T-391-83
Secretary of State of Canada (Appellant)
v.
Rafic Antoine Abi-Zeid (Respondent)
Trial Division, Dubé J.—Hawkesbury, Ontario,
September 13; Ottawa, September 15, 1983.
Citizenship — Residency requirements — Respondent leav
ing 25 days after entry into Canada as permanent resident to
work in country of origin until date of application for citizen
ship, four years later — Respondent's family residing in
Canada at all material times — Application for citizenship
granted: mode of living centralized in Canada despite absences
— Whether respondent required to accumulate three years'
residence in Canada pursuant to s. 5(1)(b) of Act — Establish
ment of residence not subject to specific length of time —
Principles in In re Citizenship Act and in re Papadogiorgakis,
[1978] 2 F.C. 208 (T.D.) applicable — Continued presence of
respondent's family in Canada proof of respondent's intentions
— Appeal dismissed — Citizenship Act, S.C. 1974-75-76, c.
108, s. 5(1)(b), rep. and sub. S.C. 1976-77, c. 52, s. 128
(Item 5).
The respondent was legally admitted to Canada as a perma
nent resident on September 5, 1978. Unable to find work, he
returned to Lebanon 25 days after his entry into Canada and
continued to work there until the date of his application for
Canadian citizenship, i.e. September 9, 1982. Upon his arrival
in Canada, the respondent settled with his family in Ontario.
He returned to Canada for a total of 277 days during the
material period. He keeps a bank account in Canada, contrib
utes to the Ontario Hospital Insurance Plan and pays income
tax in Canada. The Citizenship Judge granted the application
for citizenship on the ground that the respondent's mode of
living had not ceased to be�ce \ ntralized in Canada despite his
frequent absences abroad, thus - applying the decision in In re
Citizenship Act and in re Papadogirgakis, [1978] 2 F.C. 208
(T.D.). The appellant argues that the Citizenship Judge's deci
sion is wrong, in that the respondent had not âccumulated three
years' residence in Canada as required by paragraph 5(1)(b) of
the Act, before beginning his absences, and that the case is
different from the Papadogiorgakis case where the appellant
had lived for more than three years in Canada before leaving
for the United States of America to study.
Held, the appeal should be dismissed. The principles enumer
ated by the Federal Court in previous decisions are applicable
here: while it is not necessary to be physically and continuously
present in Canada throughout the period specified in paragraph
5(1)(b), a person must, before his absence, have established
residence in Canada and must, in some way, continue it while
abroad. However, neither the Act nor judicial decisions have
specified the length of time necessary to establish residence. It
would be illogical for the respondent to lose his residency by
leaving Canada to work when Papadogiorgakis did not lose his
by going to the United States to study. The respondent effec
tively removed his home from Lebanon to Canada. Although
the initial period he spent in Canada was much shorter than
that of Papadogiorgakis, the continued presence of the respond
ent's family in Canada constitutes a lively and living testimony
of his intentions.
CASE JUDICIALLY CONSIDERED
APPLIED:
In re Citizenship Act and in re Papadogiorgakis, [1978]
2 F.C. 208 (T.D.).
COUNSEL:
Yves Perrier for appellant.
No one on behalf of respondent.
Michel Z. Charbonneau, amicus curiae.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Michel Z. Charbonneau, Hawkesbury
(Ontario), amicus curiae.
RESPONDENT ON HIS OWN BEHALF:
Rafic Antoine Abi-Zeid.
The following is the English version of the
reasons for judgment rendered by
DuBÉ J.: The Secretary of State of Canada is
appealing from a decision of a Citizenship Judge,
rendered at Ottawa on January 13, 1983, allowing
the application of Rafic Antoine Abi-Zeid for
citizenship, on the ground that the Citizenship
Judge erred in fact and in law in approving the
application before the respondent had accumulat
ed three years' residence in Canada, contrary to
the provisions of paragraph 5(1)(b) of the Citizen
ship Act [S.C. 1974-75-76, c. 108, rep. and sub.
S.C. 1976-77, c. 52, s. 128 (Item 5)]. The para
graph reads as follows:
5. (1) The Minister shall grant citizenship to any person who,
not being a citizen, makes application therefor and
(b) has been lawfully admitted to Canada for permanent
residence, has not ceased since such admission to be a
permanent resident pursuant to section 24 of the Immigra
tion Act, 1976, and has, within the four years immediately
preceding the date of his application, accumulated at least
three years of residence in Canada calculated in the follow
ing manner:
(i) for every day during which he was resident in Canada
before his lawful admission to Canada for permanent
residence he shall be deemed to have accumulated one-half
of a day of residence, and
(ii) for every day during which he was resident in Canada
after his lawful admission to Canada for permanent resi
dence he shall be deemed to have accumulated one day of
residence;
It is common ground that the respondent was
legally admitted to Canada as a permanent resi
dent on September 5, 1978. However, on Septem-
ber 30, 1978, twenty-five days after his entry to
Canada, he returned to Lebanon and continued
working there until the date he applied for citizen
ship, namely September 9, 1982. The Citizenship
Judge nonetheless allowed his application for the
following reason, which appears in the antepenulti-
mate paragraph of his decision:
I am aware of the applicant's prolonged and frequent
absences abroad, however, it is my considered opinion that he
established a pied à terre [sic] here in Canada to which he
returned as often as possible to be with his family. His central
ized mode of living here in Canada did not cease to be
centralized despite his absences abroad. I feel that this case
compares favourably with the decision rendered by the then
Associate Chief Justice Thurlow in the matter of A. Papadogi-
arkis [sic].
The respondent arrived in Canada accompanied
by his wife and three children; he settled with his
family in an apartment in Hawkesbury, Ontario;
and his family has subsequently always resided in
that town. As he had no work in Canada, the
respondent had to return to his job at the Beirut
Airport. He returned to Canada as often as he
could, for a total of 277 days during this period.
He keeps a bank account in Canada, at the Royal
Bank in Hawkesbury. He contributes to the
Ontario Hospital Insurance Plan (oHIP). He pays
income tax in Canada. He still owns a house in
Lebanon, which he is trying to sell.
' During the hearing of this appeal the wife of the respondent
(as the latter was unable to leave Beirut Airport due to the
conflict at present raging in that city) told the amicus curiae
that her husband had just received an offer of employment at
Mirabel Airport, provided he obtains Canadian citizenship.
The fundamental principles which emerge from
decisions in this area 2 are that it is not necessary
to be physically and continuously present in
Canada throughout the required period. However,
a person who is physically absent must first, before
his absence, have established residence in Canada,
and must then in some way continue his residence
in Canada while he is absent abroad.
The fundamental argument of counsel for the
appellant, if I understood correctly, is that the
respondent did not first establish legal residence in
Canada before beginning his absences. That was
not the case, he said, with the appellant Antonios
E. Papadogiorgakis (in the well-known case cited
above), who had established a "mode of living" in
Nova Scotia before pursuing his studies at the
University of Massachusetts in the United States.
The student Papadogiorgakis entered Canada on
September 5, 1970 with a student visa and was
admitted as a permanent resident on May 13,
1974. During this time he attended Acadia Uni
versity in Nova Scotia and resided successively at
the University, in lodgings and with friends. He
therefore lived in Canada for a longer time than
the respondent before leaving for his studies.
In the case at bar, it is true that the respondent
resided in Canada for only twenty-five days before
returning to work in Beirut. However, neither the
Citizenship Act nor judicial decisions have speci
fied the length of time necessary to establish resi
dence. The respondent was legally admitted to
Canada as a resident and settled in Hawkesbury
with his family. He therefore effectively removed
his new residence, his home, from Beirut to
Hawkesbury. The continued presence of his wife
and children there constituted a lively and living
testimony of his intentions.
I really do not see by what logic the student
Papadogiorgakis did not lose his residence by
going to the United States to study, but the
respondent lost his by going to Lebanon to work.
2 In re Citizenship Act and in re Papadogiorgakis, [1978] 2
F.C. 208 [T.D.]; In re Citizenship Act and in re Mitha
[Federal Court], June 1, 1979, T-4832-78; In re Citizenship
Act and in re Thompson [Federal Court], June 8, 1979,
T-548-79.
The principles stated by Thurlow A.C.J. [as he
then was] are the same in both cases. I cite the
learned Judge at page 214 of his judgment:
A person with an established home of his own in which he
lives does not cease to be resident there when he leaves it for a
temporary purpose whether on business or vacation or even to
pursue a course of study. The fact of his family remaining there
while he is away may lend support for the conclusion that he
has not ceased to reside there. The conclusion may be reached,
as well, even though the absence may be more or less lengthy.
It is also enhanced if he returns there frequently when the
opportunity to do so arises.
Although the initial period spent in Canada was
much shorter in the respondent's case than in that
of the student Papadogiorgakis, it remains a fact
that the respondent's roots in Canada are much
deeper: he had his own family waiting for him
here.
In the circumstances, there is no reason to
reverse the decision of the Citizenship Judge, and
this appeal is dismissed.
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.