Date: 20050615
Docket: IMM-1737-04
Citation: 2005 FC 855
Ottawa, Ontario, June 15, 2005
Present: The Honourable Madam Justice Heneghan
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
CHAN CAM VONG
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Minister of Citizenship and Immigration (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Immigration Appeal Division (the "IAD"), dated February 6, 2004. In its decision, the IAD allowed the appeal of Mr. Chan Cam Vong (the "Respondent") from the refusal of a visa officer to approve the sponsored applications for landing made by his step-mother, Ms. Cuc Anh Hoang, and her two children.
BACKGROUND
[2] The Respondent, a citizen of Vietnam, entered Canada in May 1999 as a sponsored spouse and now holds permanent residence in this country.
[3] In 2001, Ms. Hoang, a citizen of Vietnam, applied to the Canadian High Commission in Singapore for permanent residence, under the sponsorship of the Respondent. Ms. Hoang is the widow of the Respondent's father, whom she married in 1989 following the death of the Respondent's mother. Ms. Hoang and the Respondent's father are the parents of a son, born in 1991, and a daughter, born in 1994. Following the death of his father in 1994, the Respondent returned from Hong Kong, where he had lived for six years in a refugee camp in an attempt to re-settle abroad. Upon his return to Vietnam in 1996, the Respondent resided with his step-mother until his marriage and subsequent move to Canada in 1999. Ms. Hoang recorded the Respondent on the family register while he lived in her home.
[4] The visa officer refused Ms. Hoang's sponsored application for permanent residence on the grounds that she was not a member of the family class as described in the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations").
[5] Upon appeal, the IAD determined that the absence of a definition of the word "mother" in the Regulations indicated Parliament's intention that the term be accorded a broad and liberal interpretation, in order to accommodate the changing dynamics of the modern family. It concluded that a step-mother could, in appropriate circumstances, fall within the definition of "mother". According to its reasons, the IAD considered that the presence of mutual benefits and dependencies could constitute such "appropriate circumstances".
[6] The IAD conducted a purposive analysis of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"). It acknowledged that the word "mother" had been defined in the Immigration Regulations, 1978, SOR/78-172, enacted pursuant to the former Immigration Act, R.S.C. 1985, c. I-2, as amended. It concluded that the lack of a definition under the legislative and regulatory schemes now in place is attributable to two reasons. First, the IAD found that the traditional view of a mother has changed dramatically in recent years as a result of innovations in reproductive technologies. Second, it acknowledged that Canadian society is now composed of varied family relationships that have become more commonplace and accepted by Canadian society.
SUBMISSIONS
[7] The Applicant argues that the issue raised in this application is a question of statutory interpretation, specifically the meaning to be given to "mother", as used in paragraph 117(1)(c) of the Regulations. The word "mother" is not defined and appears only in the English version of the Regulations; the words "ses parents" are used in the French version.
[8] According to the Applicant, the applicable standard of review here is that of correctness, relying in this regard on the recent decision of the Federal Court of Appeal in Medovarski v. Canada (Minister of Citizenship and Immigration) (2004), 35 Imm. L.R. (3d) 161 (F.C.A.), leave to appeal to S.C.C. granted, [2004] S.C.C.A. No. 208 (Q.L.).
[9] The Applicant submits that the absence of a definition of "mother" in the current Regulations marks a change from the former legislation and regulatory scheme, that is the Immigration Act, supra and the Immigration Regulations, supra. He argues that this demonstrates an intention by the Governor in Council to determine membership in the family class according to the criteria now in effect and that the lack of a definition of "mother" is not an invitation to the IAD to substitute its own opinion.
[10] The Respondent also focuses on the lack of a definition of "mother" in the current Regulations and argues that this silence is not an oversight but an indication that the Governor in Council intended that the word "mother" be given a broad interpretation. He submits that this is a reasonable, purposive approach that is consistent with the prevailing modern recognition and acceptance of family relationships that encompass non-traditional components. He refers to the specific reference in the Regulations to common law marriage and conjugal partnerships that are now recognized for the purposes of inclusion in the "family class". He also refers to the recognition of same-sex marriages in parts of Canada.
[11] The Respondent submits that an interpretation of "mother" that extends beyond a blood relationship or the legal relationship created by adoption is consistent with current social criteria in Canada for defining parental relationships and relies in this regard on Chartier v. Chartier, [1999] 1 S.C.R. 242.
DISCUSSION
[12] This application for judicial review squarely raises the issue of statutory interpretation. According to the decision of the Supreme Court of Canada in Re Rizzo v. Rizzo Shoes, [1998] 1 S.C.R. 27, a purposive approach is to be taken in the matter of statutory interpretation.
[13] The purpose of the Act is to regularize the admission of persons into Canada who, otherwise, have no right of admission. In this regard, I refer to Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 where the Supreme Court of Canada said the following at pages 733-734:
Thus Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act. Section 5 of the Act provides that no person other than a citizen, permanent resident, Convention refugee or Indian registered under the Indian Act has a right to come to or remain in Canada. The qualified nature of the rights of non-citizens to enter and remain in Canada is made clear by s. 4 of the Act. ...
[14] The Act sets out, in section 3, certain legislative objectives including, at paragraph 3(1)(d) the goal "that families are reunited in Canada".
[15] The sole issue arising in this application for judicial review is whether the language of paragraph 117(1)(c) of the Regulations includes a step-mother, for the purposes of admission into Canada as a member of the family class.
[16] "Family class" is defined in subsection 12(1) of the Act as follows:
| 12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident. |
|
12. (1) La sélection des étrangers de la catégorie « _regroupement familial_ » se fait en fonction de la relation qu'ils ont avec un citoyen canadien ou un résident permanent, à titre d'époux, de conjoint de fait, d'enfant ou de père ou mère ou à titre d'autre membre de la famille prévu par règlement. |
[17] Subsection 117(1) describes members of that class. For present purposes, only paragraph 117(1)(c) is relevant and provides as follows:
| 117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is ... (c) the sponsor's mother or father; |
|
117. (1) Appartiennent à la catégorie du regroupement familial du fait de la relation qu'ils ont avec le répondant les étrangers suivants : ... c) ses parents; |
[18] The words "mother" and "father" are not defined in either English or French in the Regulations. The word "parents" is defined only in French at section 2 of the Regulations as meaning "les ascendants au premier degré de l'intéressé".
[19] On its face, the French definition of "parents" suggests that paragraph 117(1)(c) of the Regulations addresses the admission, as members of the family class, of those persons who stand in a parental relationship by virtue of bloodline. This interpretation is supported by reference to Gérard Cornu, Vocabulaire Juridique, 8e édition (Paris: Presses Universitaires de France, 2000) s.v. "ascendant" at page 74:
Auteur direct d'une personne (appelée descendant), soit au premier degré (père, mère) [...]
[20] The Respondent argues that the absence of a definition of "mother" or "father" from the current legislation indicates the intention of Parliament to give these words a broad interpretation, in keeping with subjective social criteria used to define the parental relationship, as found in domestic Canadian law dealing with family relationships. In this regard, he relies on Chartier, supra where the Court said the following at page 260:
39. Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship. The Divorce Act makes no mention of formal expressions of intent. The focus on voluntariness and intention in Carignan was dependent on the common law approach discussed earlier. It was wrong. The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child's relationship with the absent biological parent. ...
[21] On the other hand, the Applicant argues that if Parliament intended that a broad interpretation be given to the words "mother" and "father", some indication of that intention would appear in the statute or the Regulations or even, in the Regulatory Impact Analysis Statement ("RIAS"). In this regard, the Applicants note that the RIAS addresses only the introduction of common law spouses and conjugal partners as members of the family class. The RIAS says nothing about an expanded interpretation of parents.
[22] I agree that the introduction of common law spouses and conjugal partners, as members of the family class, marks a change in the description of "family" for the purpose of obtaining permanent residence in Canada. However, I am not persuaded that expansion of the class in respect of a spousal group necessarily supports expansion of the class for the purposes of parental relationships.
[23] I am not persuaded that "parents" should be limited only to birth parents, in view of the definition provided in the Regulations for "relative" which is defined in both official languages as follows:
| "relative" means a person who is related to another person by blood or adoption ( « membre de la parenté » ) |
|
« membre de la parenté » personne unie à l'intéressé par les liens du sang ou de L'adoption ("relative")
|
[24] On its face, the French definition of "parents" suggests that paragraph 117(1)(c) of the Regulations addresses the admission, as members of the family class, of those persons who stand in a parental relationship on the basis of bloodline. However, the definition of "relative" expands the interpretation of parental relationships to encompass adoption as well. The Act and the Regulations recognize as "parents" those persons with a direct blood relationship or those having an adoptive relationship.
[25] It is undisputed that in the present case, there is no blood relationship or adoption between the Respondent and his step-mother, the subject of the sponsorship application. It follows, in my opinion, that Ms. Hoang does not fall within the definition of "parents". I do not view the absence of an English definition of "mother" or "parents" as indicating that Parliament intended that step-parents be included in the family class.
[26] Whatever the reason for omitting a definition of the words "mother" or "parents", that is deliberate intention or inattention during the drafting process, the fact remains that the Regulations do not contain a definition of either of these words in the English language and an adequate definition is found in the French language. This Court is required to interpret the language before it, unless no reasonable interpretation can be found; see Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 at page 618 where the Court says that it is an established principle of interpretation that the French and English texts are deemed to be equally authoritative, and where there is discrepancy, it is the meaning which furthers the purpose of the legislation which must prevail.
[27] In the result, I conclude that the IAD erred in its interpretation of "mother" as used in paragraph 117(1)(c) of the Regulations and accordingly, this application for judicial review is allowed. The matter is remitted to a differently constituted panel of the IAD for redetermination.
[28] I observe that this may be an appropriate case for the Respondent to seek the exercise of Ministerial discretion, on humanitarian and compassionate grounds, pursuant to the Act.
[29] Counsel for the Applicant proposed the following questions for certification:
Are stepparents included in the family class and, in particular, does the word "mother" in paragraph 117(1)(c) of the Immigration and Refugee Protection Regulations include a stepmother?
Does the word "parent" in French include "stepparent"?
Counsel for the Respondent agreed with the submission of these questions for certification.
[30] I am satisfied that this application raises a novel point and that the proposed questions meet the requirements of subsection 74(d) of the Act for certification.
ORDER
The application for judicial review is allowed and the matter is remitted to a different panel of the IAD for redetermination. The following questions are certified:
Are stepparents included in the family class and, in particular, does the word "mother" in paragraph 117(1)(c) of the Immigration and Refugee Protection Regulations include a stepmother?
Does the word "parent" in French include "stepparent"?
"E. Heneghan"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1737-04
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
CHAN CAM VONG
DATE OF HEARING: January 24, 2005
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER AND
ORDER: Honourable Madam Justice Heneghan
DATED: June 15, 2005
APPEARANCES BY: Ann Margaret Oberst
DEPARTMENT OF JUSTICE 130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Applicant
Rose L. Legagneur
2428 Islington Avenue
Unit 214, Toronto
ON M9W 3X8 For the Respondent
SOLICITORS OF RECORD: John H. Sims, Q.C.
The Deputy Attorney General
of Canada
For the Applicant
Rose L. Legagneur
For the Respondent