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Overview of Spousal/Common Law Partner Sponsorship in Canada

1. Definition and Scope

The “Spouse or Common Law Partner in Canada Class” sponsorship is a unique category for partners already cohabiting in Canada. This class is distinct from family class sponsorships and follows its own set of rules as defined in the Immigration and Refugee Protection Regulations (IRPR, ss 123-29).

2. Eligibility Criteria

This sponsorship option is specifically for spouses or common law partners living together in Canada. It excludes:

  • Spouses or common law partners not cohabiting or outside Canada.
  • Conjugal partners.
  • Dependent children, except when accompanying the spousal applicant.
  • Certain out-of-status applicants.
  • Applicants deemed inadmissible.

3. Restrictions and Considerations

Applicants facing enforcement proceedings or removal orders, except those related to “lack of status”, generally cannot obtain permanent residence. Options for overcoming inadmissibility include requesting humanitarian and compassionate (H&C) discretion or a temporary resident permit. Notably, inside-Canada sponsorships don’t allow for appeal rights to the Immigration Appeal Division (IAD), suggesting the use of outside-Canada sponsorship for retaining appeal rights.

4. “Lack of Status” Definition

“Lack of status” refers to individuals who have:

  • Overstayed a visa or permit.
  • Worked or studied without authorization.
  • Entered Canada without proper documentation.

However, it doesn’t include inadmissibility due to:

  • Unauthorized re-entry post-removal.
  • Entering with fraudulent documents, unless used for misrepresentation.

5. Work Permit Eligibility

Applicants with valid status under this class may be eligible for a work permit while awaiting case finalization, as per the work permit pilot project terms.

Dependent Children Sponsorship Changes

1. Age Limit Adjustments

  • Pre-2002: Dependent child cut-off age was 19.
  • 2002-2014: Raised to under 22.
  • 2014 Amendment: Lowered to under 19, excluding over-19 full-time students.
  • 2017 Restoration: Reinstated to under 22, but without restoring status for over-22 students.

2. Objectives of Age Limit Changes

The aim is to support family reunification and benefit Canadian post-secondary institutions and economy by including older immigrant children.

3. Definition of a Dependent Child

A dependent child is defined as:

  • Under age 22 and unmarried.
  • Financially dependent on a parent since before age 22 and unable to self-support due to disability.

4. Controversies and Clarity in Definitions

The 2014 changes were contentious due to their restrictive nature. The subsequent modifications in 2017, while not fully reversing the previous changes, provided clearer criteria for qualifying as a dependent child.

5. Evidence of Dependency

Dependants over 22 with a disability must substantiate their financial dependency. Visa officers assess the degree of dependence, and disability alone doesn’t confirm dependency.

6. Age Lock-In for Dependent Children

The “lock-in” age is determined at the time of receiving the complete sponsorship application and fees by the Case Processing Centre (CPC). It is essential to submit a thorough and complete application to avoid any issues with age lock-in and potential family separation.

Overview of Sponsorship for Orphaned Relatives and Adopted Children in Canada

C. Sponsoring Specified Orphaned Relatives

1. Eligibility Criteria

Orphaned relatives like siblings (including half and step-siblings), nephews, nieces, and grandchildren can be sponsored if they:

  • Are orphaned.
  • Are unmarried and not in a common-law partnership.
  • Are under 18 years old (IRPR, s 117(1)(f)).

2. Sponsorship Procedures

The process is similar to that for adopted children under 18, requiring the orphaned relative to be unmarried and not in a common-law relationship. Visa officers must secure written consent from authorities in the child’s country and any legal guardians before removal.

Sponsors are advised to obtain legal guardianship of the child in their province of residence in Canada, ensuring legal rights and responsibilities towards the child.

D. Adopting Children

1. Family Class Provisions for Adoption

The regulations accommodate the adoption of children under and over 18 years old, provided they meet the dependent child definition.

Adoptions require genuine and informed consent from biological parents. For children under 18, adoptions must be in the child’s best interests, align with local and sponsor’s country laws, and meet specific criteria, including home studies and consent from competent authorities.

3. Severance from Biological Parents

Adoption severs the legal relationship with biological parents, meaning an adopted child cannot sponsor them in the future. However, affectionate relationships may still persist.

4. The Principle of the Child’s Best Interests

This principle, integral to the United Nations Convention on the Rights of the Child, dictates that a child’s well-being is paramount in all actions concerning them.

5. Sponsorship of Adopted Children Over 18

They must meet specific criteria, including establishing a genuine parent-child relationship before 18, and the adoption must not be primarily for immigration benefits.

6. Factors Determining a Genuine Relationship

Various factors are considered, like the motivations of adopting and biological parents, the authority of adopting parents, and the relationship dynamics before and after adoption.

Certain Canadian provinces require involvement of licensed adoption agencies for international adoptions. Also, non-Hague adoptions face lengthy processing and complex issues.

E. Guardianship Provisions

1. Original Intent and Implementation Challenges

Intended to sponsor orphaned or abandoned children, these provisions faced feasibility issues and were not implemented, leading to their repeal in 2005.

2. Current Approach

IRCC examines such cases individually, utilizing discretion for humanitarian and compassionate reasons to allow children into Canada.

F. Other Relationships

1. Sponsoring Distant Relatives

Sponsors without closely related family members in Canada can sponsor a distant relative, including independent children over 22, uncles, aunts, and cousins.

2. Regulation Interpretation and Litigation

Litigation has clarified that the presence of any relative who could theoretically be sponsored prevents using section 117(1)(h) for sponsorship, even if actual sponsorship is not feasible or the relative is inadmissible.

III. Criteria for Becoming a Sponsor in the Family Class

A. Eligibility Requirements

Sponsorship in family class immigration is pivotal and depends on the relationship between the sponsor and the Permanent Residence (PR) applicant. The sponsor undertakes a legal commitment, termed an “undertaking”, to provide basic living expenses for a specified period. Key points include:

  • The sponsor must be a Canadian citizen or a PR and at least 18 years old.
  • Residency in Canada is generally required, with certain exceptions for Canadian citizens.
  • Sponsors cannot have been sponsored as a spouse, common law partner, or conjugal partner within the last five years.
  • Application must be filed in a prescribed manner (IMM 1344 form).

1. Residency in Canada

  • The sponsor must generally reside in Canada, with exceptions for Canadian citizens planning to return when the sponsored person becomes a PR.
  • The concept of “reside” isn’t strictly defined, but tribunal cases have provided guidelines.
  • PRs living abroad cannot sponsor.
  • Various alternatives exist for maintaining family unity during the processing period, including temporary visas and permits.

2. Five-Year Requirement

  • A PR or naturalized Canadian citizen who was previously sponsored as a spouse, common law, or conjugal partner, cannot sponsor a new partner within five years of becoming a PR.

B. Disqualifications for Sponsorship

Even if the basic criteria are met, certain conditions can disqualify a person from sponsoring, including:

  • Being under a removal order or detained.
  • Convictions for certain offenses, especially those involving violence or sexual nature.
  • Defaulting on spousal or child support payments.
  • Being an undischarged bankrupt or in receipt of social assistance (other than for disability).
  • Defaulting on a previous sponsorship undertaking.

C. The Undertaking

  • The undertaking is a legal contract with the government, varying from 3 to 20 years, depending on the relationship and age of the family member.
  • The sponsor is responsible for ensuring the sponsored family member does not need social assistance.
  • Obligations are unconditional and persist regardless of changes in personal circumstances.

D. Sponsorship Agreement

  • In addition to the undertaking, the sponsor must sign an agreement with the applicant (IMM 1344 form).
  • This agreement outlines mutual obligations and remains effective despite events like citizenship acquisition or marital breakdown.
  • Sponsored individuals should be aware of their rights, especially in cases of abuse.

E. Financial Requirements

  • Sponsors must demonstrate financial capacity to support their family members.
  • The Minimum Necessary Income (MNI) is the threshold, based on Low-Income Cut-Offs (LICO) and varies by family size.
  • Exceptions exist for certain relatives, but financial capability must still be demonstrated.
  • For parents or grandparents, a higher income threshold (LICO plus 30%) is required for the three years preceding the application.
  • Quebec has distinct financial evaluation criteria for sponsorship.

F. Proof of Relationship

  • The burden of proof for the nature of the relationship lies with the applicant.
  • Detailed documentation is required to establish the genuineness of relationships, especially in cases of marriages, common law, and conjugal partnerships.

G. Document Checklist

  • A comprehensive checklist guides the required documentation for various sponsorship scenarios.
  • DNA evidence may be needed if documentary proof of biological relationships is insufficient.
  • Counsel must ensure thorough and precise adherence to the checklist to avoid processing delays or rejections.

IV. Application Processes for Family Class Sponsorship in Canadian Immigration

Overview

The application process for family class sponsorship involves concurrent but separate applications by the sponsor in Canada and the foreign national. Updated and detailed guidelines are available on IRCC’s website.

A. Sponsor’s Application Process

The sponsor, a Canadian citizen or PR, must fulfill various criteria under sections 130 and 133 of the IRPR. The sponsor’s application kit, obtainable from IRCC’s website or call centre, includes several forms and a detailed guide. Key forms include:

  • Application to Sponsor, Sponsorship Agreement and Undertaking (IMM 1344)
  • Financial evaluation form
  • Relationship questionnaire
  • Document checklist

B. Permanent Residence Application Process

The principal applicant, who must meet the definition of a “member of the family class”, submits their application package, which includes:

  • Generic Application Form for Canada (IMM 0008)
  • Additional Family Information form (IMM 5406)
  • Schedule A—Background/Declaration form (IMM 5669)
  • Questionnaire about the relationship (for spouses or common law partners)
  • Region-specific instructions

Both applications are sent together to IRCC, with processing in Canada by an immigration officer and abroad by a visa officer.

C. Specific Requirements and Processes

1. Permanent Residence Application as a Member of the Family Class

  • Applicants are not assessed based on self-support capacity but on their familial relationship with the sponsor.
  • Proof of a bona fide relationship is critical.

2. Proof of Relationship to the Sponsor

  • Essential for both sponsors and applicants.
  • Includes birth certificates, identity documents, and, if necessary, DNA evidence.
  • Detailed proof is required for spousal and adoption cases.

3. Calculating Immigration Fees

  • Fees include application fees for the sponsor and applicant, the Right of Permanent Residence Fee (RPRF), and fees for any dependent children.
  • Specific examples and tables illustrate the fee calculation.

4. Decisions on Applications

  • Immigration officers and visa officers make decisions based on eligibility, admissibility, and completeness of the application.
  • Sponsorship and PR applications are processed separately but are interdependent.

5. Sponsor’s Right to Appeal

  • Appeals are possible for sponsors whose applications are refused.
  • Restrictions on appeals exist in cases of inadmissibility for serious reasons.

D. Special Considerations for Adoption

The process for adopting and sponsoring a child includes:

  • Compliance with international laws and conventions, particularly the Hague Convention on Adoption.
  • Approval from Canadian authorities and the child’s home country.
  • Different processes for children adopted outside vs. inside Canada.
  • Specific IRPR requirements for adoption cases.

E. Citizenship Process for Adopted Children

For children adopted by Canadian citizens:

  • An alternate process allows direct application for Canadian citizenship.
  • Specific conditions apply, including severance of ties with biological parents and completion of adoption outside Canada.

Important Notes

  • Always refer to the latest IRCC guidelines and forms.
  • Each case is unique, requiring careful preparation and submission of all necessary documents.
  • Legal and regulatory complexities necessitate thorough understanding and compliance.

Pax Law can help you!

Our team of skilled immigration lawyers and consultants is prepared and eager to support you to choose your immigration pathway. Please visit our appointment booking page to make an appointment with one of our lawyers or consultants; alternatively, you can call our offices at +1-604-767-9529.


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