Application for PRTD H&C reason, death of spouse

[Father2020]

Dear all,

My spouse was a Canadian citizen and died recently. I have to go to Canada to reunite with my children. They are now alone in Canada. My children are teenagers, two of them are under 18 years old, they are Canadian citizens. I have an expired PR and not meet RO – only 400 days for 5 years. Now I am outside Canada and don’t have US visa to enter Canada via US border. I am going to apply for PRTD for H&C reason: the best interests of my children. How do you see my chances for approval my application for PRTD for H&C reason? I will appreciate you help. Thank you in advance.

 

[scylla]

Dear all,

My spouse was a Canadian citizen and died recently. I have to go to Canada to reunite with my children. They are now alone in Canada. My children are teenagers, two of them are under 18 years old, they are Canadian citizens. I have an expired PR and not meet RO – only 400 days for 5 years. Now I am outside Canada and don’t have US visa to enter Canada via US border. I am going to apply for PRTD for H&C reason: the best interests of my children. How do you see my chances for approval my application for PRTD for H&C reason? I will appreciate you help. Thank you in advance.

Very sorry for your loss.

It's difficult to answer your question and guess at your chances of approval. Normally an H&C argument for a PRTD application focuses on why you were unable to meet the residency requirement and what forced you to be outside of Canada. In other words, you have to prove that you have H&C grounds for having failed to meet the residency requirement.

Having said that, you should certainly try applying in the best interests of your children. If you have strong H&C reasons for having remained outside of Canada and not met RO, you should include that evidence and information as well.

Good luck.

 

[Father2020]

Dear Scylla, thank you very much for your advice and quick response! I am going say as H&C reason that my children will have to leave Canada if I don’t get to Canada and it will affect them dramatically. What do you think about this logic?

 

[primaprime]

Is there nobody else who can care for them in Canada? If they are citizens who have grown up here, it would likely be determined that it is in their best interest to remain in Canada and not be dislocated from their community.

Why were you abroad?

 

[Father2020]

Dear Primaprime, thank you very much for your participation! Answering your questions:

Is there nobody else who can care for them in Canada?
- Nobody. There are no adult relatives and friends. The oldest son is 19 years old and now he is a temporary guardian for the other 2 children.

If they are citizens who have grown up here, it would likely be determined that it is in their best interest to remain in Canada and not be dislocated from their community.
- Thank you for your opinion.

 

[canuck78]

First I am sorry for your loss. Depending on where you are it may take quite a while to get an answer about your PRTD based on H&C. Would make sure they have a plan in place if it does take you a while to reunite with them. Have your children been living in Canada all this time? That will certainly factor into the decision.

 

[Father2020]

Dear Сanuck78, thank you very much for your answer and kind words! My children have been living in Canada for 6 years and have never left the country. They have money for life and they are morally supported by me and very warm social service workers.

Unfortunately I do not understand how long the process of considering my application can take...

 

[canuck78]

Dear Сanuck78, thank you very much for your answer and kind words! My children have been living in Canada for 6 years and have never left the country. They have money for life and they are morally supported by me and very warm social service workers.

Unfortunately I do not understand how long the process of considering my application can take...

Impossible to say. Just wanted to make sure they aren’t expecting you in the very near future.

 

[Father2020]

Thank you

 

[scylla]

Dear Scylla, thank you very much for your advice and quick response! I am going say as H&C reason that my children will have to leave Canada if I don’t get to Canada and it will affect them dramatically. What do you think about this logic?

I would strongly recommend that you hire a Canadian immigration lawyer to assist you with submitting the PRTD with H&C. Again, normally H&C reasons are supposed to focus on what prevented you from moving to Canada. Your case is not normal. I would get legal advice.

 

[Father2020]

Scylla, thank you very much indeed!

 

[vensak]

Ok first of all my condoleances.

And now to more or less my opinion on this case.

I would strongly advise NOT to go for PRTD and instead to get USA visa (even if they will be just transit visa). Then arrive to Canada and try to explain whole situation on the border crossing.

Why do I think so?

1. lets not mix up H&C application with PRTD application with H&C reasons. those are 2 completely different things
2. We can all agree that at the moment you are not eligible for H&C and the simple reason is, that you are still PR (H&C is for people that are not PR or Canadian citizen). And the main focus of such application is to show why you need to stay in Canada (that is where the best interest of child card can be used).
3. PRTD application with H&C reasons is supposed to show why were you unable to return to Canada earlier. Technically the best interest of child could be used there, but with completely different perspective (why you and your child could not travel and what exceptional circumstances were holding your child abroad and of course you has his or her parent).
4. However your case looks like this. Most likely separately and managing your own life and very occasionally visiting Canada ( maybe for summer holidays or maybe you were there like 4 years ago and you have just left). Your children are in Canada already so the reversed argument cannot be used.
As a result you are running a high risk for your application to be rejected (because of lacking H&C reasons why were you staying outside Canada)
5. With such result you can sure appeal, but if you were not in Canada past 1 year you will not get PRTD for appeal purposes and you have to appeal from your current country of residence. And especially for such appeals it is crucial to try to show your vivid interest in Canada (just to have minor children there is not enough). But how can you show it if you will stay outside Canada.
6. Also from what you have just said there is an adult that can handle legal things in Canada (your 19 years old is an adult according to the law and this should not be mixed with dependent). So there is no apparent urgency for you to return (you can just send money for now).

However if you still attempt to get USA visa and go through border crossing and explain the whole story, you might have small chance not to be reported. But if you get reported you will be still let in Canada where you can appeal and use that time (it can take up to 2 years) to settle back in Canada, which will make your appeal stronger. Sure you will not be able to leave Canada for some time, but then again you want to take care of your children, so that is your priority.

 

[Father2020]

"Factors for consideration The range of factors to be considered can not be restricted by these guidelines. Officers are obliged to consider all the information presented by a permanent resident. Humanitarian and compassionate factors must be reviewed on a case by case basis. Permanent residents are free to make submissions on any aspect of their personal circumstances that they feel would warrant retention of their permanent resident status. The following are examples of the kinds of factors or combinations of factors that an officer might consider in determining whether humanitarian and compassionate grounds justify the retention of permanent resident status. Officers are to examine circumstances and events that occurred in the last five-year period which led to the permanent resident’s breach of the residency obligation. As required byA28(2)(c), officers are also to take into account the best interests of a child directly affected by the determination and the degree of hardship that may be caused because of a loss of permanent resident status. Examples of factors to weigh and consider:
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Presence and degree of consequential hardship:
A loss of permanent resident status will have the consequence of either having tovoluntarily leave or be removed from Canada. The removal of a status-less person may have an impact on family members who do have the legal right to remain in Canada (for example, Canadian citizens and/or permanent residents). Officers should consider the person’s degree of hardship in relation to personal circumstances (that is, impact on family members, especially children)."

- from CIC Manual Loss of PR status

 

[Father2020]

Dear Vensak, Thank you very much for your condoleances and information. Unfortunately I dont undestand how I can receive US visa within couple of months period. I think this is impossible

 

[dpenabill]

@scylla and @primaprime have offered very good comments.

BUT it warrants emphasizing . . .

As required byA28(2)(c), officers are also to take into account the best interests of a child directly affected by the determination and the degree of hardship that may be caused because of a loss of permanent resident status

This is one of the biggest, most influential factors in weighing the H&C factors for a PR Residency Obligation case. It is every bit as important as the reasons for remaining abroad.

On its face, your situation fits the profile for good or very good odds of a favourable outcome. That said, it is possible there are collateral circumstances that can influence how this goes for you. Matters that could improve or hurt your odds.

The nature and extent of your actual relationship with your children, for example, could be such as to bolster your odds or to diminish them. Depending.

The nature and particulars of your personal history can be a significant factor . . . going both ways, likewise depending on the details. Others have mentioned, for example, how your reasons for remaining abroad is a key consideration. I disagree that in a case like this that this is a dominant factor. Your reasons may be such as to HELP your case, but if you do not have H&C related reasons for being abroad that should not hurt your case . . . since the case will mostly depend on an evaluation of how the best interests of the minor children will be affected.

Timing is an issue. If you can afford the assistance of a Canadian lawyer, obtaining such assistance would be a good idea, even if only to determine whether there is a way to get expedited processing and how to pursue that if possible.

Otherwise, do what you can to make an obvious request for urgent processing, clearly and as concisely as possible making it obvious that you have minor children living in Canada whose parent has recently deceased and you need to return to Canada to provide and care for those children. Being clear and upfront this is a H&C application (for a PR TD). BE SURE to include documentation in the PR TD application. At the least, copies of documents showing the children's date of birth, status in Canada, and certificate of the parent's death. Statement from a social worker might be worth obtaining and submitting.