Digests

McNeil v. Canada (Secretary of State)

T-2745-92

Heneghan J.

15/9/00

19 pp.

Action for declaration plaintiff Canadian citizen--By virtue of birth in Ontario in 1935 plaintiff British subject--When Canadian Citizenship Act came into force in 1947 became Canadian citizen--In 1957 married American citizen, received "green card" permitting her to live, work in United States--Green card renewed on annual basis until 1968--In 1968 husband selected for foreign job posting at American Embassy in London, England--American government "policy" spouses of American civil servants posted abroad should be American citizens--Plaintiff attending at Federal Courthouse in New York City on June 11, 1968 to complete forms, answer questions in connection with application for citizenship--Upon leaving courthouse, plaintiff hospitalized--Following day second son born six weeks premature--On June 24, 1968 plaintiff attending formal citizenship ceremony, swearing oath of allegiance to United States of America, assuming American citizenship--Departed United States for London on August 7, 1968--Four years later moved back to United States--In 1976 plaintiff, husband divorced--In 1978 plaintiff, children moved back to Canada--Immigration lawyer advising her no longer Canadian citizen--Applied for permanent resident status--No record of landing being issued to plaintiff--Late in 1978 plaintiff took children to live with father in Montréal, moved back to United States where lived until 1983--In 1983 moved back to Canada where has lived continuously since--Canadian Citizenship Act, s. 15 providing Canadian citizen ceasing to be Canadian citizen when, outside of Canada by any voluntary and formal act other than marriage, acquiring nationality of country other than Canada--Whether plaintiff "by any voluntary act" acquired American citizenship--Plaintiff arguing operating under duress because of pressures of personal situation, including premature delivery of son, subsequent illness, hospitalization, awareness of husband's desire for foreign posting and own wish to support husband's ambitions, task of dismantling home in New York and preparing to move with two small children to foreign country--Not seeking any advice prior to taking oath of allegiance on June 24, 1968--Stott v. Merit Investment Corp. (1988), 63 O.R. (2d) 545 (C.A.) holding three facts must be established before finding of duress can be made: (1) pressure must amount to coercion of will; (2) pressure must be illegitimate; (3) party seeking relief must have taken steps to avoid act complained of--Pao On v Lau Yiu, [1979] 3 All ER 65 (P.C.) holding four factors must exist to support finding of coercion of will--Applying Pao On test: (1) plaintiff not raising any objections to request by husband's employer she become American citizen; (2) plaintiff had number of alternative courses available to her other than proceeding with application for American citizenship i.e. could have refused, sought advice, requested more time to deal with request to change citizenship, particularly having regard to advanced stage of pregnancy, advised husband she would join him later in London; (3) plaintiff sought no advice from anyone, although reasonable to expect her to have made inquiries concerning effect of assuming American citizenship on status as Canadian as not unsophisticated young person; (4) plaintiff could have sought advice as to status upon arrival in London since appropriate time frame in which to examine issue of duress from June 10 to late August 1968--Although economic duress recognized as form of duress, no evidence plaintiff would have been left without financial support if had decided to refuse request to assume American citizenship--Plaintiff not meeting test for "coercion of mind"--Plaintiff experiencing high degree of personal pressure at that time, but pressures of family life not characterized as illegitimate in sense of offending any law--Plaintiff took no steps within reasonable time frame to avoid consequences of assuming American citizenship--Therefore assumed American citizenship by voluntary act--Action dismissed--Canadian Citizenship Act, R.S.C. 1952, c. 33, s. 15.