Dear Dpenabill, your message is encouraging. Thank you for the detailed analysis and advice on my case.
Application for PRTD H&C reason, death of spouse
- Thread starter Father2020
- Start date
Very sorry for you loss.
A few additional thoughts (although I think @dpenabill covered well) - note, I'm not a lawyer, but some suggestions on things that a lawyer could help with. Primarily helping you use the correct terminology and legal status of various points, and what documentation you can provide / obtain quickly to help buttress your case that this is urgent.
First, you say your spouse, I assume this means that you were not divorced or legally separated, just living apart. Usually that would mean that you are the sole surviving parent and legal guardian, even if your older child has been given some temporary guardianship. In other words, you are the sole person with legal responsibility for the minor children.
Personally I think the fact the sibling of the minor children is an adult is a red herring - he can assist but he does not have the legal responsibility for them in the same way the parent does - even if he is voluntarily assisting. But a lawyer can help specify the correct phrasing so that the situation is clear.
It may help, in addition, to have certain documentation - possibly letters from the social services agency that I understand is involved?
Note this does not necessarily mean that a lawyer must file all all of this or prepare your application for PRTD. But hitting the right "notes" with correct documentation and terminology may help it get the necessary attention for urgent treatment.
I don't know whether this is specifically immigration-related enough to hire a separate lawyer. Presumably there is a lawyer involved to deal with the estate and the children, that lawyer should know enough to provide answers (or consult with other lawyers as needed on immigration-related matters). That lawyer should at minimum know/be able to recommend when a lawyer with specialised knowledge is needed.
I would also tend to agree that the reason for the urgent processing/approval of the requested PRTD is primarily the matter of the minor children; while there may be issues on the record about your compliance with residency obligation, the matter at hand right now is the care of minors who are Canadian citizens, resident in Canada, who have lost their parent and the sole surviving parent needs to be there.
A few additional thoughts (although I think @dpenabill covered well) - note, I'm not a lawyer, but some suggestions on things that a lawyer could help with. Primarily helping you use the correct terminology and legal status of various points, and what documentation you can provide / obtain quickly to help buttress your case that this is urgent.
First, you say your spouse, I assume this means that you were not divorced or legally separated, just living apart. Usually that would mean that you are the sole surviving parent and legal guardian, even if your older child has been given some temporary guardianship. In other words, you are the sole person with legal responsibility for the minor children.
Personally I think the fact the sibling of the minor children is an adult is a red herring - he can assist but he does not have the legal responsibility for them in the same way the parent does - even if he is voluntarily assisting. But a lawyer can help specify the correct phrasing so that the situation is clear.
It may help, in addition, to have certain documentation - possibly letters from the social services agency that I understand is involved?
Note this does not necessarily mean that a lawyer must file all all of this or prepare your application for PRTD. But hitting the right "notes" with correct documentation and terminology may help it get the necessary attention for urgent treatment.
I don't know whether this is specifically immigration-related enough to hire a separate lawyer. Presumably there is a lawyer involved to deal with the estate and the children, that lawyer should know enough to provide answers (or consult with other lawyers as needed on immigration-related matters). That lawyer should at minimum know/be able to recommend when a lawyer with specialised knowledge is needed.
I would also tend to agree that the reason for the urgent processing/approval of the requested PRTD is primarily the matter of the minor children; while there may be issues on the record about your compliance with residency obligation, the matter at hand right now is the care of minors who are Canadian citizens, resident in Canada, who have lost their parent and the sole surviving parent needs to be there.
Dear Armoured, many thanks! I will definately use your advice to receive some kind of support from social workers.
Unfortunately being a legal guardian means almost all the responsibility that parent has. And that is regardless if that person is a complete stranger, granny, uncle, aunt or an older sibling. So yes at the time being his oldest child is responsible for the well being of younger siblings as well. (that they are fed, they attend school, they do not commit crime and that they are not unsupervised, depending on the age and action).
Of course it was needed that somebody would take the guardianship in Canada otherwise those children would be taken to the (sorry I use just simple word) orphanage, even if for a temporary amount of time until they could either reunite with their parent that does have custody or until a legal guardian is assigned to them.
However because of that action it is already shown that when it comes to those children staying in Canada there is a way for them to stay (under guardianship of older sibling until they will turn 18).
And while providing money on the table, he was still PR with PR responsibilities. And under normal circumstances economical decisions are not taken as a H&C when it comes to RO. Which again means being on merci of the officer deciding his PRTD application.
There are certain reasons that can be rather risky, also he did not mention them directly they are most probable there.
1. Age of those 2 remaining minors.
If the oldest one is already 19 and he referenced to the remaining 2 as teenagers (10+), there is a big question just how old they are at the moment. Especially if it is more like the middle one being around 16-17 while the youngest being maybe 13-14, he has rather uphill battle to fight. If ever he will get caught into the fight for appeal, within those maybe 2 years or so, 2 children will be now adult leaving the youngest in the age of getting first driving license (G1 for Ontario). In other words his best interests will be slipping away given how old those children will be.
2. How often did he visit Canada and when did he actually leave to live abroad. He estimates only app. 400 days that can be counted and as now expired PR card (the main reason why he needs PRTD). Again if we wants to play the way that he has to be physically with children as that is the best interest for them (given that there is a volunteer legal guardian there that can supervise them for the time being in a similar way their mother did, he has to explain why he is needed close to them as well), he needs to show connection to those children and how attached they were to him when it come to be with him.
However if for example 4 years ago he packed his luggage and went to earn money abroad, barely spending much time with them, that will be harder to prove.
3. His reasons to live abroad. Again I can only speculate that most likely it was better paid job, which in general is no reason for PRTD application. He could argue that the area they were living in had high unemployment rate. But then again Canada is big and if he was comfy to live several hours by plane away abroad, he could do the same thing and go to a different province in order to earn money. That way he could keep his RO as well.
There are things that were not told here, and I guess it is actually more complicated than what would it seem.
I guess the idea was maybe for him to go work abroad while the wife was sitting in Canada (I am not sure if she was born Canadian or naturalized). And the plan was, that if ever he would not manage to maintain PR, she would readily sponsor him again. And that is why most likely he did not take RO obligations too seriously as he could just walk through USA borders back into Canada (and was also in not much hurry to renew PR).
However Corona came and then his wife has died and suddenly USA visa are really hard to get with all those closed borders, and the person that could sponsor him back is no more.
Because of all these assumptions and speculations, I was still advising to try to somehow go through USA if possible, as for him that is technically the way with the highest success rate.
As I said, I'm not a lawyer; some of these aspects really need a lawyer to properly formulate.
He referred to a temporary guardianship (how was this done? by court/social services?); as I understand this is not intended to supplant on a permanent basis permanent guardianship or legal custody. Current marital status matters. My point is that is likely not a determination by anyone that this arrangement is in the long-term best interests of the children but a temporary measure dictated by circumstances and immediate needs - the older sibling is responsible for the time being, but does not mean that this automatically will become permanent.
Your other points are reasonable questions (re long term PR situation, how much time with the children, etc). Obviously there is some discretion on the part of IRCC (likely subject to appeal) and we do not know the full story, nor the long-term plans in terms of residing in Canada. So I'm not opining on that - noone who doesn't know the full story can, really.
But in the immediate, the question is whether H&C considerations based on interests of the children will 'override' to some greater or lesser degree what other concerns may exist. As @dpenabill noted, this is a powerful H&C consideration. Legal counsel may be better placed to advise (as I suggested) on how to formulate this (urgent) PRTD request (i.e. what terms and specific references will have most likelihood of success), and also as to whether there are better options.
Again just my assumptions.
I would reasonably doubt that something like temporary guardianship was setup (if such thing is even possible). For one obvious reason. At the moment their father does not know if and when will he be able to return to Canada or if and when children (those that will be still minor) will follow him to his current country of residency.
So in such situation you can either setup something that will have to be renewed like every x day (for example every 3 months), which would be rather annoying to say the least; or until certain thing will happen (for example father will withdraw the agreement given to the oldest child) and that is most likely what happened. Which means that the oldest one is most likely responsible either until father will withdraw it or until those children will turn 18 (whatever will come first).
Unfortunately he has no right for PRTD according to the law, as he does not fulfill RO. With that he has to use the grey area of H&C.
And that area is very very grey. As there is no specific law outlined (also there are recommendation what shall the officer take into account), it all depends on how this or that officer or judge will see it. And here you can already see how 2 people looking and the same set of information have very different option on how strong or weak this case is.
@dpenabill see it as case of a caring father with mostly younger children (maybe barely teenagers) and with the fact that those children are well established in Canada, so they should not leave but at the same time they need their father close by (especially after mother has died).
I see it as older teenagers, where father has become mostly a credit card for some time, and where those children do not really need him to be in Canada as a must as long as he will keep sending money. And at the end of the day they can go all together to visit him instead of him visiting them once a year. The decision to outsmart the RO system was taken long ago (3 or 4 years ago). But with the unpredictable 2020, that decision is now coming back to haunt him. It is very logical to ask why could not he work in Canada (there certainly was work possibility back in 2017-2018). This is something you cannot explain easily with best interest of a child (health care is mostly free in Canada - especially for children), if there are so many just growing up with 1 parent and they are still managing by.
So you can see that he can get people thinking like @dpenabill or like me deciding his case. Now all he has there is to prepare best looking sad story and hope to get through. And because this is just a matter of luck (who will be deciding that case), his best chances are actually to try to return in Canada and then fight that battle from inside. As that is the only option that offers not to alert CIC about his current status and that he does not meet RO (of course only if they will not report him). That is also the only way that will guarantee that he can return to Canada (while he is PR they have to let him in when he will show up on a border crossing).
My understanding is that temporary guardianship is very much a thing - and perhaps not unusual in circumstances where the surviving parent is not physically present. But again, I readily admit not a lawyer and I assume the details vary by province.
The rest - we don't know the full story and / or what interpretation IRCC officers will take and those details will likely play a role in what lawyers suggest as advisable. It may indeed be that travelling through USA is preferable, but I got the impression that wasn't practical in the circumstances.
@Father2020
I had a family friend who had a vaguely similar situation to yours. I highly advise speaking to a lawyer, even just for an initial consultation call - you will get a in-depth insight that not many here could provide you (understandably so).
Are you planning on staying in Canada or will you intend on moving back - the border route would be extremely useful if you intend on staying in Canada for at least 2 years.
I had a family friend who had a vaguely similar situation to yours. I highly advise speaking to a lawyer, even just for an initial consultation call - you will get a in-depth insight that not many here could provide you (understandably so).
Are you planning on staying in Canada or will you intend on moving back - the border route would be extremely useful if you intend on staying in Canada for at least 2 years.
BOYX, thank you for the comment.
I spoke to the social worker who looks after the children. He plans to write a letter to the immigration office in support of my application. Hope it can be useful.
I spoke to the social worker who looks after the children. He plans to write a letter to the immigration office in support of my application. Hope it can be useful.
Just to final my story. I received PRTD and now I am with my children. Thank you all for the discussion and advise!
Glad to hear that, and sorry again for your family's loss.
Obviously you have other immediate concerns right now, but when you have time in future, a short summary of how you approached and what happened may be useful to others.
Short summary: I described the situation in the cover letter, filled out the forms and attached a letter from the social worker, in which he asked to resolve the issue urgently in connection with the best interests of the children.