Friday, May 30, 2014


The case below provide a short summary of the various citizenship tests that the citizenship judge may apply. In this case, however, it was unclear which test was applied, so the Federal Court quashed the grant of citizenship and ordered t he case returned for a new decision.

Canada (Minister of Citizenship and Immigration) v. Mera

The Minister of Citizenship and Immigration, Applicant, and
Segunda Manuela Mera, Respondent
[2014] F.C.J. No. 509
2014 FC 473

Docket: T-1811-13

 Federal Court
Toronto, Ontario

Mactavish J.

Heard: May 14, 2014.
Judgment: May 14, 2014.
(21 paras.) 

1     MACTAVISH J.:-- The Minister of Citizenship and Immigration appeals from a decision of a Citizenship Judge approving Segunda Manuela Mera's application for Canadian citizenship. For the reasons that follow, I have concluded that the appeal must be allowed.
I. Background
2     Ms. Mera is an 82 year old permanent resident of Canada who is originally from Ecuador. She has four daughters living in Canada, and three sons who live in Ecuador. She lives with one of her daughters while she is in Canada, and owns her own home in Ecuador.
3     Ms. Mera filed her citizenship application on August 7, 2005. Thus the relevant four-year period for assessing her residence was from August 7, 2005 until August 7, 2009.
4     Ms. Mera indicated on her citizenship application that she was absent from Canada for four trips totalling 542 days, and that she was physically present in Canada for approximately 918 days during the relevant period.
5     On September 11, 2013, Ms. Mera attended before a Citizenship Judge, following which the Judge requested a copy of her Entry and Exit report (an "ICES report") from the Canada Border Services Agency. The ICES report essentially confirmed Ms. Mera's evidence regarding her travels outside of Canada, although it did not record a brief trip to Mexico in 2008. This omission was not material to the decision of the Citizenship Judge, nor is it material to the outcome of this appeal.
6     According to Ms. Mera, her last trip outside Canada commenced on July 25, 2009, although the Citizenship Judge erroneously found that her last trip had commenced on January 21, 2010.
7     The Citizenship Judge approved Ms. Mera's application on September 12, 2013. Considering all of the evidence, including Ms. Mera's "pattern of ... absences" and her testimony, he concluded that she"was actually living and was physically present in Canada on the number of days sufficient to comply with the Citizenship Act."
II. Analysis
8     To be entitled to Canadian citizenship, an applicant must demonstrate that he or she has been resident in Canada for three out of the four years immediately preceding the application for citizenship.
9     The jurisprudence of this Court has recognized three tests that may be used in determining whether an applicant has met the residency requirements of the Citizenship Act, R.S.C. 1985, c. C-29.
10     The first is the physical presence test established by this Court in Re Pourghasemi [1993] F.C.J. No. 232. This test only asks whether the applicant has been physically present in this country for a total of three years out of four, or a minimum of 1095 days.
11     The second test is that articulated in Re Papadogiorgakis, [1978] 2 F.C. 208; [1978] F.C.J. No. 31. This is a less stringent test in that it looks at whether an applicant has an established residence and strong attachment to Canada, even if he or she has been temporarily absent away from Canada.
12     The third test is one often used in citizenship cases. This is the so-called "Koo" test, established in Re Koo, [1993] 1 F.C. 286, [1992] F.C.J. No. 1107. The Koo test looks at residence as being the place where one "regularly, normally or customarily lives" or has "centralized his or her mode of existence". Re Koo identifies six factors that are to be considered in assessing whether this test has been met. These include:

·        (1) 
physical presence in Canada for a long period prior to recent absences; 

·        (2) 
whether immediate family and dependants are resident; 

·        (3) 
whether the pattern of physical presence in Canada indicates a returning home or just visiting; 

·        (4) 
the extent of physical absences; 

·        (5) 
whether physical absence is caused by a clearly temporary situation; and 

·        (6) 
the quality of the connection to Canada. 
13     It is not clear from a review of the Citizenship Judge's brief reasons which test he applied in coming to the conclusion that Ms. Mera met the residency requirements of the Citizenship Act. As a result, the decision lacks the justification, transparency and intelligibility required of a reasonable decision. Nor is it possible to ascertain from the Citizenship Judge's reasons whether the decision falls within the range of possible acceptable outcomes that would be defensible in light of the facts and the law: see Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47, [2008] 1 S.C.R. 190.
14     In finding that Ms. Mera met the residency requirement of the Act, the Citizenship Judge states that he was satisfied that Ms. Mera "was actually living and was physically present in Canada on the number of days sufficient to comply with the Citizenship Act". This language suggests that he used the Re Pourghasemi physical presence test.
15     If that is so, the finding that Ms. Mera had satisfied the requirements of the physical presence test is perverse, given that the Judge had specifically found as a fact that Ms. Mera had only been physically present in Canada for 922 days during the relevant period, making her 173 days short of the requisite 1095 days.
16     If, as Ms. Mera suggests, the Citizenship Judge intended to apply the one of the more qualitative tests for residency, he failed to explain how he arrived at the conclusion that she had established residency in Canada. There is no indication that he considered the fact that Ms. Mera continues to own a home in Ecuador, and that she does not own a home in Canada. While this is by no means determinative of the issue of residency, they are relevant considerations that did have to be addressed in determining whether Ms. Mera had established residency in Canada.
17     Nor did the Citizenship Judge consider a number of the Re Koo factors in order to determine where Ms. Mera "regularly, normally or customarily lives" or had "centralized her mode of existence".
18     For example, no consideration appears to have been given to whether Ms. Mera's physical presence in Canada indicates that she was returning home to Canada after her lengthy trips to Ecuador, or whether she was just visiting Canada from her home in Ecuador. Nor was any attempt made to determine whether her connection to Canada was more substantial than her connection to Ecuador, in light of her substantial ties to both countries.
19     Having failed to properly apply any of the three recognized tests for residency, it follows that the Citizenship Judge's conclusion that Ms. Mera had established residence in Canada was unreasonable.
III. Conclusion
20     As a result, the Minister's appeal is allowed, without costs. The Citizenship Judge's September 12, 2013 decision is set aside. The matter is remitted to a different Citizenship Judge for re-determination in accordance with one of the recognized tests for residency.
21     As was noted by counsel for the Minister, it is also open to Ms. Mera to make a fresh application for citizenship. This would have the effect of creating a different residency period for her new application. In light of information provided by Ms. Mera's counsel at the hearing of the appeal, it appears that she may well satisfy the physical presence test for this more recent four year period.

·        1. 
The Minister's appeal is allowed, without costs. 

·        2. 
Ms. Mera's application for Canadian citizenship is remitted to a different Citizenship Judge for re-determination in accordance with one of the recognized tests for residency. 


Tuesday, May 27, 2014


This is an interesting recent case that illustrates the perils of spousal sponsorship applications. In this case, it is noteworthy that the sponsorship process was apparently not completed as the sponsorship was withdrawn, but the sponsor was found to be financially responsible  in any event.

Sidhu v. Sidhu

Vikram Sidhu, Applicant, and
Navneet Kaur Sidhu, Respondent
[2014] O.J. No. 2409
2014 ONSC 2965

Court File No. FS-12-74993-00

 Ontario Superior Court of Justice

T.A. Bielby J.

Heard: April 2 and 7-9, 2014.
Judgment: May 15, 2014.
(95 paras.)
Applicant, Self-represented.
A. Nayyar, agent for Glenn Cook, Counsel for the Respondent.

1     T.A. BIELBY J.:-- The Applicant and Respondent herein are husband and wife and married each other, in India, on February 18, 2011. The parties separated in May 2012, the month after the applicant withdrew his sponsorship of his wife to become a resident of Canada. The respondent learned of the cancellation only after she arrived in Canada, on May 13, 2012.
2     The applicant was born in Canada on September 25, 1980, and has resided in Canada all of his life. He has always lived with his mother and brother, in his mother's home, and continues to do so.
3     The respondent was born in India, on August 1, 1985, and lived there all of her life until she came to Canada in May, 2012.
4     The applicant commenced these proceedings in order to obtain a divorce. The respondent, in her answer, seeks various heads of relief, including spousal support.
5     There are no children of the marriage.
6     The applicant now asks the court to order that all the gifts of gold jewelry that he gave the respondent be returned. He also seeks damages for the monies he and his family expended on account of the wedding, which he says, amounts to $28,000.00.
7     It is the position of the applicant that the marriage was a fraud and that the respondent only married him in order to immigrate to Canada.
8     The respondent agrees the marriage was a fraud but argues that the applicant only agreed to marry her in order to access the respondent's family's money through wedding gifts and a share of her mother's estate.
9     The parties initially met online and thereafter the applicant's mother made contact with the respondent's family, to open the discussions in an effort to negotiate an arranged marriage.
10     On February 6, 2011 the applicant and his mother arrived in India and by February 10th the parties were engaged. The applicant and his family were given a number of engagement gifts which included gold jewellery, clothes and cash.
11     Shortly after the engagement, the applicant's mother provided to the respondent and her family a list of relatives who should also be presented with gifts by the respondent.
12     The applicant and his mother remained in India and the wedding arrangements were quickly completed. The parties were married on February 18, 2011, with over 200 guests in attendance. The wedding again required the respondent to provide gifts to the applicant and his family.
13     The parties thereafter lived together in India for approximately 30 days, sharing a bedroom and a bed. However the marriage was never consummated. The applicant said he tried to be intimate but that the respondent wanted no part of it and if the applicant attempted to be intimate, the respondent would grab and squeeze his genitals, causing him great pain.
14     The respondent denied this allegation and testified that on the first two nights they were together no intimacy was attempted. Over the following three nights sexual intimacy was attempted but the applicant could not complete the deed. She testified that no further attempts were made.
15     On or about February 20, 2011, the respondent and applicant attended a jewellery store to exchange a ring and bracelet given to the applicant by the respondent. The applicant was not satisfied with the jewellery he had received and wanted to pick out items more to his liking. This represented more expense to the respondent and her family.
16     The applicant and his mother left India on March 3, 2011, and returned to Canada. Thereafter the parties commenced an application to the Canadian government to allow the respondent to immigrate to Canada. The process took a very long time and it was not until the spring of 2012, that a visa was issued, as discussed below.
17     While residing in different countries, the parties communicated with each other, whether by phone or the internet, on an almost daily basis. The respondent testified that she was happy and looking forward to her life in Canada as the wife of the applicant. She believed the applicant felt the same way.
18     The respondent's mother passed away on February 9, 2012 and the applicant and his mother travelled to India to pay their respects and remained in India for a few weeks thereafter. During this time the parties again shared a bedroom but did not consummate the marriage.
19     For their first anniversary the applicant gave the respondent, a gold pendant set.
20     The applicant and his mother returned to Canada on March 1, 2012. On their return to Canada, the applicant's mother brought with her all of the respondent's gold jewellery. It was suggested to the respondent that the applicant's mother should take all of the jewellery in Canada, to ensure its safe keeping. It was also suggested that the respondent would have an easier time getting through Canadian Customs if she was not carrying a quantity of gold jewellery.
21     On April 6, 2012, the applicant contacted the Canada Border Agency and cancelled his immigration sponsorship of the respondent. The respondent's admission to Canada was dependent on this sponsorship.
22     The applicant testified that on April 12, 2012, he called the respondent and told her he would be seeking a divorce.
23     The applicant testified that the respondent has been unfaithful to him. He alleges he saw photographs of the respondent with other men, which suggested some inappropriate familiarity.
24     The applicant also submits that he also wanted the divorce because the respondent refused to be sexually intimate with him and would hurt him physically if he tried to initiate any such intimacy.
25     The respondent denies this and states that the applicant learned, while in India the second time, that the respondent was not going to inherit anything from her mother's estate. She testified that the respondent and his mother were present when discussions were held concerning the respondent's mother's estate and will. The will states that the cost of the wedding represented the respondent's share of the estate.
26     The respondent suggests that the applicant decided to divorce her when he learned there would be no more gifts or money available. However, this suggestion is no more than speculation.
27     Where there is a conflict in the evidence on any point as between the parties, I accept the evidence of the respondent over that of the applicant. On virtually every question he was asked, the applicant asked that the question be repeated. A few times he even asked that the question be restated a third time. It appeared to me that the applicant was buying the time he needed in his own mind, to determine the intent and purpose behind the question and then fabricate an answer. Many of his answers ended with the phrase, "trust me".
28     Too often the applicant said that he couldn't remember, in regards to details surrounding what happened in 2011 and 2012. He thought this was a long time ago. I do not find 2011 and 2012 so long ago as to explain the applicant's significant lack of recall. He testified that he really loved the respondent and that he was heartbroken over the break-up of his marriage. If that were true one would expect the events to be more memorable to him.
29     Further the applicant displayed very little emotion when discussing the break-down of his marriage.
30     I do not accept the applicant's stated reasons for ending the marriage. The respondent was to immigrate to Canada to live with him as his wife. She was prepared to leave behind her family and her career and leave India for the very first time. She would be completely dependent on the applicant. Given these circumstances, if the applicant cared for the respondent as much as he said he did, I would think he would have given the marriage a chance.
31     The applicant's mother was called as a witness by the respondent's counsel. When asked certain questions concerning the applicant, she too had a difficult time recalling details.
32     The respondent, on the other hand, had a very good recall of the facts and circumstances in issue and rarely indicated she could not remember. She answered the questions in a straightforward manner and without any significant hesitation. Further, during points of her testimony the respondent became emotional particularly when describing how she was held in detention and had very little contact with anyone. She was in a strange country with almost no support of any kind.
33     I find that the applicant did not advise the respondent of the cancellation of the sponsorship. Nor did he call her on April 12, 2012, and tell her he was seeking a divorce.
34     I accept the evidence of the respondent that she did not know of the cancelled sponsorship until she had arrived in Canada on May 13, 2012 and was told of the cancellation by an Immigration Officer.
35     Further, I accept the respondent's evidence that she was not, in any way, unfaithful to the applicant. I accept that from the date of marriage to the date she arrived in Canada, it was the wish of the respondent to live with the applicant, as his wife, in Canada.
36     In regards to the issuance of the visa, the respondent received her visa from the Canadian Government on May 8, 2012, and upon receipt immediately placed a telephone call to the applicant's home.
37     The respondent testified that throughout the spring of 2012, she was having a difficult time talking directly to the applicant. If she called the applicant's land phone the call was answered by the applicant's mother who told the respondent the applicant was very ill and could not talk. If the respondent called the applicant's cell phone, the applicant would not pick up.
38     The respondent was repeatedly told by her mother-in-law that everything was fine and that the respondent should fly to Canada as soon as she can. There were numerous and long telephone conversations between the respondent and the applicant's mother as shown by the phone records included in Exhibit 2.
39     Accordingly, when the respondent called the applicant's home after she had been issued her visa, she spoke to the applicant's mother who told the respondent to purchase her plane ticket and get to Canada as soon as possible.
40     The applicant's mother even told the respondent what gifts to buy for the applicant's relatives, presumably to be given to these relatives by the respondent on her arrival in Canada.
41     On the 11th of May, 2012, the respondent, with the help of her brother, acquired the gifts and started packing. She had two suitcases, one for her personal belongings and one full of gifts. As it turned out, she was only allowed one piece of checked luggage on her flight to Canada and she had to leave behind the suitcase with the gifts.
42     The applicant's mother called the respondent twice to inquire as to the status of her packing and arrangements for travel. While the respondent was starting to think it odd that the applicant was not talking to her, she continued to rely on his mother and her positive comments about the future of the respondent's marriage to the applicant.
43     On the same day, the respondent's sister told the respondent that she had received a call from the Canadian Embassy advising there may be a problem with the respondent's documents. The respondent attempted to contact the Embassy by telephone, more than once, to inquire as to the problems but either talked to someone who knew nothing about the case or was required to leave a voice message.
44     At midnight on May 12, 2012, the respondent spoke to the applicant's mom by telephone for an extended period of time. Her mother-in-law told her there was no problem that she knew of and there must be some mistake. The respondent was again told to fly to Canada as soon as possible.
45     The respondent booked her plane ticket on the 12th and flew to Canada on May 13, 2012, landing at the Lester B. Pearson International Airport. Upon landing the respondent was directed to Immigration where she detained and questioned. She was kept in detention for over one week.
46     I accept that members of the respondent's family advised the applicant's mother and thereby indirectly, the applicant, of the flight particulars yet no one from the applicant's family attended to meet the respondent at the airport.
47     The respondent testified that she was told by the Immigration Officer that the applicant had cancelled his sponsorship the previous month and testified that this was the first time she learned of the cancellation.
48     While in detention, the respondent was served with the divorce application.
49     At Exhibit 2, tab 16, are the notes of the Immigration Officer who interviewed the respondent.
50     These notes and some of the opinions expressed therein are hearsay. However they were filed by the respondent and relied upon by the applicant.
51     In that report there are a series of question and answers. The respondent was told that the officer had spoken to her husband and was told that he did not know the respondent was coming to Canada that day. The respondent would not believe the officer.
52     A review of the questions and answers suggest that the respondent may have known of the cancelled visa. However, in her testimony, the respondent stated she was only told there was a problem with her documents. I accept the evidence of the respondent that she was not told specifically that her visa was cancelled and that prior to leaving for Canada, the respondent made reasonable efforts to contact the Canadian Embassy, following up the phone message left with her sister.
53     The officer's notes indicate that when he spoke to the applicant initially, he was told that the applicant was starting divorce proceedings on the grounds of physical, emotional and sexual cruelty. Later the applicant called back and said that he wanted to apologize for his comments and that he would like to make the marriage work and would come to the airport. The applicant called back again and reneged on what he had said and told the officer that he had not talked to the respondent in two months and described the marriage as, "one of convenience" and that no one in his family knew the respondent was travelling to Canada that day.
54     On cross-examination the applicant admitted to these series of calls but could not remember many details concerning the contents of the calls.
55     The respondent was eventually released on an Immigration bond and has lived with a cousin and his family, who reside in the Toronto area. She is fully dependent on them for money and necessities as she is not allowed to work. Her status in this country is uncertain.
56     When the respondent was introduced to the applicant she had recently completed her Master's Degree and was lecturing at a university in India. She is the oldest of three children and, at the time, all resided with their widowed, now deceased, mother.
57     The respondent testified that the applicant asked her to quit her job as they were going to be married and she would be moving to Canada. Thereafter the respondent continued to reside in her mother's house and was completely financially dependent on her mother and family while she waited for her Canadian visa.
58     At the time of his marriage, the applicant only worked part time. He testified that he was registered with employment agencies and he would be called when temporary work was available. The applicant testified that most of his job assignments are as a labourer although he does have a college education. While he may have had full time work in 2005, it would seem for the most part, full time work has eluded him.
59     The applicant testified that he was always seeking employment. He did not, however, have any documents to corroborate that claim. He testified that any records he had with respect to job applications were routinely deleted from his computer.
60     At the end of 2005, the applicant, with his mother as a co-signer, bought a new Hummer motor vehicle at a total cost of over $54,000.00. The vehicle was financed over a 3 year period of time and required payments of $1,271 per month. While the applicant may have made a couple of payments he testified that it was his mother who carried the cost of the vehicle including loan payments and insurance.
61     In the spring of 2012 the applicant signed over his interest in the Hummer stating he wanted to gift the vehicle to his mother, for all she had done for him. He has since retained a trustee in bankruptcy and has filed a consumer proposal under the Bankruptcy and Insolvency Act. He is required to make payments of $400.00 per month pursuant to the proposal.
62     I accept the evidence of the respondent that when the families first met, the applicant told them he had a good job in human resources and that he had a vehicle and a home. I accept that the respondent's family, before agreeing to the marriage, would have wanted to ensure the applicant could properly provide for the respondent. Had he told the truth, and while it is only speculation, I doubt a marriage agreement would have been reached.
63     The applicant in 2009 had earnings of $3,705.00 and employment insurance earnings of $8,688.00. In 2010 he had earnings of $6,079.00. In the applicant's financial statement, sworn December 21, 2012, the applicant stated that his income for "last year" was $8,275.00. In 2012 the applicant declared earnings of $1,061.00. For 2013, the respondent will declare earnings of about $2,500.00. His 2013 tax return has yet to be completed and filed.
64     The applicant submits that he has done all he can do to better himself and earn a greater income and that he survives on the generosity of his mother.
65     The respondent, in response, argued that the applicant is employed "under the table" and is paid in cash. She attributes to him a lifestyle well beyond his reported means.
66     Alternatively she submits that the applicant is intentionally under-employed.
67     At tab 16 of exhibit 2, are internet generated income surveys in regards to the wages of people employed as data analysts or in the human resources field. It is submitted that an annual salary of $45,000.00 is within the range suggested by such surveys.
68     It was also argued that the applicant testified that in 2005 he might have been earning $15.00 per hour. Such an hourly payment, adjusted for inflation would suggest an annual salary of $35,000.00.
69     I find that the applicant has not proven that he has taken reasonable steps to find full time employment. He has no disabilities and is a college graduate. I find that the applicant is, in fact, intentionally under-employed and will impute an income to him of $35,000.00 per year. I consider this amount to be conservative in estimate.
70     In regards to the argument that the applicant is employed "under the table" and being paid in cash, counsel for the respondent argues that the applicant's mother does not have the income necessary to carry their house and to pay all the expenses including the cost of operating the Hummer motor vehicle.
71     The evidence, however, falls short of establishing that the applicant is contributing any significant monies to the household or that he has employment beyond that what he claims.
72     The respondent cannot return to India without financial assistance. She has no money and no one to support her in India. Her brother is a student. Both her parents are deceased. She testified that jobs are very difficult to find and the job she left is not available to her. She stated she was lucky to get it in the first place. There is no social safety net in India; no welfare system or universal health care.
73     The respondent testified that she would need to acquire a PhD. in order to find employment in India and that such an endeavour would take 5 years. She testified that if she returned to India, she would need $20,000.00 in order to live and re-educate herself, in order to find employment.
74     The respondent suggested that if she could stay in Canada things would be better. She could qualify for social assistance and would benefit from our system of universal health care. She testified that she would still need to return to college and update her skills.
75     I am cognizant of section 15.2 of the Divorce Act R.S.C. 1985, c. 3 and the factors to consider in regards to spousal support and the objectives of spousal support.
76     One of the factors to be considered is the length of the marriage. In this case the marriage was only 14 months in length and the parties only lived together for, at best, 6 weeks. The length of the marriage would not favour an order for spousal support.
77     However the following two objectives of a spousal support order are relevant and are found in section 15.2(6) of the Divorce Act which states:

·       An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should: 

·       a) 
Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; 
·       b) 
Relieve any economic hardship of the spouses arising from the breakdown of the marriage; 
78     Given the facts of this case it is hard to imagine a greater economic disadvantage as the one facing the respondent. Clearly it has arisen from the breakdown of the marriage.
79     The respondent gave up everything to marry the applicant. She has nothing, and is left in such a predicament, as a result of the marriage breakdown.
80     Support is required to relieve the respondent's economic hardship resulting from the breakdown of the marriage, notwithstanding the brevity of the marriage.
81     The respondent arrived in Canada not knowing her husband had withdrawn his sponsorship which would have bound the applicant to financially support the respondent for a specific length of time.
82     I find that the applicant has an obligation to support the respondent. However before I turn to the issues of quantum and duration I will deal with the issues regarding the gifts and the claim for damages.
83     The applicant seeks the return of the gold that he gave to the respondent. The fact is the respondent and her family gave much more in the way of gifts to the applicant and his family, at the insistence of the applicant's mother. At one point the applicant testified that he would give back the gold he received, in exchange for the gifts he gave. He later testified that he had sold all the gold jewellery he received from the respondent.
84     The applicant seeks compensation for his costs related to the wedding which he estimated were $28,000.00. He did not provide any evidence to support the value of the claim.
85     In any event, such damages are not compensable when a marriage breaks down. Such causes of action have been long repealed. The gifts were just that, gifts and are not recoverable. Counsel for the respondent in her argument advised the Court that her client was not seeking the return of any of the jewellery or other gifts or wedding costs of any kind, the total cost of which exceeded $36,000.00. The respondent limited her claim to that of spousal support.
86     Turning now to the issue of the quantum of support, the respondent is seeking periodic support as well as lump sum support.
87     The Spousal Support Advisory Guidelines, in this case, suggest a range of monthly support of between $44.00 and $58.00 using the imputed income for the applicant of $35,000.00. An award of support at this level would be of very little assistance to the respondent. The Guidelines however as just that, guidelines and while I am to have regard to them, they are not binding.
88     The Guidelines recognize that in exceptional circumstances they are not applicable and the circumstances of this case are exceptional.
89     Further the applicant's expenses are not his responsibility but rather are paid by his mother. He lives in her house and drives, what he argues, is her motor vehicle. Accordingly his expenses are minimized, providing more income to pay periodic support.
90     Commencing May 1, 2014, and for a period of 3 years, I order the applicant to pay spousal support to the respondent in the amount of $350.00 per month.
91     Further I order the applicant to pay to the respondent a lump sum support award of $10,000.00, to provide immediate financial assistance and to help the respondent to take the steps necessary, whether here or in India, to become self-sufficient. I consider this award to be compensatory in nature.
92     On an imputed income of $35,000.00 and given the applicant's minimal expenses the applicant has the means to pay this support and certainly the respondent has established her need.
93     In reaching this decision I have had regard to the decision of Price J. in Singh v. Singh, 2013 ONSC 6476.
94     On the issue of costs I will accept written submissions of no more than 3 pages in length to be delivered within 21 days of the release of this judgment.
95     A support deduction order is to issue.


Friday, May 23, 2014


The temporary foreign worker program requires some minor tweak to ensure that there is no abuse and that the type of workers coming to Canada are truly required by the economy and that they remain tied to their employers for the  purposes and time that they were brought into the country, ant that it acts as a path to immigration for some but not all foreign workers. The program does not require a suspension of major overhaul.   If the federal government is truly concerned about competition against Canadians, it should stop or reduce granting open Work Permits in the International Experience Class that allow unemployed youth in other countries to apply for any jobs in Canada. That is different from the regular program where the employee remains tied to one employer for the duration of the permit. Here Is a good opinion piece from the National Post:

Wednesday, May 14, 2014


Federal Court rules that even if applicant was short just a few months from 1095 days, Citizenship Judge had the right to apply the physical presence test.

Donohue v. Canada (Minister of Citizenship and Immigration)

Erin Christine Donohue, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 443

2014 FC 394

Docket: T-1824-13

 Federal Court
Toronto, Ontario

Manson J.

Heard: April 14, 2014.
Judgment: April 28, 2014.

(34 paras.)


1     MANSON J.:-- This is an appeal of the decision of Floyd C. Babcock, a Citizenship Judge with the Citizenship Commission, Immigration Canada [the Judge]. The Judge denied the Applicant's application for Canadian citizenship by concluding that she did not meet the residency requirement as defined in 5(1)(c) of the Citizenship Act, RSC, 1985, c. C-29 [the Act]. As a preliminary issue, this matter should have proceeded as an appeal pursuant to subsection 14(5) of the Act. I hereby convert the proceeding into an appeal.


·       I. 


2     The issues in the present application are as follows:


·       A. 

Did the Judge err by applying the physical presence test? 

·       B. 

Was the Judge's application of the facts to the physical presence test reasonable? 

·       C. 

Did the Judge breach the duty of procedural fairness? 


·       II. 


3     The Applicant is a citizen of the United States. In 2001, she entered Canada, and became a permanent resident on January 22, 2008. On February 28, 2010, the Applicant applied for Canadian citizenship. She submitted a Residence Questionnaire on April 14, 2011.

4     On October 7, 2013, the Applicant appeared with counsel for a one-hour hearing before the Judge.

5     The Judge evaluated whether the Applicant met the residency requirement in 5(1)(c) of the Act in accordance with the test from (Re) Pourghasemi, [1993] F.C.J. No. 232 (TD) [Pourghasemi], which relies in a strict count of days. He determined that the Applicant failed to meet the requirement from Pourghasemi that she be physically present in Canada for at least 1095 days out of the four years immediately preceding her application for citizenship.

6     In coming to this conclusion, the Judge noted that the Applicant declared 156 worth days of absences from Canada in her citizenship application, but 205 on her Residence Questionnaire. Likewise, he found that the Applicant was physically present in Canada for 958 days according to her citizenship application, but 909 days according to her Residence Questionnaire.

7     The Judge also concluded that he was unable to calculate the number of days of the Applicant's presence in Canada because her History of Entries to Canada [ICES Report] conflicts with information provided by the Applicant. In particular, he noted that the Applicant's ICES Report lists 49 exits from and entries into Canada, while her Residence Questionnaire lists 44. Further, only 19 of those listed on the ICES Report were verified against the Applicant's Residence Questionnaire.

8     The Judge noted that the Applicant's history with the Ontario Ministry of Health and other documents submitted are passive indicators of residence in Canada.

9     The Judge found that the Applicant had the burden to prove her physical presence in Canada via consistent and reliable evidence, but did not do so (Atwani v. Canada (Minister of Citizenship and Immigration), 2011 FC 1353 at paras 12, 18).

10     The relevant statutory provisions under consideration are attached as Annex A.


·       III. 

Standard of Review

11     The first issue involves a question that has been the subject of much debate and uncertainty in the jurisprudence.

12     In Gavriluta v. Canada (Minister of Citizenship and Immigration), 2013 FC 705 at para 27, Justice Elizabeth Heneghan stated that the appropriate standard of review is reasonableness. Her rationale was based on Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 at para 14 [Lam], where Chief Justice Lutfy, as he then was, stated that a citizenship judge has discretion to choose one of three legal tests to assess the residency requirement. Given this discretion, a citizenship judge's decision to select one of these tests should be reviewed on the standard of reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, at para 53 [Dunsmuir]).

13     However, this issue involves the selection of an appropriate legal test to determine whether the requirements of 5(1)(c) of the Act are met. As this is a question of law of central importance to the legal system, I believe that the appropriate standard of review is correctness (Dunsmuir, above, at para 60), as been held in several cases (Ghosh v. Canada (Minister of Citizenship and Immigration), 2013 FC 282 at para 18; Martinez-Caro v. Canada (Minister of Citizenship and Immigration), 2011 FC 460 at para 52 [Martinez-Caro]; El Ocla v. Canada (Minister of Citizenship and Immigration), 2011 FC 533 at paras 17-18).

14     The second issue, as a question of mixed fact and law, is reviewable on the standard of reasonableness. The third question is one of procedural fairness and is reviewable on the standard of correctness (Canada (Minister of Citizenship and Immigration) v. Takla, 2009 FC 1120).


·       IV. 


·       A. 

Did the Judge err by Applying the Physical Presence test?

15     The Applicant argues that the Judge ought to have conducted a qualitative assessment of the evidence submitted which showed the quality of her ties to Canada. The Applicant suggests that such an assessment would allow her to meet the residency requirement, despite not satisfying the physical presence test.

16     The Applicant submitted over 300 pages of documents with her Residence Questionnaire to demonstrate her attachment to Canada. Other than a blanket statement that he considered the evidence, there is no indication that the Judge undertook a qualitative assessment.

17     The Applicant notes that the documents submitted show a detailed and continuous history of employment, residence, taxes, and auto and health insurance in Canada. Furthermore, they show evidence of her establishment via documentation relating to her husband, child and various community initiatives with which she is involved. The Respondent notes that this constitutes overwhelming evidence that she would meet the residency requirement if a qualitative assessment were conducted.

18     The selection of the appropriate test to establish the residency requirement in 5(1)(c) of the Act is the subject of much debate, as three distinct tests have emerged from the jurisprudence of the Federal Court.

19     The tests originate from Pourghasemi, Re Papadogiorgakis [1978] 2 F.C. 208 [Papadogiorgakis], and Koo (Re), [1993] 1 F.C. 286 [Koo]. The Pourghasemi test is the most restrictive: it requires a quantitative assessment of the number of days the applicant has physically spent in Canada in order to determine whether they have met the residency requirement in 5(1)(c) of the Act. In contrast, the tests from Papadogiorgakis and Koo make an additional qualitative assessment. They ask whether the applicant, while not meeting the physical presence requirement as articulated in Pourghasemi, can nonetheless meet the residency requirement based on the quality of their attachment to Canada. The tests from Papadogiorgakis ("centralized mode of living") and Koo ("substantial connection") both take different approaches to undertaking this qualitative assessment, but fundamentally ask the same question.

20     The availability of the differing tests has endured because section 16 of the Act limits citizenship appeals to the Federal Court. As no appeal lies with the Federal Court of Appeal, there has been no unifying authority to guide trial decisions on this issue. Owing to this and the absence of legislated guidance by Parliament, various decisions by the Federal Court have taken different roads in determining which test or tests should be used by a citizenship judge in assessing the residency requirement in 5(1)(c) of the Act.

21     The first approach is the one advanced by the Applicant on the basis of the precedent in Lam, above: a citizenship judge may apply any of the three tests described above.

22     A second approach was first articulated in Chen v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1229, and adopted in the Martinez-Caro decision. In Martinez-Caro, Justice Rennie concluded that principles of statutory interpretation dictate that the residency requirement in 5(1)(c) of the Act must be assessed using the strict physical presence test from Pourghasemi.

23     The third is a hybrid approach. Justice James O'Reilly in Canada (Minister of Citizenship and Immigration) v. Nandre, 2003 FCT 650 at para 12, held that if the physical presence test from Pourghasemi is not met, one of the qualitative tests should be considered if an applicant has submitted evidence that would allow such an assessment. Justice O'Reilly later clarified that the Koo test should be the qualitative test used in this hybrid approach (Dedaj v. Canada (Minister of Citizenship and Immigration), 2010 FC 777 at para 7).

24     I find the reasoning by Justice Rennie, at paras 29-34 of Martinez-Caro, compelling:


·       29 On a plain and ordinary reading of the statute, as a whole, Parliament has expressly defined the degree or extent of latitude or flexibility to be granted to putative citizens. Residence speaks of presence, not absence. In my view, the qualitative tests do not adequately take into account either the literal meaning of the section nor the requirement that the statute be read as a whole. The qualitative approach also leaves unanswered how or under what principle of statutory interpretation the Court imports into otherwise precise language greater absences or periods of non-residency greater than those already expressly defined by Parliament. There is, in sum, no principle of interpretation that would support the extension of periods of absences beyond the one year expressly provided by Parliament. Absent an issue of constitutionality the language of Parliament prevails and which a court, having reached a conclusion as to its interpretation, must apply. 


·       30 In construing the statute, the fundamental question, therefore, is, why did Parliament prescribe at least three years of residency in the four years preceding the application? The use of the words at least, in the Act indicates that 1,095 days is the minimum number of days a given citizenship applicant must accumulate. Parliament provided to would-be citizens the flexibility to accumulate 1,095 days over the course of four years, or 1,460 days. Accumulation by its ordinary meaning, imports a quantitative analysis. A test of accumulation is, quite separate and distinct from tests of citizenship based on intention or where one centers ones life. Intention cannot be accumulated as the statute dictates nor does the concept of "centralizing ones mode of life" fit well with the quantitative elements of the words at least. 


·       31 Subsection 5 (1.1) has seldom been addressed in considering the definition of residency. It provides: 


·       5 (1.1) Any day during which an applicant for citizenship resided with the applicant's spouse who at the time was a Canadian citizen and was employed outside of Canada in or with the Canadian armed forces or the federal public administration or the public service of a province, otherwise than as a locally engaged person, shall be treated as equivalent to one day of residence in Canada for the purposes of paragraph (1)(c) and subsection 11(1). 

* * *


·       5 (1.1) Est assimilé à un jour de résidence au Canada pour l'application de l'alinéa (1)c) et du paragraphe 11(1) tout jour pendant lequel l'auteur d'une demande de citoyenneté a résidé avec son époux ou conjoint de fait alors que celui-ci était citoyen et était, sans avoir été engagé sur place, au service, à l'étranger, des forces armées canadiennes ou de l'administration publique fédérale ou de celle d'une province. 


·       The plain reading of subsection 5 (1.1) reinforces the conclusion arising from a reading of the statute as a whole, namely that periods spent outside of Canada, by non-citizens, would not, save in the limited circumstances described, count. Parliament thus expressly contemplated the period of time during which putative citizens could be out of the country and in what circumstances. In my opinion, based on the plain reading of the text the requirement of three-year residence within a four-year period has been expressly designed to allow for one year's physical absence during the four-year period. 


·       32 Again, returning to the first principle of interpretation, residency signifies presence, not absence, in both official languages. The French version is equally authoritative as the English, and points to the same conclusion as to Parliament's intent. 


·       33 This interpretation is not new. It has a long antecedence which can be traced back to the decision of Pratte J. in Blaha, Nadon J. in Chen, and Muldoon J. in Re Pourghasemi. It finds its most recent expression in the decision of this Court in Sarvarian v. Canada (Minister of Citizenship and Immigration), 2010 FC 1117, of Justice Mosley in Hao and Justice Gauthier in Alinaghizadeh. 


·       34 To conclude on the question of statutory interpretation, I note that Parliament conferred on the Citizenship Court judge the discretion to make recommendations to the Minister of Citizenship that citizenship be granted in cases of exceptional circumstances. The discretion to relieve from any undue hardship or unfairness, such as when an individual was kept out of Canada for reasons beyond their control were thus contemplated and addressed in subsection 5(4), and to read the same discretion into the very definition of residency, is to import, indirectly, that which Parliament has already addressed directly in subsection 5(4). It also, in effect, renders that discretionary power nugatory. Why else would it be necessary to make a recommendation to the Minister if, by the selection of a more lenient standard, citizenship can be conferred? 

25     While I have sympathy for the frustration of the Applicant in the inconsistent approaches taken both at the Citizenship Commission level and in this Court, I find that based on the plain and ordinary reading of the statute, the strict physical presence test is the principled approach to take.


·       B. 

Was the Judge's Application of the facts to the Physical Presence test Reasonable?

26     The Applicant argues that the Judge erred in finding that there was an inconsistency between the number of days that the Applicant stated that she was absent from Canada in her citizenship application (156) versus her Residence Questionnaire (205). Likewise, the Applicant takes issue with the Judge's finding that the number of days she was physically present in Canada was inconsistent between these two sources.

27     The Applicant argues that this distinction is explainable, because the method of calculating days for purposes of 5(1)(c) of the Act differs depending on whether the days accumulated before or after the Applicant became a permanent resident while residing in Canada, as per 5(1)(i) and 5(1)(ii) of the Act. The Applicant notes that she listed 205 absences in total on her citizenship application, but 98 were in the period before she became a permanent resident. As per 5(1)(i), each day absent from Canada which occurred prior to her becoming a permanent residence is equal to one half-day for the purposes of fulfilling the residency requirement in 5(1)(c). Accordingly, these 98 days become 49 days for the purpose of the Act. Adding these to the remaining 107 days of absence, which occurred after she received permanent residency, the total is 156 days. This is consistent with the absences stated on her Residence Questionnaire.

28     The Applicant also states that she noted 207 absences on her questionnaire, not 205 as the Judge suggests, as she remembered subsequent to filing her application that she was absent from Canada for an additional two days before she became a permanent resident. She acknowledges that, for the purposes of the Act, there is a discrepancy of one day between her citizenship application and her Residence Questionnaire.

29     I agree with the Applicant that the discrepancy between the dates cited by the Judge is explainable. However, in light of the fact that neither the absences cited on the Applicant's citizenship application or her Residence Questionnaire add up to 1095 days of physical presence in Canada, this explanation is irrelevant to the Citizenship Judge's conclusion. As such, I do not find the Judge's decision to be unreasonable.


·       C. 

Did the Judge Breach the Duty of Procedural Fairness?

30     The Applicant argues two aspects of procedural fairness. First, she argues she had legitimate expectations as to which residency test would be used. Second, she claims that she was not given an opportunity to respond to a negative credibility finding made against her. The procedural fairness grounds are determined without a reference to the source of the complaints (IE the residence questionnaire and the line in the judge's decision regarding credibility).

31     With regard to legitimate expectations, it is understandable that, when given a hearing despite not meeting the physical presence requirement, the Applicant might presume that a qualitative analysis would be undertaken by the Judge.

32     However, I do not feel that any conduct or the representations made in the Residence Questionnaire could reasonably be described as "...clear, unambiguous and unqualified" as per CUPE at para 131. At best, it could be said that a reasonable inference might be made that a qualitative assessment would be undertaken. This is not sufficient to establish a breach of procedural fairness.

33     Likewise, I do not believe that the Applicant's argument regarding the Judge's alleged credibility findings has merit. While it is not clear whether the Judge is referring to sufficiency of evidence or credibility in the statement brought into issue by the Applicant, on balance I believe his statement effectively indicates his finding that the Applicant has not met the physical presence requirement. It is not an indictment of her credibility which requires a response. In any event, given that she acknowledges she has not satisfied the physical presence test, ambiguity around the credibility of her evidence is immaterial.

34     I find that there was no breach of procedural fairness.




·       1. 

This appeal is dismissed.