have had provincial health insurance, nor any right to attend public schools, He submitted their applications for permanent resident status immediately upon arrival in Canada, In 2018, these applications were granted, Patrick and his children were separated from each other for 12 months at a crucial age of their development: OP was 4 years old, and MN was 9 years old. This year-long separation had a very negative impact on the wellbeing of all of them. Patrick was forced to miss milestone moments and holidays with his family. It was difficult to maintain a healthy relationship over Skype, due to the time difference and ineffective technology. During a brief visit to China during their year apart, it became apparent to Patrick that his children had suffered deeply from their separation, Kenyon/Warelis family: Emma Kenyon, Daniel Warelis & 1J, Marian Kenyon & Roger Kenyon, & William Warelis (dd) (ee) (f) (gg) Emma Kenyon and Dan Warelis are Canadian citizens, They are married and live in Hong Kong. Their child, IJ, was born on 5 December 2021. Emma’s parents, Marian and Roger Kenyon, were naturalized as Canadian citizens in 1975 and were married in 1981. Their daughter Fiona was born later in 1981. In 1985, Roger moved with Marian and their first child to Tokyo, Japan, temporarily to take up a position with the Bank of Nova Scotia. They always intended to return to Canada. Emma Kenyon was bom in 1985 in Tokyo, She had been conceived in Canada, before her parents moved to Japan. She received Canadian citizenship by descent through her parents.(hh) Gi) (kk) ay (mm) (an) (00) In 1986, Emma and her family returned to Toronto, so that Roger could accept a position with the Canadian Imperial Bank of Commerce (“CIBC”). Emma was a few months old, In 1989, Emma and her family moved to London, England, for Roger to take up a position at CIBC-Wood Gundy. In 1992, Emma and her family moved back to Canada. She was six years old. Emma attended primary school, CEGEP and university in Canada. She worked in the public sector, at Correctional Services Canada, the National Parole Board, the Refugee Affairs Branch of Citizenship and Immigration Canada, and Cancer Care Ontario. Dan’s father, William (“Bill”) Warelis, is a Canadian citizen on the basis of birth in Canada, His mother, Judith Warelis, was born in England and emigrated to Canada, Bill and Judith were married in 1981. In 1984, Bill and Judith moved to New York, NY, temporarily to pursue employment opportunities at Hill and Knowlton Strategies (Bill) and the United Nations (Judith) Bill and Judith decided to start their family in the United States because of their ages: Bill was 30 and Judith was 31. They always intended to return to Canada to raise their children, There were many benefits to not returning to Canada for the birth. For example, Judith was granted a three-month paid maternity leave from the United Nations, In 1985, Daniel (“Dan”) Warelis was born in New York. He received Canadian citizenship by descent through his father. In 1986, Dan and his family moved to London, England, so that Bill could accept a position with Kingsway Public Relations, In 1991, Dan and his family moved to the United States, so Bill could accept a position at Imperial Chemical Industries Americas. In 1993, Bill returned to Canada to work at Cohn and Wolfe. Dan and the rest of his family returned to Canada in 1994. Dan was eight years old.(pp) (ss) ww (au) (wy) Dan attended primary school, high school and university in Canada, Like Emma, he worked in the public sector, at the federal Ministry of Public Services, the Canadian Embassy to Argentina in Buenos Aires, Global Affairs Canada, and the Standards ‘Council of Canada. Emma and Dan met in 2010, when they were both graduate students at the University of Ottawa, In 2016, Emma and Dan travelled to Hong Kong, and decided to stay for a few years to work. They never intended to leave Canada permanently. It was always their plan to gain valuable international work experience and then return home, as their parents had done. In 2017, Emma and Dan began trying to have a baby. At the time, Emma and Dan were oth 32. It made sense to begin their family in Hong Kong, and then return to Canada to raise their child there, close to their parents. In 2018, they married, It has been extremely difficult for Emma and Dan to conceive a child. Since 2019, Emma has undergone several rounds of in vitro fertilization (“IVF”) therapy in Hong Kong. Emma lost her first pregnaney in April 2020. Due to the economic downtown from COVID-19, they decided it was unwise to move back to Canada without employment in hand and because they wanted to continue with the IVF process, wihich is extremely expensive. Emma’s second pregnancy was confirmed in April 2021. IJ was born on 5 December 2021 and is stateless. Under Hong Kong Law, IJ has no right to Hong Kong or Chinese citizenship. Emma does not have Japanese citizenship to convey to IJ, Dan could claim American citizenship but cannot transmit it by descent to LJ because he does not meet the “substantial connection” requirement under American law, Emma and Dan decided to proceed with Emma's pregnancy in Hong Kong, notwithstanding that their child would be stateless, because of potential health and financial difficulties if they travelled back to Canada for her to deliver. Since they are not Ontario residents, her pregnaney would not be covered by the provincial health insurance plan. They would also have to find a new doctor as non-residents during the 10(ww) COVID-19 pandemic, whereas in Hong Kong she is under the care of a fertility doctor and obstetrician who understands her medical history and can adjust her [VF treatment as needed. They also considered the enormous challenges Emma had in becoming pregnant; the complexities and safety issues related to traveling during the COVID-19 pandemic; and the relatively short maternity and paternity leaves in Hong Kong (14 weeks for maternity leave and five days for paternity leave), which would make it difficult for them to return to Canada for the delivery. As soon as her second pregnancy was confirmed, Emma took conerete steps to secure Canadian citizenship for her child, to ensure they would not be stateless. She wrote to the Canadian High Commission in Hong Kong, who suggested she “consult your doctor and airline to see if you are suitable to travel back to Canada due to your pregnancy because to enter Canada, vaccination is not required.” She received similar advice from the Office of a Member of Parliament. Kovacs family: Alexander Kovacs and KL 6x) oy) (2) (aaa) (bbb) (coe) Alexander Kovacs’ father was born in Hungary, immigrated to Canada and naturalized as a Canadian citizen, Alexander's mother had Canadian citizenship based on birth in Canada. His parents were married in 1953. They had three sons in Canada, In 1965, Alexander's parents and brothers moved to Libya, so that his father could accept an offer of employment with Mobil Oil as an aircraft pilot. His parents never had.the intention of leaving Canada permanently. Their plan was always to return to Canada with their family. This post was simply a steppingstone for his father’s career. In 1968, the family moved to the Netherlands, with the intention of setting up the family’s return to Canada, and with no intention to emigrate, In 1972, Alexander was bom in the Netherlands. In 1980, at age cight, Alexander returned to Canada with his mother. Alexander attended high school and CEG) P and studied hotel management. In 1997, Alexander moved to Hong Kong to take up a management position in quality assurance at Cathay Pacific Catering Services Ltd., on a two-year contract. At no time WW(ddd) (eee) (a) (ges) (hhh) Gi) did he intend for bis move to Hong Kong to be permanent. He moved temporarily to gain international experience and pursue a job that seemed like a good opportunity, with the goal of eventually returning to Canada. He has always looked for employment opportunities back in Canada but has not been able to find a suitable position. In 2004, Alexander met his wife, Irene, who is an Indian citizen by birth. Alexander and Irene were married in 2010. In 2011, Irene discovered that she was pregnant. Their child had been conceived in Canada, while Irene and Alexander were on vacation, Irene and Alexander actively investigated the possibility of Irene returning to Canada to deliver, so that their child could have Canadian citizenship. They concluded that it was impossible for Irene to retum to Canada to give birth, Irene would not have provincial health insurance in Canada and was unsuccessful in her attempts to find an obstetrician/gynaecologist at her stage of her pregnancy. Irene was employed full-time in Hong Kong and had to work right up until her due date, Alexander and Irene did not feel comfortable with Irene flying internationally after a certain point during the pregnancy. Alexander would not have been able to return with her to Canada for the delivery, because he could not take sufficient vacation time, and because of the uncertainty surrounding the timing of the birth, In 2011, their child KL was born in Hong Kong. In 2019, Alexander, Irene and KL temporarily relocated to Dubai, United Arab Emirates. China’s influence on Hong Kong had begun to negatively affect Alexander's work. He was particularly concerned about Hong Kong’s National Security Law. In 2018, when Michael Kovrig and Michael Spavor were taken as political hostages by the Chinese government, Alexander began to feel vulnerable and unsafe in Hong Kong. Since moving to Dubai, Alexander’s fears about raising his family in Hong Kong, and his desire not to return, have only become deeper, because of official travel advisories issued by the Government of Canada. Alexander's right to reside in Dubai with his family is based solely on his employment. Alexander and his family want to return to Canada, and ideally at a time when KL is 12Maruyama family: Victoria Maruyama, CD, and i) (kkk) au (mmm) (nnn) (000) (ppp) (aaa) still at school age so that they will have a chance to strengthen their roots to Canada and build long lasting friendships Victoria’s father was born in Vietnam, immigrated to Canada, and acquired Canadian citizenship through naturalization, He moved to Hong Kong for work, where he met Victoria’s mother, They were married in 1976. In 1979, Vietoria was bom in Hong Kong. She received Canadian citizenship by descent through her father In 1980, when she was only a year old, Victoria and her family retuned to Canada ‘Victoria attended primary school, secondary school, and university in Canada, In 2001, like many other recent Canadian university graduates, Victoria moved to Japan to teach English. She never had the intention to emigrate from Canada, She went to Japan temporarily, to eam money to pay off her student loans, to gain international work experience, and to travel. In 2002, Victoria met her husband, a Japanese national. They were married in 2007. In 2008, Victoria became pregnant with her first child. She and her husband had decided to start a family for a number of reasons. She was 29 and did not want to put off having children. Victoria and her husband had a stable life with steady incomes, and her employer provided maternity leave. However, before her first child was born, Victoria always knew that she wanted to raise her children in Canada surrounded by her family and Canadian culture. To raise her children in Canada, she wanted her children to have Canadian citizenship. When Victoria became pregnant, she assumed she could pass on Canadian citizenship to her children. Citizenship and Immigration Canada (“CIC”) informed her that the only option for her child to obtain Canadian citizenship was for her to fly back to Canada to give birth there. 13(rm) (sss) cr) (uuu) (ww) (www) ‘The option of returning to Canada to deliver was completely infeasible. Victoria was seven or eight months pregnant when she was informed of this option and was worried about flying. She was not sure that an airline would transport her to Canada. She had an obstetrician whom she trusted and health insurance in Japan. By contrast, she would not qualify for health insurance in Alberta until three months after returning, which would be after her delivery date. Moreover, she did not have an obstetrician/gynaecologist in Alberta, In addition, she was still working until a month before her delivery. For financial reasons, she could not simply stop working and fly to Canada, Her husband would have been unable to accompany her to Canada for the birth, and it was important to her for him to be there to support her. In 2009, Victoria’s first child, CD, was born in Japan. In 2011, Victoria’s second child, EF, was also born in Japan. Victoria remained in Japan for EF’s birth instead of returning to Canada for similar reasons. In summer 2017, Victoria and her family arrived in Edmonton to settle, Vitoria and her husband had decided that moving to Canada was the best thing for CD and EF, who ‘were being bullied at their school in Japan for being mixed race (Chinese and Japanese). Victoria wanted to bring them up in a multicultural environment that values diversity. In addition, she felt she had a duty fo care for her older sister, who was extremely ill and undergoing major surgery. Victoria’s children arrived on visitors’ visas. She commenced the process of applying for Canay citizenship for CD and EF as soon as she arrived, Immigration, Refugees and Citizenship Canada (“IRCC”) advised her to apply for a grant of citizenship for her children pursuant to s, 5(4) of the Citizenship Act, which she did in August 2017. While CD and EF’s applications for Canadian citizenship were pending, Victoria was intent on them beginning their lives in Canada. The children enrolled in Edmonton public schools and were eventually able to obtain Alberta health insurance coverage temporarily. In July 2018, Victoria and her family had no choice but to return to Japan, because their visitor's visas had run out and her children’s health insurance coverage had expired. In 4fall 2018, Victoria and her family returned to Edmonton on Temporary Residence Permits, and her children attended public schoo! again. (xxx) In January 2019, IRCC informed CD and EF that their applications for Canadian citizenship under s. 5(4) of the Citizenship Act had been denied. In February 2019, Victoria applied for permanent resident status for her children. In July 2019, Vietoria and her children returned to Japan, because her husband had an offer of employment there. They would have strongly preferred to remain in Canada but could not because CD and EF’s s. 5(4) applications had been denied, (yy) In 2020, CD and EF’s applications for permanent residency were denied. IRCC had concluded that CD and EF were not serious about being Canadian and had no intention of returning to Canada. (zzz) CDand EF feel very Canadian and want to return, They are fluent in English and would prefer to live in a multicultural society. In Japan, they continue to experience racism, because they are mixed race and do not speak Japanese perfectly. In addition, CD has realized they are transgender, which has caused them a great deal of anxiety in a conservative society. They have engaged in self-harm. CD wishes to come back to Canada where they can be accepted for who they are. Setterfield family: Timothy Setterfiel (aaaa) Thomas (“Tom”) Setterfield was born in Ottawa in 1957 and acquired Canadian citizenship on the basis of birth in Canada. Penelope (“Penny”) Setterfield was born in the United Kingdom in 1954. They met backpacking in Thailand in 1982. In 1983, they were married in Ottawa. (bddd) In 1984, Penny and Tom moved to Fiji, because Tom was hired as a geologist by ‘Wester Mining Corporation. They viewed their relocation to Fiji as temporary and never had the intention to emigrate. Penny and Tom decided to start their family in Fiji, because Penny was 30 and did not have paid work in Fij (cece) In 1985, Timothy (“Tim”) Setterfield was born in Fiji, He received Canadian citizenship by descent from Tom, 15(daddy (cee) em (gege) (ohhh) Gi) (kkk) ay In 1988, the Setterfields moved to England so Tom could complete his PhD at the University of Cambridge. Tom and Penny never intended on staying in England permanently. There were few jobs for geologists in England, and Penny could not support the family, because she was the primary caregiver and could not work outside of the house. It was important for them to return to Canada to raise their children, for educational and cultural reasons. In 1991, the Setterfields returned to Canada, for Tom to take up a position as a geologist in Chibougamau, Quebec. Tim was 5 years old. ‘im attended school and university in Canada. In 2013, Tim moved to the United States to start his PhD in Aeronautics and Astronautics at the Massachusetts Institute of Technology. In 2017, Tim accepted a position at the National Aeronautics and Space Administration’s (“NASA”) Jet Propulsion Laboratory (“JPL”). In 2018, Tim married his wife, who is an American citizen, Their child, GH, was born in the United States in 2020. When Tim’s wife was seven months pregnant, he learned from an immigration lawyer that he would not be able to pass on Canadian citizenship to their child. Returning to Canada for Tim's wife to give birth was not an option. It was unwise for his wife to travel at that stage of the pregnancy. She would not have been eligible for provincial health insurance and did not have an obstetrician/gynecologist in Canada, In addi mn, JPL’s policies did not permit Tim to work outside the United States for extended periods of time. In 2017, Tim applied for the Canadian Space Ageney’s Astronaut Comps, and reached the final 72 applicants. If the opportunity were to arise again, he would reapply. ‘Tim wants to give the gift of Canadian citizenship to GH for many reasons. He worries about the effects of climate change making parts of the United States unlivable, and not being able to bring his family back to Canada in case they need to return. If his parents become ill, he wants to be able to return to Canada to take care of them without having.Section 15 to be separated from GH — that is, he does not wish to choose between his obligations asa son and a father. (mmmm) The second generation cut off violates the s. 15 of the Charter in relation to the first (nnn) generation born abroad. The second generation cut off draws a distinction among Canadian citizens based on country of birth —i.e., between those who were born in Canada and those born in other countries — in relation to the quality of the Canadian citizenship they may automatically transmit to their children, This distinction is drawn on the basis of “national origi an enumerated ground of prohibited discrimination under s. 15. ‘National origin encompasses place and/or country of origin, which in turn includes country of birth. b, This distinction is discriminatory because it reinforces, perpetuates, and exacerbates pre-existing disadvantage. Canada’s citizenship laws have from their inception disadvantaged children born to Canadians abroad. The 1947 Citizenship Act ~ Canada’s first citizenship law — denied citizenship to children born abroad to Canadian soldiers and unwed mothers, which discriminated on the basis of sex and marital status.‘ These rules were later justified by reference to anxieties around the changing racial and ethnic composition of Canada, since Canadian soldiers may have had children with non-European mothers, and therefore additionally discriminated on the basis of race and nationality. Under the 1977 Citizenship Act, children born abroad to Canadian women continued to have second-class citizenship, which the Supreme Court struck down in Benner v. Canada in 1997 as constituting sex discrimination ‘The second generation cut off discriminates on the basis of the intersection of national origin and sex against women who are first generation born abroad. * The Canadian Citizenship Act, SC. 1946, ¢. 15, 8.5 (“1947 Citizenship Act") 511997] 1 SCR 358. 7