Medicals for non-accompanying dependent

[mp8472]

I'm sponsoring my common-law partner through the inland process. She has been in Canada since 2014, the PR application has been open since 2016, and we've been back and forth with IRCC with the issue of her daughter who currently lives with her father in the US. There are court documents stating that he is the primary residential parent, but my partner still has visitation rights.

Her father will not consent to her coming to Canada to have a medical exam done, and he will not allow anybody to take her for the medical exam. IRCC has requested the exam multiple times now. We have explained the situation and provided as much evidence as possible to show them the situation.

We received another letter from IRCC which reads in part:

Non exam of DEP(s): In order for the department to consider removing your dependant from your application for permanent residence, you must provide:

Proof that another person has sole custody of your child and that you are not empowered to act on behalf of your dependent child by virtue of a court order or written agreement, i.e. that you have no parental rights.

A signed statutory declaration outlining the circumstances of your inability to have your child examined. Your declaration must include details of all efforts you have made in order to have your child comply with immigration legislation, including specific reasons why you are unable to exercise your parental rights. This declaration must be administered by a Commissioner for Oaths or Notary Public and must state that you are aware that you cannot sponsor your child in the future, even though this may result in permanent separation, pursuant to subsection 117(9)(d) of the Immigration and Refugee Protection Regulations. You must also provide any documentary proof or evidence that may support your statements in the statutory declaration.

There is no proof of sole custody, and we previously provided them with the declaration and all proof we could to explain the situation. Her daughter will turn 18 next year, and says she will get the exam done on her own if the application is still open at that time. It's really just the father and step-mother making the situation difficult.

We discussed the situation with an immigration lawyer here who advised to reach out to a lawyer in the daughter's hometown. We did this, and that lawyer really only gave us three options:

1. Convince the father to allow the medical exam.
2. Take him to court in the US
3. Sign over full parental rights (which would also require her presence in the US)

To make things more difficult, my partner is not a US citizen and cannot enter the US at this time. Is there anything else we can do at this point? Maybe something we haven't thought of yet? All we really need to do is ensure she can stay until next summer when her daughter can get medicals on her own. If denied, how long will she have to stay in Canada? Will we have time to put in another PR application?

 

[canuck_in_uk]

I'm sponsoring my common-law partner through the inland process. She has been in Canada since 2014, the PR application has been open since 2016, and we've been back and forth with IRCC with the issue of her daughter who currently lives with her father in the US. There are court documents stating that he is the primary residential parent, but my partner still has visitation rights.

Her father will not consent to her coming to Canada to have a medical exam done, and he will not allow anybody to take her for the medical exam. IRCC has requested the exam multiple times now. We have explained the situation and provided as much evidence as possible to show them the situation.

We received another letter from IRCC which reads in part:

Non exam of DEP(s): In order for the department to consider removing your dependant from your application for permanent residence, you must provide:

Proof that another person has sole custody of your child and that you are not empowered to act on behalf of your dependent child by virtue of a court order or written agreement, i.e. that you have no parental rights.

A signed statutory declaration outlining the circumstances of your inability to have your child examined. Your declaration must include details of all efforts you have made in order to have your child comply with immigration legislation, including specific reasons why you are unable to exercise your parental rights. This declaration must be administered by a Commissioner for Oaths or Notary Public and must state that you are aware that you cannot sponsor your child in the future, even though this may result in permanent separation, pursuant to subsection 117(9)(d) of the Immigration and Refugee Protection Regulations. You must also provide any documentary proof or evidence that may support your statements in the statutory declaration.

There is no proof of sole custody, and we previously provided them with the declaration and all proof we could to explain the situation. Her daughter will turn 18 next year, and says she will get the exam done on her own if the application is still open at that time. It's really just the father and step-mother making the situation difficult.

We discussed the situation with an immigration lawyer here who advised to reach out to a lawyer in the daughter's hometown. We did this, and that lawyer really only gave us three options:

1. Convince the father to allow the medical exam.
2. Take him to court in the US
3. Sign over full parental rights (which would also require her presence in the US)

To make things more difficult, my partner is not a US citizen and cannot enter the US at this time. Is there anything else we can do at this point? Maybe something we haven't thought of yet? All we really need to do is ensure she can stay until next summer when her daughter can get medicals on her own. If denied, how long will she have to stay in Canada? Will we have time to put in another PR application?

The selfishness of some parents in refusing to allow the medical is disgusting. Unfortunately, it happens all too often on here.

The sticking point is likely that your partner does technically have legal access. Did you provide proof that she cannot enter the US and that the father is refusing to allow the child to travel to Canada?

It probably wouldn't be allowed but did you contact a Panel Physician and ask if she can do the medical without a parent present?

 

[mp8472]

Is she allowed to leave the country with an inland application pending?

She left the US voluntarily, but she does have a lengthy overstay (she was brought to the US as a minor by her mother) on her record. Technically, she hasn't been denied entry, but chances are they would deny her if she tried to enter again. We were honest on her application with regards to the duration and status in the US, and we submitted her (clean) background check from the US, but I'm concerned that it would open up a bigger can of worms if she tried to enter and was denied re-entry to the US. Maybe not?

The closest panel physician is almost 4 hours away. The daughter would really have no means to get there on her own and back without some help. I would fly down there and take her, but arranging that in a stealthy way would be nearly impossible to schedule and pull off.

 

[canuck_in_uk]

Is she allowed to leave the country with an inland application pending?

She left the US voluntarily, but she does have a lengthy overstay (she was brought to the US as a minor by her mother) on her record. Technically, she hasn't been denied entry, but chances are they would deny her if she tried to enter again. We were honest on her application with regards to the duration and status in the US, and we submitted her (clean) background check from the US, but I'm concerned that it would open up a bigger can of worms if she tried to enter and was denied re-entry to the US. Maybe not?

The closest panel physician is almost 4 hours away. The daughter would really have no means to get there on her own and back without some help. I would fly down there and take her, but arranging that in a stealthy way would be nearly impossible to schedule and pull off.

I'm not familiar with the US rules but I believe that a lengthy overstay means an automatic ban from the US. If that ban is in place, she cannot try to enter the US.

At this point, it looks like all you can do is submit everything again with a letter of explanation. If she is banned from the US, explain that.

 

[monkeys89]

I'm sponsoring my common-law partner through the inland process. She has been in Canada since 2014, the PR application has been open since 2016, and we've been back and forth with IRCC with the issue of her daughter who currently lives with her father in the US. There are court documents stating that he is the primary residential parent, but my partner still has visitation rights.

Her father will not consent to her coming to Canada to have a medical exam done, and he will not allow anybody to take her for the medical exam. IRCC has requested the exam multiple times now. We have explained the situation and provided as much evidence as possible to show them the situation.

We received another letter from IRCC which reads in part:

Non exam of DEP(s): In order for the department to consider removing your dependant from your application for permanent residence, you must provide:

Proof that another person has sole custody of your child and that you are not empowered to act on behalf of your dependent child by virtue of a court order or written agreement, i.e. that you have no parental rights.

A signed statutory declaration outlining the circumstances of your inability to have your child examined. Your declaration must include details of all efforts you have made in order to have your child comply with immigration legislation, including specific reasons why you are unable to exercise your parental rights. This declaration must be administered by a Commissioner for Oaths or Notary Public and must state that you are aware that you cannot sponsor your child in the future, even though this may result in permanent separation, pursuant to subsection 117(9)(d) of the Immigration and Refugee Protection Regulations. You must also provide any documentary proof or evidence that may support your statements in the statutory declaration.

There is no proof of sole custody, and we previously provided them with the declaration and all proof we could to explain the situation. Her daughter will turn 18 next year, and says she will get the exam done on her own if the application is still open at that time. It's really just the father and step-mother making the situation difficult.

We discussed the situation with an immigration lawyer here who advised to reach out to a lawyer in the daughter's hometown. We did this, and that lawyer really only gave us three options:

1. Convince the father to allow the medical exam.
2. Take him to court in the US
3. Sign over full parental rights (which would also require her presence in the US)

To make things more difficult, my partner is not a US citizen and cannot enter the US at this time. Is there anything else we can do at this point? Maybe something we haven't thought of yet? All we really need to do is ensure she can stay until next summer when her daughter can get medicals on her own. If denied, how long will she have to stay in Canada? Will we have time to put in another PR application?

This is maybe a callous question in a really tough time, but is your partner insistent on the possibility of sponsoring her daughter at some time in the future? I don't know if CIC will be willing to "pause" an application until her daughter turns 18 and can do the medicals on her own. They may consider the application as abandoned due to a refusal to submit the medicals. I also doubt that they would be willing to accept the medicals if the application is still open when daughter turns 18, because they're asking your wife to waive her parental sponsorship rights at the moment.

This is so sad. Even a medical exam as a non-accompanying is in the best interests of the child, and does no harm to parental custody rights. I'm sorry you have to deal with that.

 

[scylla]

Is she allowed to leave the country with an inland application pending?

She left the US voluntarily, but she does have a lengthy overstay (she was brought to the US as a minor by her mother) on her record. Technically, she hasn't been denied entry, but chances are they would deny her if she tried to enter again. We were honest on her application with regards to the duration and status in the US, and we submitted her (clean) background check from the US, but I'm concerned that it would open up a bigger can of worms if she tried to enter and was denied re-entry to the US. Maybe not?

The closest panel physician is almost 4 hours away. The daughter would really have no means to get there on her own and back without some help. I would fly down there and take her, but arranging that in a stealthy way would be nearly impossible to schedule and pull off.

If she has an overstay of more than a year, then she is subject to a 10 year re-entry ban to the U.S. that kicked in automatically the day she left. I would absolutely not attempt to re-enter. The U.S. takes quite a hard stand towards overstays and if she attempts to re-enter, they could extend the length of her ban, deport her to her home country and/or detain her.

She should be aware that this ban will remain in place even after she becomes a Canadian PR or citizen. She needs to stay out of the US and not attempt any re-entry for the full 10 years.

 

[canuck_in_uk]

This is maybe a callous question in a really tough time, but is your partner insistent on the possibility of sponsoring her daughter at some time in the future? I don't know if CIC will be willing to "pause" an application until her daughter turns 18 and can do the medicals on her own. They may consider the application as abandoned due to a refusal to submit the medicals. I also doubt that they would be willing to accept the medicals if the application is still open when daughter turns 18, because they're asking your wife to waive her parental sponsorship rights at the moment.

This is so sad. Even a medical exam as a non-accompanying is in the best interests of the child, and does no harm to parental custody rights. I'm sorry you have to deal with that.

IRCC would certainly accept the medical after the daughter turns 18 if the app is still open. They aren't asking the mother to waive her parental rights.

 

[canuck_in_uk]

If she has an overstay of more than a year, then she is subject to a 10 year re-entry ban to the U.S. that kicked in automatically the day she left. I would absolutely not attempt to re-enter. The U.S. takes quite a hard stand towards overstays and if she attempts to re-enter, they could extend the length of her ban, deport her to her home country and/or detain her.

She should be aware that this ban will remain in place even after she becomes a Canadian PR or citizen. She needs to stay out of the US and not attempt any re-entry for the full 10 years.

Thanks scylla, that's what I thought.

 

[canuck_in_uk]

She left the US voluntarily, but she does have a lengthy overstay (she was brought to the US as a minor by her mother) on her record. Technically, she hasn't been denied entry, but chances are they would deny her if she tried to enter again. We were honest on her application with regards to the duration and status in the US, and we submitted her (clean) background check from the US, but I'm concerned that it would open up a bigger can of worms if she tried to enter and was denied re-entry to the US. Maybe not?

So as scylla has said, she should definitely not try to enter the US. She needs to show that she is not allowed to enter and that the father refuses to allow the daughter to travel.

Is your partner in contact with any other family members or friends of the father? Anyone she can have try to convince him that it's in the daughters best interests to do the medical and that she can't immigrate without his legal permission?

 

[monkeys89]

IRCC would certainly accept the medical after the daughter turns 18 if the app is still open. They aren't asking the mother to waive her parental rights.

They are though, in the context of asking not to have to submit her medical for the reason of not having a cooperative parent in the US:

We received another letter from IRCC which reads in part:

Non exam of DEP(s): In order for the department to consider removing your dependant from your application for permanent residence, you must provide:

Proof that another person has sole custody of your child and that you are not empowered to act on behalf of your dependent child by virtue of a court order or written agreement, i.e. that you have no parental rights.

A signed statutory declaration outlining the circumstances of your inability to have your child examined. Your declaration must include details of all efforts you have made in order to have your child comply with immigration legislation, including specific reasons why you are unable to exercise your parental rights. This declaration must be administered by a Commissioner for Oaths or Notary Public and must state that you are aware that you cannot sponsor your child in the future, even though this may result in permanent separation, pursuant to subsection 117(9)(d) of the Immigration and Refugee Protection Regulations. You must also provide any documentary proof or evidence that may support your statements in the statutory declaration.

The bigger question is whether or not IRCC will "pause" an application to allow it to be considered still open when the daughter turns 18 and is able to travel the four hours to the panel physician. If they've sent numerous demands for the medical and are of the opinion that it isn't forthcoming, they may consider the application abandoned.

IRCC is saying that the only way for her not not have to submit medicals is to submit a signed statement saying "I have no parental rights and understand this means I'll never be able to sponsor her," except that isn't true as the parent has visitation rights.

IRCC seems to be seeing this as a binary (either the parent has rights and can get a medical and potentially sponsor, or the parent has no rights, no medical, and may never sponsor). It isn't binary, it's a shade of grey.

 

[canuck_in_uk]

They are though, in the context of asking not to have to submit her medical for the reason of not having a cooperative parent in the US:

The bigger question is whether or not IRCC will "pause" an application to allow it to be considered still open when the daughter turns 18 and is able to travel the four hours to the panel physician. If they've sent numerous demands for the medical and are of the opinion that it isn't forthcoming, they may consider the application abandoned.

That is not asking her to waive her parental rights. That is just standard wording. The issue here is that she does have legal rights to the child, so IRCC needs to see that she is unable to exercise those rights.

Not a question. They will not pause an app.

 

[monkeys89]

That is not asking her to waive her parental rights. That is just standard wording. The issue here is that she does have legal rights to the child, so IRCC needs to see that she is unable to exercise those rights.

Not a question. They will not pause an app.

That is not asking her to waive her parental rights. That is just standard wording. The issue here is that she does have legal rights to the child, so IRCC needs to see that she is unable to exercise those rights.

Not a question. They will not pause an app.

Yeah, I understand it's standard wording and doesn't reflect reality. It's just I don't think that there's a way to get IRCC to think outside the box here.

 

[canuck_in_uk]

Yeah, I understand it's standard wording and doesn't reflect reality. It's just I don't think that there's a way to get IRCC to think outside the box here.

They usually do. Most VOs generally accept the declaration of excluding the child, while a few continue to push for the medical.

 

[monkeys89]

They usually do. Most VOs generally accept the declaration of excluding the child, while a few continue to push for the medical.

Yes, but the declaration means stating that you have no parental rights and providing court order proof of that. And she can't make that statement without voluntarily waiving rights. So what the OP needs here is to have IRCC somehow understand that she has parental rights but cannot use them. Or she needs to accept that she will lose the ability to sponsor the daughter.

If the VO accepts the declaration, the OP is (1) making a statutory declaration she has no parental rights, which is incorrect, and (2) waiving her right to sponsor.

If the VO continues to push for the medical after reading that the parent has some rights but not enough to force the custodial parent to allow a medical, then the application is abandoned after not providing required information.

There is no ability to "pause" an application until a birthday in the hopes the daughter will then be able to take herself to the exam.

That is the box: the OP has limited parental rights but the custodial parent refuses to allow the medical. IRCC demands either a declaration and proof of no parental rights and waiving sponsorship or a medical. OP needs to find a way out.

 

[canuck_in_uk]

Yes, but the declaration means stating that you have no parental rights and providing court order proof of that. And she can't make that statement without voluntarily waiving rights. So what the OP needs here is to have IRCC somehow understand that she has parental rights but cannot use them. Or she needs to accept that she will lose the ability to sponsor the daughter.

No, it doesn't. The declaration is an acknowledgement that the child will be excluded from the Family Class and will never be able to be sponsored. It has nothing to do with waiving parental rights. Many submit the declaration with no supporting documentation and have no issues. Many come from countries where there are no legal custody arrangements, so it is impossible to show such proof; instead, they show communication with the other parent refusing the medical. Generally, IRCC accepts this.

If the VO accepts the declaration, the OP is (1) making a statutory declaration she has no parental rights, which is incorrect, and (2) waiving her right to sponsor.

Incorrect on 1. As I said above, the declaration is to state the applicant's understanding that the child will be excluded.

If the VO continues to push for the medical after reading that the parent has some rights but not enough to force the custodial parent to allow a medical, then the application is abandoned after not providing required information.

There is no ability to "pause" an application until a birthday in the hopes the daughter will then be able to take herself to the exam.

That is the box: the OP has limited parental rights but the custodial parent refuses to allow the medical. IRCC demands either a declaration and proof of no parental rights and waiving sponsorship or a medical. OP needs to find a way out.

Yes, IRCC may refuse the app. It is rare in this situation, as most VOs would have accepted the proofs submitted and excluded the child, but it does happen.

As I said, IRCC generally does go outside of the box in this situation. Unfortunately for OP and partner, they seem to have one of those VOs on the extreme end in this situation.