A-1002-85
Sylvia Josephine Lindo (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: LINDO V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION)
Court of Appeal, Urie, Mahoney and Hugessen
JJ.—Toronto, December 8, 1987.
Immigration — Appeal from Immigration Appeal Board's
dismissal of appeal from refusal of application to sponsor
daughter's infant children for landing — Children's mother
dead — Father never married or lived with mother — "Lawful
father" in definition of "orphan" in Regulations excluding
man who had no marital or common-law relationship with
mother and never subject to legal declaration of paternity —
Whether children legitimate under Ontario law irrelevant —
Appeal allowed.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 52(c)(1).
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 79(3).
Immigration Regulations, 1978, SOR/78-172, s. 2(1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Gill v. Minister of Employment and Immigration, [1979]
2 F.C. 782 (C.A.).
DISTINGUISHED
Tse v. Minister of Employment and Immigration, [1983]
2 F.C. 308 (C.A.).
COUNSEL:
Jacqueline S. Greatbatch for applicant.
Urszula Kaczmarczyk for respondent.
SOLICITORS:
Community & Legal Aid Services Pro
gramme, Osgoode Hall Law School, North
York, Ontario, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
HUGESSEN J.: The appellant sought to sponsor
her two minor grandchildren, issue of her daughter
who is dead. The evidence established that the
father of the children had never married, or cohab
ited with, their mother. While his whereabouts
were unknown, there was no evidence that he had
died. The only question before the Board was
whether the children were "orphans", as that term
was then defined in subsection 2(1) of the Immi
gration Regulations, 1978 [SOR/78-172] (since
amended):
2.(1) ...
"orphan" means a person whose lawful father and mother are
both deceased;
The Board, in a lengthy digression, found that
the children were not illegitimate under the law of
Ontario. That finding was irrelevant. In the cir
cumstances, what the Board had to decide was
whether the children's father was their "lawful"
father under the Regulations. The word "lawful"
is not mere surplusage. It has a meaning. That
meaning is to be determined by federal law. The
case of Tse v. Minister of Employment and Immi
gration, [1983] 2 F.C. 308 (C.A.), relied on by
respondent is of no help since it turned on a
definition of "son" which specifically incorporated
provincial law. Such incorporation is notably
absent here. This Court has previously held that
the word "father" simpliciter includes a natural
father (Gill v. Minister of Employment and
Immigration, [1979] 2 F.C. 782 (C.A.)); as we
then implied, and now affirm, the corollary is that
the expression "lawful father" excludes a man who
has had no marital or even common-law relation
ship with the mother and has never been the
subject of a legal declaration of paternity.
The appeal will be allowed. Pursuant to sub-
paragraph 52(c)(î) of the Federal Court Act,' we
propose to give the decision the Board should have
' R.S.C. 1970 (2nd Supp.), c. 10.
given, namely, that the refusal of the children's
sponsorship application for landing was wrong in
law and that the appeal to the Board is allowed.
Since both the appellant and the Minister are
represented by counsel present on pronouncement
of this judgment in open court, the requirements of
subsection 79(3) of the Immigration Act, 1976
[S.C. 1976-77, c. 52], as to notification have been
fulfilled.
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.