Family Class

Question 1

Dependent Child

Answer 1

• A child that is under 22 years old and has been financially dependent on the parent prior to 22 and cannot be financially dependent resulting from physical or mental health
• must have the dependent examined, if required, would have to show them that all methods to have the dependent examined has been exhausted, including court order
• the officer will have to be made known of the dependent to waive the examination
• in the case of separation, the officer does have to inform the applicant that the child must be examined and in the case where the offcier fails then it may be grounds for an appeal at IAD
• if there were reasons for not disclosing the dependent the officer may consider these motivation as a mitigating factor against the non-disclosure itself
• the officer has the discretion to consider H&C grounds

Question 2

Who may be sponsored?

Answer 2

• the PR applicants is based on their relationship to their sponsor, who must be either Canadian Citizen or a Canadian PR

Includes the following:

• spouses or C/L and conjugal partners
• Dependent children (biological or adopted)
• children intended for adoption in Canada
• parents and grandparents
• brothers, sisters, nephews, nieces or grandchildren wo are orphaned, not a spouse and under 18
• any relative if the sponsor is in Canada and has no other FM and has no other FM to sponsor

Excluded Relationships:

• the sponsor had previously sponsored somebody and that undertaking hasn’t finished
• of the sponsor or the applicant is the spouse/CL/CP of somebody else
• the applicant was a non-accompanying family member of the sponsor and was not examined whe the sponsor previously applied to Canada as PR (r. 117 (9)(d))

Question 3

Spousal Relationships Define

Answer 3

Common Law:

Must have lived with one another for at least 12 months, continuously, in a marriage like relationship

• may be sponsored In Canada since they are already living together with one another - Manual 19 Inland processing

Conjugal Relationships:

The applicant resides outside of Canada, , created for those that cannot get legally married and cannot live together for an entire unterrupted year.

Three factors to look at when defining a Conjugal relationship

1. a significant degree of attachment , both physical and emotional
2. a mutual and continuing commitment to a shared life together
3. emotional and financial interdependcy
4. have existed for a minimum of 1 year

Question 4

Requirements of a Legit Marriage

Answer 4

• be at least 18 years of age
• legally married to the sponsor - not married or in a relationship with anybody else
• marriage that took place outside of Canada must be legal in the country where it took place and must conform to Canadian law
• both parties must be physically at the wedding, unless there was an exception

s. 16(1) the onus is on the applicant o prove the validity of the marriage

Question 5

Appeal - Non Family Member

Answer 5

No right to appeal to IAD because s. 63 and 65 states that appeal is only available to those that are considered to be a part of the family member class.

** Would be able to challenge the decision based on factual findings or to request for H+C consideration to overcome ineligibility

• if H+C request is refused, may seek Leave and Judicial Review at the Federal Court

Question 6

s. 117(9)(d)

Examination of Non-Accompanying Family members

Answer 6

To obligation is to disclose dependents at the time of application is filed and continues until permanent residence is granted

• also applicable to protected persons
• the applicants intentions or reason of non-disclosure is irrelevant under this section

Question 7

Bad Faith Relationship

Answer 7

If either of these two points exists then the relationship can bar the sponsorship

1. entered ito the marriage for the purpose of acquiring immigration benefits
2. the relationship is not genuine

Question 8

Right to Appeal

Answer 8

There is no right to appeal for in Canada sponsorship

Outside Canada Sponsorship: if refused, then may appeal so at times it may be more beneficial to apply for sponsorship from outside of Canada

Right of Appeal for Sponsor: s. 63

• a sponsor whose application to sponsor a member of the family class is refused may appeal to the IAD

No Right of Appeal for Sponsor: s. 64

• cannot appeal the application if they were found not to be a family member but may apply to the Federal court for judicial review within 15 days
• if not a part of the Family class, then may not appeal for H+C
• if they are inadmissible on grounds of security then cannot appeal,
• Misrep: can only appeal if they are members of the family class.

Question 9

Lack of Status

Answer 9

Refers to the following situations:

• persons who have overstayed their visa or permit
• person or have worked or studied without authorization
• persons wo have entered Canada without a proper Visa or without valud documents

It does not refer to any other inadmissibility

Question 10

Lock-In Age

Answer 10

The Lock in age is the day that the CPC - case processing center, recieves the application in full.

• the age of the dependent will be frozen in time

Question 11

Orphaned Relatives

Answer 11

R. 117 (1)(f)

Half and step siblings, nieces, nephews, grandchldre may be sponsored as relatives if they meet all the following criteria

• they are orphaned
• they are not a spouse or common law partner
• they are under 18

Sponsorship for orphaned relatives who are under 18 years of age follows the same procedure as those for adopted children under 18 years - provided that they are unmarried and not a common law spouse.

• visa officer must obtain the written consent of the appropriate authorities in the child’s country of residence
• written consent of any legal guardians must also be obtained

Question 12

Adopted Children

Answer 12

A dependent child must be related to the sponsor by blood relationship or by adoption

• in the case of adoption the consent of the parent must be given, if both parents are alive then consent of both must be given
• if one parent gives consent, the visa officer must be satisfied that the second parents has no legal rights to the chhild

Best Interest of the Child: if the foreign adoption was not in the best interest of the child then they will not be considered to be in the family class

• the adoption must be in best interest of the child
• it is an adoption that had created a genuine parent-child relationship and not out of convienence
• once the child is adopted, their relationship to the parents is now severed and they can no longer sponser their biological parents

IRCC Officer: must approve of the sponsorship prior to the adoption

Question 13

Other Relationships

Answer 13

A sponsor who do not have a closely related family member who is either a Canadian citizen or a PR, may sponsor one distant relative regardless of age or relationship.0

Question 14

Sponsor - Eligibility

Answer 14

To be a sponsor, must meet the following criterias

• a citizen or have PR
• at least 18 years old
• reside in Canada - there are exceptions
• was not sponsored themselves as a spouse or partner in the last five yars
• file the proper applications and paperwork

Cannot sponsor or be a co-signer if:

• Subject to a removal order
• detained in a prison or penitentiary
• not have been convicted of an offence or sexual offence
• in defualt of spousal or child support
• is in default of a debt owed under the IRPA
• undischarged bankrupt
• using social assistance
• is in default of previous sponsorship undertaking

Question 15

Undertaking

Answer 15

Duration: 3-20 years depending on the relationship and the age of the family member being sponsored.

• takes into effecct the day the FN steps into Canada
• 3 years for a spouse
• 10 years or until 25 for a dependent that is less than 22 at the time of landing
• 3 years for dependents that are older than 22
• 20 years for parents and grandparents

Obligation of Sponsor:

• agrees to ensure that the FM receives the support they need to establish themselves in Canada
• agrees to repay the government back for any social assistance made to the sponspored FM

Co-signers are responsible for the undertaking also - jointly and severally

Question 16

Financial Obligations

Answer 16

MNI: Minimum Necessary Income, the threshold for sponsorship, this is also based on LICO

LICO: Low income cut off, and this numbver varies depending on the number of people within the family

*** sponsor must meet the requirements at all times

Exemptions: R. 133(4) : MNI do not apply to all relatives

• spouses / common law with or without dependents
• a dependent child who has no dependent of their own
• a child under the age of 18 and has the intention of adopting

Sponsors Income Must come from Canadian sources, with two exceptions:

1. if they work in the States and commute from Canada to work, they can use the US income, as long as it is declared income
2. sponsors living in Canada who decare income from foreign sources on their Canada income tax return

Different requirements for different relationships

• Spouse or dependent: exempted unless there is a dependent child to the dependent child
• other relatives: total income that is at least equal to the MNI
• Parents or grandparents: MNI + 30% for the last three consecutive tax years

Question 17

Co-Signers

Question 18

Hague Convention - Adoption

Answer 18

Objective: to provide a minimum standard and procedure for adoption between countries. It is intended to end unethical adoption and to promote cooperation between the countries

• it requires that the central adoption authority in both the child’s destination and current residence to agree to the child’s adoption

Question 19

Adoption Prior to Sponsorship

Answer 19

r. 117 (1) (g) : where sponsorship cannot be completed prior to adoption abroad

The following conditions for membership in the family class:

• under the age of 18
• no evidence that the adoption is for sponsorship
• If the country is a part of the Hague convention then the competent authorities must have provided in writing that they approve of the adoption
• if the country was not apart of the Hague convention then there is evidence that the adoption is legal

Question 20

Citizenship - Adoption

Answer 20

Adopted parents may apply for citizenship on behalf of their adopted child, and the following is accessed

• at least one adopting parent is or was a Canadian Citizen when the adoption had taken place
• the adoption was or will be completed outside of Canada
• all ties with the biological parents have been severed.

* rememeber that because all ties have been severed then they will not be able to sponsor their biological parents