A-102-82
Yuen Tse (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Urie J., Lalande and McQuaid
D.JJ.—Toronto, November 1, 1982; Ottawa,
January 7, 1983.
Immigration — Appeal from Immigration Appeal Board
decision to reject appellant's application to sponsor landing of
infant children of polygamous marriage on ground children
not members of family class under s. 2 of Immigration Act,
1976 — Children allegedly not eligible for sponsorship under
ss. 2 and 4 of Immigration Regulations, 1978 because not
considered legitimate if father domiciled in province of
Canada at times of births — Evidence marriage valid in Hong
Kong where took place and that children recognized as legiti
mate under laws of Hong Kong and under common law —
Appeal allowed — Ontario, Province where sponsorship
application made, presumed domicile of father — Status of
legitimacy determined in accordance with The Children's Law
Reform Act, 1977 which abolished concept of illegitimacy —
Interpretation of Regulations to facilitate reunion in Canada
of Canadian citizens with close relatives abroad — Error of
law in Board's failure to consider The Children's Law Reform
Act, 1977 — Discussion by Urie J. of validity of polygamous
marriage and legitimacy of children of such marriage in light
of English C.A. decision Baindail (otherwise Lawson) v. Bain-
dail, approved by B.C.S.C. in Sara case — "A" province in
Immigration Regulations, 1978, s. 2 meaning "any" province
— Provincial laws including conflict of laws rules, among
which is common law rule that validity of marriage dependent
on domicile of husband at time of marriage — Demonstrated
B.C. ("a" province) law regards children of valid marriage
legitimate — Appellant may be presumed domiciled in B.C.
for purposes of Regulations — Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 2, 3(c) — Immigration Regulations, 1978,
SOR/78-172, ss. 2(1)(a), 4(b) — The Children's Law Reform
Act, 1977, R.S.O. 1980, c. 68, s. I.
Conflict of laws — Whether polygamous marriage in coun
try where legal if parties there domiciled recognized by
Canadian courts — Reference to Baindail (otherwise Lawson)
v. Baindail, /19461 P. 122 (C.A.) where Lord Greene M.R.
noting status depends on law of domicile held Hindu marriage
valid and bar to subsequent marriage in England — Baindail
approved in Ontario and B.C. cases — Polygamous marriage
in question considered valid in Ontario — Whether children of
marriage considered legitimate — Status as to legitimacy
governed by law of domicile of father — Laws of province
include conflict of laws rules — Appellant domiciled in Hong
Kong at time of marriage — Children considered legitimate in
B.C. — By definitions of "son" and "daughter" in s. 2,
Immigration Regulations, 1978, for purpose of determining
whether children legitimate, appellant deemed domiciled in
province of Canada — Means any province — Immigration
Appeal Board failing to consider implications of The Chil-
dren's Law Reform Act, 1977, law under which status of
legitimacy to be determined for Immigration Act, 1976, pur
poses — The Children's Law Reform Act, 1977, R.S.O. 1980,
c. 68, s. I — Immigration Act, 1976, S.C. 1976-77, c. 52
Immigration Regulations, 1978, SOR/78-172, s. 2.
Appellant, presently domiciled in Ontario, married two
women while in Hong Kong. The children of both marriages
were recognized as legitimate under the laws of Hong Kong,
and also under the common law because the status of legitima
cy is governed by the law of the domicile of the father. The
appellant, a Canadian citizen, applied in 1979 to sponsor the
application for landing of three infant children of the second
marriage born in Hong Kong. The Immigration Appeal Board
rejected the application on the ground that the children were
not members of the family class. The definition of member of
the family class in subsection 2(1) of the Immigration Act,
1976 refers to a person described in the regulations whose
application for landing may be sponsored by a Canadian citi
zen. Paragraph 4(b) of the Immigration Regulations, 1978,
provides that a Canadian citizen may sponsor his infant unmar
ried son or daughter. "Son" is defined in paragraph 2(I)(a) of
the Regulations as a male issue of a marriage who would be
considered legitimate if his father had been domiciled in a
province of Canada at the time of his birth. The respondent
argues that children of a polygamous marriage would not be
recognized as legitimate in Ontario had their father been
domiciled there at the respective times of their births. The
critical issue is the status of legitimacy, a provincial concern
which therefore depends upon the determination of the province
of domicile of the father on the respective dates of birth of the
children, since the father did not actually reside in Canada
until 1971.
Held, the appeal should be allowed.
Per McQuaid D.J. (Urie J. and Lalande D.J. concurring):
The Regulations do not explain in which province a father is
presumed to be domiciled when in fact he was not domiciled in
Canada when the children were born. Logic decrees that the
presumed province of domicile should be that in which the
father was in fact domiciled at the time he applied to sponsor
the admissions of the children to Canada, namely, Ontario. It
must also be borne in mind that the Regulations are to be
interpreted, recognizing the need to facilitate the reunion in
Canada of Canadian citizens with their close relatives from
abroad. Thus, it was incumbent upon the Immigration Appeal
Board to apply the law of the Province of Ontario as of the date
of the sponsorship application to the legitimacy issue, namely
The Children's Law Reform Act, 1977, which effectively elimi
nated the concept of illegitimacy. The Board apparently did not
consider that legislation and so erred.
Per Urie J.: A threshold issue is whether the appellant's
polygamous marriage would have been considered valid in
Canada. The answer appears to be yes given the English Court
of Appeal decision in Baindail (otherwise Lawson) v. Baindail,
holding that a valid Hindu marriage in India, not having been
dissolved, was a bar to a subsequent marriage in England. This
decision was referred to with approval by the British Columbia
Supreme Court in Sara v. Sara and in the High Court of
Ontario in Re Hassan and Hassan. The next question is
whether the children would have been considered by Canadian
law to be legitimate at the dates of their respective births. In Re
Immigration Act and Bains, the British Columbia Supreme
Court found that the unmarried infant children of the applicant
who were born of a secondary wife were legitimate because the
applicant had not lost his domicile of origin, India, where the
marriage to the secondary wife was valid for all purposes
including legitimacy of offspring. This represents the state of
the law in Canada. The definitions of "son" and "daughter" in
section 2 of the Immigration Regulations, 1978, deem the
appellant to have been domiciled in a province, meaning any
province of Canada at the times of the births of his children.
Provincial laws include conflict of laws rules, including the
common law rule that the validity of a marriage is dependent
on the law of the domicile of the husband at the time of the
marriage. The appellant's domicile at the time of the polyga
mous marriage was Hong Kong where the marriage was recog
nized as valid and the children were legitimate. As a result of
the conflict of laws rules, in at least one province (British
Columbia) the law would have regarded the children of the
valid marriage as legitimate. The appellant may be presumed to
have been domiciled in British Columbia (a province of
Canada) for the purpose of section 2 of the Regulations and
thus the children in question possess the status of legitimacy.
CASES JUDICIALLY CONSIDERED
APPLIED:
Baindail (otherwise Lawson) v. Baindail, [1946] P. 122
(C.A.); Her Majesty the Queen et al. v. Leong Ba Chai,
[1954] S.C.R. 10; Re Immigration Act and Bains (1954),
109 C.C.C. 315 (B.C.S.C.).
REFERRED TO:
Sara v. Sara (1962), 31 D.L.R. (2d) 566 (B.C.S.C.); Re
Hassan and Hassan (1976), 12 O.R. (2d) 432 (H.C.).
COUNSEL:
M. M. Green, Q.C. for appellant.
M. Thomas for respondent.
SOLICITORS:
Green & Spiegel, Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the opportunity of reading a
draft of the reasons for judgment of Mr. Justice
McQuaid with which I am in substantial agree
ment and, as well, with his proposed disposition of
the appeal. However, I wish to add a few observa
tions of my own arising from a somewhat different
approach to the problem.
A threshold issue, it seems to me, is whether or
not polygamous marriages entered into in coun
tries where such marriages are permitted if the
parties were domiciled there, would be recognized
by the courts of this country. The answer to the
question appears to be yes. The first positive
expression of this opinion appears in the English
Court of Appeal decision in Baindail (otherwise
Lawson) v. Baindail.' The facts in that case are
that the respondent husband while domiciled in
India married a Hindu woman according to Hindu
rites and that marriage was still subsisting when
he went through a ceremony of marriage in Eng-
land with an English woman. She petitioned for a
decree of nullity of her marriage after she had
become aware of the Hindu marriage. It was
argued for purposes of the claim that the marriage
was a nullity, that the existence of the Hindu
marriage had to be disregarded by the English
courts with the result that, on the date of the
English marriage, the "husband" was an unmar
ried man and was not, therefore, debarred by any
existing union from marrying the petitioner. At
pages 127 and 128 of the report Lord Greene
M.R. had this to say:
The proposition I think would not be disputed that in general
the status of a person depends on his personal law, which is the
law of his domicile. By the law of the respondent's domicile at
the time of his Hindu marriage he unquestionably acquired the
status of a married man according to Hindu law; he was
married for all the purposes of Hindu law, and he had imposed
upon him the rights and obligations which that status confers
under that law. That status he never lost. Nothing that hap
pened afterwards, save the dissolution of the marriage, if it be
possible according to Hindu law, could deprive him of the
' [1946] P. 122 (C.A.).
status of a married man which he acquired under Hindu law at
the time of his Hindu marriage; he was therefore a married
man on May 5, 1939, according to Hindu law.
Will that status be recognized in this country? English law
certainly does not refuse all recognition of that status. For
many purposes, quite obviously, the status would have to be
recognized. If a Hindu domiciled in India died intestate in
England leaving personal property in this country, the succes
sion to the personal property would be governed by the law of
his domicile; and in applying the law of his domicile effect
would have to be given to the rights of any children of the
Hindu marriage and of his Hindu widow, and for that purpose
the courts of this country would be bound to recognize the
validity of a Hindu marriage so far as it bears on the title to
personal property left by an intestate here; one can think of
other cases.
Lord Maugham L.C., who delivered the leading opinion of
the Committee of Privileges in Lord Sinha's case (Journals of
the House of Lords, 1939, vol. 171, p. 350) said this: "On the
other hand it cannot, I think, be doubted now, notwithstanding
some earlier dicta by eminent judges, that a Hindu marriage
between persons domiciled in India is recognized in our courts,
that issue are regarded as legitimate and that such issue can
succeed to property, with the possible exception to which I will
refer later"; that was the well-known exception of real estate.
He went on to hold that the Hindu marriage, as
a valid one, was a bar to any subsequent marriage
in England not having been dissolved to the Eng-
lish form of marriage.
The judgment in that case has been referred to
with approval in the British Columbia Supreme
Court in Sara v. Sara' and in the High Court of
Ontario in Re Hassan and Hassan.' I think that it
can be safely said that the polygamous marriage in
this case would have been considered valid in
Ontario at the time of the births of the children of
the appellant in Hong Kong.
The next question is would the children have
been considered by the law of this country to be
legitimate at the dates of their respective births?
In Her Majesty the Queen et al. y Leong Ba Chai 4
Taschereau J. for the Court held that ". .. if it be
established that the respondent has been legiti
mated in China, while the father had his domicile
2 (1962), 31 D.L.R. (2d) 566 (B.C.S.C.).
' (1976), 12 O.R. (2d) 432 (H.C.).
4 [1954] S.C.R. 10, at p. 12.
in China, the law of Canada will recognize this
child as legitimate . .. because the personal status
of the respondent as to his legitimacy, is governed
by the law of the domicile of his father."
In the British Columbia Supreme Court in 1954
in the case of Re Immigration Act and Bains, 5 the
question was whether mandamus should issue to
compel reconsideration of an application for
admission to Canada of two unmarried infant
children of the applicant who were born of a
secondary wife of the applicant. The immigration
authorities took the position that children were not
admissible because they were not legitimate in
Canadian law, the applicant having acquired
Canadian domicile at the time of their birth. Clyne
J. found that the applicant had not lost his domi
cile of origin, India, where the marriage to the
secondary wife was valid and consequently his
children were legitimate. At page 318 he had this
to say:
... having regard to the law of his religion and the law of the
Punjab. Dedar Singh was entitled to take a second wife and
that according to such law the second marriage is valid in India
for all purposes including legitimacy of offspring, succession
and inheritance. As O'Halloran J.A. pointed out in the Leong
Ba Chai case at p. 767 D.L.R., pp. 137-8 Can. C.C.: "The
Courts of this Province will recognize as lawful wives, women
who have the legal status of secondary wives in a country where
polygamy is not illegal. By consequence we must also recognize
as legitimate the children of such women when such children
are recognized as legitimate under the law of the father's
domicile."
This view of the law is consistent with what was
said by Lord Greene in the passage quoted, supra,
from the Baindail case that a Hindu marriage
between persons domiciled in India being recog
nized as valid by the English courts, the children
of the marriage are regarded as legitimate. Fur
thermore, in my opinion, it represents the state of
the law in Canada as to the recognition of the
legitimacy of children born of polygamous mar
riages in the domicile of the parties at the date of
the marriages and, in particular, at the times of
the births of each of the children in this case in
1959, 1960 and 1963.
5 (1954), 109 C.C.C. 315 (B.C.S.C.).
By the definitions of "son" and "daughter" in
section 2 of the Immigration Regulations, 1978
[SOR/78-172], the appellant, for the purpose of
determining whether his children possess the status
of legitimacy, is deemed to have been domiciled in
a province of Canada at the times of their births.
That, it appears to me to mean any province. The
laws of that province must include, of course, its
conflict of laws rules. Among those rules is the
common law rule that the validity of the marriage
is dependent on the law of the domicile of the
husband at the time of the marriage. The appel
lant's domicile, at the time of the marriage, which
was polygamous, was Hong Kong. It is not disput
ed that the evidence discloses that at the time of
that marriage it was recognized as valid by the law
of the domicile, Hong Kong, and that the children
of the valid marriage were legitimate according to
that law. As a result of the conflict of laws rules,
as I have shown, in at least one province (British
Columbia) and quite possibly in Ontario as well,
the law would have regarded the children of the
valid marriage as possessing the status of legitima
cy. Thus, the appellant being presumed as a result
of the definitions to have been domiciled in a
province of Canada (which can be British Colum-
bia for the purpose of applying the test imposed by
the definitions of "son" and "daughter" by section
2 of the Regulations), the children of his marriage
who were the subject of his sponsorship application
would possess the status of legitimacy.
For those reasons, as well as those given by
McQuaid D.J., I would dispose of the appeal in the
manner proposed by him.
* * *
The following are the reasons for judgment
rendered in English by
MCQUAID D.J.: This is an appeal from a deci
sion of the Immigration Appeal Board, dated
October 7, 1981, whereby the application of Yuen
Tse, the appellant herein, to sponsor for admission
into Canada three children, Tse Kwan Mai, Tse
Kwan Kit, and Tse Kwan Yin was denied. All
three are now residents of and domiciled in the
Colony of Hong Kong.
The facts generally are not in dispute. The
appellant Yuen Tse now resides, and is domiciled
in the Province of Ontario, where he lives with his
principal wife, or t'sai, by whom he has some nine
children and whom he had married in Hong Kong
according to the customs of the Tsing Law of
China, as it then applied to that Colony. Yuen Tse
had, at that time, a Hong Kong domicile.
While still having a Hong Kong domicile, he
subsequently married Ching Fung Ho, who is the
mother of the appellant's three children, Tse Kwan
Mai, Tse Kwan Kit, and Tse Kwan Yin, the
subjects of his application for sponsorship. The
evidence before the Court satisfies us that during
the period of the respective births of these chil
dren, in Hoag Kong, 1959-1963, the Tsing Law of
China, which was then in force in Hong Kong,
recognized as valid this marriage between Yuen
Tse and Ching Fung Ho, who by it, became his
secondary wife, of t'sip. That law also recognized
as legitimate the issue of that marriage, being the
three children here in question.
On October 7, 1971, the Marriage Reform
Ordinance of Hong Kong was enacted, which pro
vided that subsequent to its enactment:
No man may take a concubine and no woman may acquire the
status of a concubine, but this shall not affect in Hong Kong
the status or right of a concubine lawfully taken before October
7, 1971, or the status or rights of a child whether born before,
on, or after October 7, 1971, or of a concubine lawfully taken
before that date.
The effect of this Ordinance was to reaffirm the
status of Ching Fung Ho as being a legal wife of
Yuen Tse, and as well to reaffirm the status of
legitimacy of the three children issue of the mar
riage of Ching Fung Ho and Yuen Tse.
Yuen Tse came to Canada in 1971, and became
a Canadian citizen in 1979. On August 15, 1979,
he applied to sponsor the application for landing
into Canada of those children. This application
was rejected on the ground that they were not
members of the family class within the meaning of
the Immigration Regulations, 1978, and thus not
eligible for sponsorship by the appellant.
"Member of the family class" as defined by
subsection 2(1) of the Immigration Act, 1976
[S.C. 1976-77, c. 52] , means:
2. (1) ...
... a person described in the regulations as a person whose
application for landing may be sponsored by a Canadian
citizen or by a permanent resident; ,
Regulation 4(b) of the Immigration Regula
tions, 1978 is the relevant regulation and it pro
vides that:
4. Every Canadian citizen and every permanent resident
may, if he is residing in Canada and is at least eighteen years of
age, sponsor an application for landing made
(b) by his unmarried son or daughter under twenty-one years
of age;
"Son" as defined by paragraph 2(1)(a) of the
Regulations means:
2.(1)...
... with respect to any person, means a male who is
(a) the issue of a marriage of that person and who would
possess the status of legitimacy if his father had been domi
ciled in a province of Canada at the time of his birth,
The term "daughter" is similarly described.
The argument in support of the disqualification
is, basically, that these are children of a polyga
mous marriage and, as such, would not have been
recognized in the Province of Ontario as being
legitimate had the applicant, their father Yuen
Tse, been domiciled in that Province on the respec
tive dates of their birth.
The Regulations must be examined carefully to
determine the validity of this proposition.
Clearly, according to the Regulation, the status
of legitimacy is the critical issue. Since legitimacy
is of provincial, rather than federal, purview, such
status must be determined in accordance with the
law of the province of the domicile of the father.
Had the father, Yuen Tse, been domiciled in the
Province of Ontario on the date of the birth of a
given child, then the law of Ontario would be the
law to be applied. However, the father, Yuen Tse,
was not domiciled in the Province of Ontario on
that date. In which province of Canada he is
presumed by the Regulation to be domiciled is not
explained therein but it would seem logical that
the presumed province of domicile should be that
in which he was in fact domiciled at the time he
applied to sponsor the admissions of the children to
Canada, namely, Ontario.
The question which next presents itself for con
sideration is the manner in which the applicable
regulation is to be interpreted. Part I of the Act
prescribes "CANADIAN IMMIGRATION POLICY",
and section 3 thereof, under the heading "Objec-
tives", sets out the mind and the intent of Parlia
ment when it enacted this legislation:
3. It is hereby declared that Canadian immigration policy
and the rules and regulations made under this Act shall be
designed and administered in such a manner as to promote the
domestic and international interests of Canada recognizing the
need
(c) to facilitate the reunion in Canada of Canadian citizens
and permanent residents with their close relatives from
abroad.
While it is recognized that the Act not only
authorizes the enactment of regulations but, as
well, authorizes Ministerial rulings, there can be
little doubt but that such regulations and rulings
must be within the parameters of the objectives of
the legislation clearly set out by Parliament.
Since the critical issues as they apply to the
eligibility of a child for admission into Canada are
(a) the status of legitimacy; (b) the province of
domicile of the father; and (c) the date of birth of
the child, and since, further, the wording of the
definition of the term "son" (or "daughter" as the
case may be), in the Regulation leaves something
to be desired from the point of view of clarity and
precision, then it might not be inappropriate to
paraphrase the definition in the following manner:
"son", with respect to any person, means a male who is:
(a) the issue of a marriage of that person, —and—
(b) who who is possessed of the status of legitimacy according to
the law of the province in which the father was domi
ciled at the date of the birth of that child;
—or—
where the father was not, in fact, domiciled in a prov
ince of Canada on the date of the birth of that child who
would have possessed the status of legitimacy according
to the law of legitimacy according to the law of the
province in which the father now has his domicile, which
province, for these purposes, shall be considered to have
been his province of domicile on the date of the birth of
the child.
Such a paraphrasing does not alter the sub
stance of the definition as it appears in the Regula
tion, but merely makes it somewhat more
readable.
It is common ground that each of the three
children is issue of the marriage of the appellant
Yuen Tse. It is also common ground that under
the law of Hong Kong applicable at the dates of
their respective births, those children would, under
that law, be considered to be legitimate. It would
appear that under the common law they would
also be considered to be legitimate because the
status of legitimacy is governed by the law of the
domicile of the father. 6
Because the Immigration Act, 1976, in its Regu
lations, identifies the status of legitimacy as an
essential criterion, and since the question of
legitimacy is one of provincial, rather than federal,
concern, that status must be determined in accord
ance with the law of a province of Canada. While,
as above noted, the Regulation is not clear as to
the law of which province should apply, it would
appear logical that it be that in which the father is
domiciled at the time of the application and thus is
the province of domicile hypothetically attributed
to him by the Regulations as being his province of
domicile on the respective dates of the birth of
each child.
The appellant Yuen Tse initiated his application
for sponsorship on August 15, 1979. When the
Immigration Appeal Board considered his applica
tion, it was incumbent upon that Board to do so in
the light of the existing law of the Province of
Ontario as it touched upon the status of the
legitimacy.
The Children's Law Reform Act, 1977 [S.O.
1977, c. 41 (now R.S.O. 1980, c. 68)] came into
force in Ontario on March 31, 1978, somewhat
over a year prior to the date of the application, and
was the relevant law in effect in Ontario on the
date of the application.
Section 1 of that Act provides:
1.—(1) Subject to subsection (2), for all purposes of the law
of Ontario a person is the child of his or her natural parents
6 Vide Cheshire's Private International Law (9th ed. 1974),
pp. 448 to 450 and Her Majesty the Queen et al. v. Leong Ba
Chai, [1954] S.C.R. 10, at p. 12.
and his or her status as their child is independent of whether
the child is born within or outside marriage.
(2) Where an adoption order has been made, section 86 or 87
of the Child Welfare Act applies and the child is the child of
the adopting parents as if they were the natural parents.
(3) The parent and child relationships as determined under
subsections (1) and (2) shall be followed in the determination
of other kindred relationships flowing therefrom.
(4) Any distinction at common law between the status of
children born in wedlock and born out of wedlock is abolished
and the relationship of parent and child and kindred relation
ships flowing therefrom shall be determined for the purposes of
the common law in accordance with this section.
Hence it is clear that when the matter of the
appellant's application came before the Immigra
tion Appeal Board, the law of the Province of
Ontario, according to which the "status of
legitimacy" must be determined, had effectively
and for all purposes of the law, eliminated the
concept of illegitimacy, as well as the common law
distinction which had theretofore existed between
children born in, or out of, wedlock.
The end result of this legislation is that for all
purposes of the law of Ontario, every child is a
legitimate child, as of the date of its birth, and
consequently possessed of the "status of legitima
cy", regardless of whether it may be the issue of a
polygamous marriage, or been otherwise born out
of wedlock. Since the father was domiciled in
Ontario at the time the issue of legitimacy arose,
for the purposes of the Immigration Act, 1976, it
is the law of the Province of Ontario which, in this
instance, should be applied to determine that
status.
When the Immigration Appeal Board con
sidered the appellant's application, it had before it
evidence which clearly established that the chil
dren in question were, according to the law of their
place of birth, and present residence, considered to
be legitimate children for all purposes. What it
apparently failed to do, in its consideration, was to
consider the implications of The Children's Law
Reform Act, 1977, which was the law under which
the status of legitimacy was to be determined for
the purposes of the Immigration Act, 1976. Had it
done so it would have necessarily concluded that
each of such children, the subjects of the applica
tion, (a) was the issue of a marriage of the appel
lant; (b) possessed the status of legitimacy, as of
the date of birth of each, in the Colony of Hong
Kong, their present place of residence and domi
cile; and (c) possessed of the status of legitimacy,
as of the date of birth of each, in the Province of
Ontario, the place of residence and present domi
cile of their father, the appellant Yuen Tse, but as
well, the province of domicile attributed to the
appellant, as of such dates, by the Immigration
Act, 1976 and Regulations made thereunder.
I am of the opinion, therefore, that this appeal
should be allowed and the matter referred back to
the Immigration Appeal Board for reconsideration
in a manner not inconsistent with these reasons.
LALANDE D.J.: I concur.
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.