C.A.C. 65/76
In re the Canadian Citizenship Act and in re
Klaus Bauer
Citizenship Appeal Court, Addy J.—Toronto,
April 27; Ottawa, May 17, 1976.
Citizenship—Appellant residing in Canada from 1960 to
1972—Working abroad thereafter, though maintaining home
and family in Canada—Whether appellant satisfying residence
requirements of s. 10(1)(b) of Canadian Citizenship Act,
R.S.C. 1970, c. C-19, ss. 2, 10(1)(b).
Appellant had resided in Canada from 1960 to 1972. From
1972 on, he was absent from Canada most of the time, having
been posted to various locations abroad, though he maintained
a home in Canada for his wife and family, and though he
returned to Canada on various occasions.
Held, the appeal is dismissed. Clearly, appellant was not
physically residing in Canada for anything like twelve of the
eighteen months immediately preceding his application, and the
question was whether section 10(1)(b) requires actual or "con-
structive" residence. The Canadian Citizenship Act, unlike the
Divorce Act, does not distinguish between ordinary and actual
residence. "Place of domicile", defined in section 2, was not
used in section 10(1)(b) and, since these words are specifically
defined, it must be assumed that that concept is not to be
included in section 10(1)(b), but that "resided" must have been
intended to have the same meaning as when used in the
definition of "place of domicile" in section 2 (where it means
actual physical residence). Parliament would not give one
meaning to "reside" in section 2 and a different and extended
meaning in section 10(1)(b) where the context in section
10(1)(b) does not necessarily so require. Section 10(1)(b)
requires actual residence.
CITIZENSHIP appeal.
COUNSEL:
K. Bauer for himself.
L. Evans, Q.C., amicus curiae.
SOLICITOR:
Deputy Attorney General of Canada, amicus
curiae.
The following are the reasons for judgment
rendered in English by
ADDY J.: The sole question in issue is whether
the appellant has satisfied the residence require
ments of section 10(1)(b) of the Canadian Citi
zenship Act. In all other respects he has been
found to have satisfied the requirements of the
Act.
By section 10(1)(b), it is required that the appli
cant satisfy the Citizenship Court that:
(b) he has resided in Canada for at least twelve of the
eighteen months immediately preceding the date of his
application;
The application for citizenship is dated the 7th
of May, 1975. The appellant who had been lawful
ly admitted to Canada as a landed immigrant in
August 1960 actually resided here until 1972.
From then on, however, he was absent from
Canada most of the time having been posted
abroad by his employer. During all of these
absences he was working for his Canadian employ
er and was maintaining a home in Canada where
his wife and family actually resided.
During 1973 he worked in Jamaica for most of
the year returning to Canada for a few days on
several occasions. During 1974 he worked in Ja-
maica, the Dominican Republic and Peru, return
ing to Canada five times for a few days each time.
During 1975, from the 1st of January until the
31st of March, he was working in Peru. Although
the appellant maintained a home in Canada during
these absences, he was not merely abroad as a
visitor but lived there and was employed there.
It is clear that the appellant was not physically
residing in Canada for anything like twelve of the
eighteen months immediately preceding the date
of his application for citizenship and the issue may
therefore be narrowed down to the question of
whether section 10(1)(b) requires actual residence
or whether its requirements can be satisfied by
something more general in the nature of what
might be termed constructive residence.
The Canadian Citizenship Act does not, as in
the case of the Divorce Act (refer section 5(1)(b)),
distinguish between a person who has been ordi
narily resident in a place and one who has actually
resided there. The Canadian Citizenship Act does
however define "place of domicile" in section 2 as
follows:
2. In this Act
"place of domicile" means the place in which a person has his
home or in which he resides or to which he returns as his
place of permanent abode and does not mean a place in
which he stays for a mere special or temporary purpose;
The term "place of domicile," as defined there
in, would therefore clearly apply to actual resi
dence and to the situation which the appellant
claims to be covered by the word "reside" in
section 10(1)(b). The words "place of domicile"
however were not used and, since they are specifi
cally defined in the Act, it must be assumed that it
was not the intention of the legislator to include
that concept in section 10(1)(b) but, on the con
trary, in using the word "resided" it must have
been intended that it have the same meaning as
when used in the definition of "place of domicile,"
for, in that definition, "resides" is obviously used
in the sense of actual physical residence. I cannot
conceive that Parliament would give one meaning
to "reside" in section 2, which is the interpretation
section, and a different and extended meaning to
that word in section 10(1)(b) where the context in
the latter section does not necessarily require such
an extended meaning to be attributed to the word.
I must therefore conclude that section 10(1)(b)
requires actual residence.
For the above reasons, the appeal is dismissed
and the finding of the Citizenship Court is
confirmed.
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.