Child Tax Benefit while Parents are having Residency Obligation issue

[npatel7704]

Hello all members,

Currently we are in Canada from last one year and waiting for 2 years residency requirement to complete to renew PR.
Our child is US citizen and entered into Canada on visitor status along with us.
We did not apply his PR due to our RO issue.
Since his stay is OVERSTAY, can we apply child tax benefit ? Will there be any issue related to immigration and when we apply his PR ?

Please let me know if any one had same situation and applied child tax benefit.

Thank you in advance.

 

[canuck_in_uk]

Hello all members,

Currently we are in Canada from last one year and waiting for 2 years residency requirement to complete to renew PR.
Our child is US citizen and entered into Canada on visitor status along with us.
We did not apply his PR due to our RO issue.
Since his stay is OVERSTAY, can we apply child tax benefit ? Will there be any issue related to immigration and when we apply his PR ?

Please let me know if any one had same situation and applied child tax benefit.

Thank you in advance.

You can apply for the benefit.

Why did you not apply to extend the child's visitor status??? There was no reason to let him become illegal in Canada. It had nothing to do with your residency obligation.

 

[npatel7704]

Hello
Thank you for the reply.

Lawyer suggested that they may or may not grant an extension. Hence, we did not apply.
Since he was born in USA, will CRA ask for documentation about his immigration status ?
If yes, then i think it is better not to apply.
Please let me know your opinion.

 

[canuck_in_uk]

Hello
Thank you for the reply.

Lawyer suggested that they may or may not grant an extension. Hence, we did not apply.
Since he was born in USA, will CRA ask for documentation about his immigration status ?
If yes, then i think it is better not to apply.
Please let me know your opinion.

Lawyer is an idiot. You should have applied for the extension.

Being born in the US doesn't grant any special privileges. You will be required to declare his illegal status in the PR app.

 

[dpenabill]

My sense is the lawyer's advice was a reasonable judgment call and probably the prudent course of action. Any application to IRCC can trigger a Residency Obligation examination.

I'd estimate odds of the child being issued an extension of visitor status to remain in Canada with parent who is inadmissible due to a breach of the RO, with intent for child to STAY in Canada rather than visit, were NOT good.

I do not know what the odds were that an application for an extension would trigger a RO examination of the parent, but given the consequences I'd definitely side with the lawyer's advice and NOT take that chance.

REMINDER: Section 41(b) states that a "person is inadmissible . . . in the case of a permanent resident, through failing to comply [with the Residency Obligation]." Any transaction with CBSA or IRCC involves a RISK that an official will take note of the individual's inadmissibility and pursue the procedures to adjudicate it.

This is one of those provisions governing a failure to comply with the IRPA (Immigration and Refugee Protection Act) . . . it is NOT illegal to fail to comply with such provisions in the Act in the sense there are no punitive provisions for doing so. There are potential consequences, which are mostly tied to procedures to enforce the Act (like pursue proceedings to officially adjudicate a PR's inadmissibility) BUT, for example, unless IRCC takes action and reports the PR for inadmissibility due to a breach of the RO, time the PR spends in Canada counts toward compliance and the failure to comply is totally cured once the PR has physically been present in Canada 730 days within the preceding five years.

Similarly I have NO idea why anyone here would claim a child in Canada without status is "illegal," again at least not in the sense that there is any prescribed punishment . . . to be clear, there is NOT. This is NOT the U.S. The only negative or punitive effect is possible Removal proceedings; that is, the only effect is that CBSA or IRCC can initiate proceedings to enforce the Act.

Once a parent is in compliance with the PR Residency Obligation, a brief trip to the U.S. (assuming parent still has status to travel to U.S., per U.S. immigration) with the child, will totally cure the fact the child was in Canada without status. Should cause ZERO issues in the application to sponsor child for Canadian PR status.

The fact the child is without status does cause some difficulties. Medical care in the event of an emergency looms large in my mind.


TAX BENEFITS:

Some tax questions are easier to answer than others.

The lawyer may have been able to offer advice about this. A reputable tax accountant should be able to address the question.

Generally there is no cause to worry that information reported in a tax return will be sent to CBSA or IRCC, and it appears there is no reason why CBSA or IRCC should be engaged in an investigation let alone one in which they would request CRA information about you or your family. (Ultimately, of course, where a government body has reason to conduct an investigation, the scope of that investigation can sometimes reach, where justified by particular grounds, otherwise private information held by other government bodies; thus, beyond the general and moral imperative to be honest in all dealings with the government, it is also prudent to be truthful AND consistent because one hand in government can, sometimes, reach for what is the hands of another part of the government.)

BUT that might not be the issue. I can only guess what other issues there might be. Is the child's residence with status a required element to qualify for the benefit? Again, the lawyer may have been able to offer advice about this. A reputable tax accountant should be able to answer the question. If this is the right question.

My sense is that what matters is what information CRA asks for. If CRA asks questions about or dependent on the child's immigration status in Canada, in order to qualify for the benefit, that's a clue, a big clue. If not, that too is a clue.

In any event, just like information provided to CBSA or IRCC, the best approach in filing tax returns is to be truthful and NOT conceal information.

 

[canuck_in_uk]

My sense is the lawyer's advice was a reasonable judgment call and probably the prudent course of action. Any application to IRCC can trigger a Residency Obligation examination.

I'd estimate odds of the child being issued an extension of visitor status to remain in Canada with parent who is inadmissible due to a breach of the RO, with intent for child to STAY in Canada rather than visit, were NOT good.

I do not know what the odds were that an application for an extension would trigger a RO examination of the parent, but given the consequences I'd definitely side with the lawyer's advice and NOT take that chance.

REMINDER: Section 41(b) states that a "person is inadmissible . . . in the case of a permanent resident, through failing to comply [with the Residency Obligation]." Any transaction with CBSA or IRCC involves a RISK that an official will take note of the individual's inadmissibility and pursue the procedures to adjudicate it.

This is one of those provisions governing a failure to comply with the IRPA (Immigration and Refugee Protection Act) . . . it is NOT illegal to fail to comply with such provisions in the Act in the sense there are no punitive provisions for doing so. There are potential consequences, which are mostly tied to procedures to enforce the Act (like pursue proceedings to officially adjudicate a PR's inadmissibility) BUT, for example, unless IRCC takes action and reports the PR for inadmissibility due to a breach of the RO, time the PR spends in Canada counts toward compliance and the failure to comply is totally cured once the PR has physically been present in Canada 730 days within the preceding five years.

Similarly I have NO idea why anyone here would claim a child in Canada without status is "illegal," again at least not in the sense that there is any prescribed punishment . . . to be clear, there is NOT. This is NOT the U.S. The only negative or punitive effect is possible Removal proceedings; that is, the only effect is that CBSA or IRCC can initiate proceedings to enforce the Act.

Once a parent is in compliance with the PR Residency Obligation, a brief trip to the U.S. (assuming parent still has status to travel to U.S., per U.S. immigration) with the child, will totally cure the fact the child was in Canada without status. Should cause ZERO issues in the application to sponsor child for Canadian PR status.

The fact the child is without status does cause some difficulties. Medical care in the event of an emergency looms large in my mind.


TAX BENEFITS:

Some tax questions are easier to answer than others.

The lawyer may have been able to offer advice about this. A reputable tax accountant should be able to address the question.

Generally there is no cause to worry that information reported in a tax return will be sent to CBSA or IRCC, and it appears there is no reason why CBSA or IRCC should be engaged in an investigation let alone one in which they would request CRA information about you or your family. (Ultimately, of course, where a government body has reason to conduct an investigation, the scope of that investigation can sometimes reach, where justified by particular grounds, otherwise private information held by other government bodies; thus, beyond the general and moral imperative to be honest in all dealings with the government, it is also prudent to be truthful AND consistent because one hand in government can, sometimes, reach for what is the hands of another part of the government.)

BUT that might not be the issue. I can only guess what other issues there might be. Is the child's residence with status a required element to qualify for the benefit? Again, the lawyer may have been able to offer advice about this. A reputable tax accountant should be able to answer the question. If this is the right question.

My sense is that what matters is what information CRA asks for. If CRA asks questions about or dependent on the child's immigration status in Canada, in order to qualify for the benefit, that's a clue, a big clue. If not, that too is a clue.

In any event, just like information provided to CBSA or IRCC, the best approach in filing tax returns is to be truthful and NOT conceal information.

Extending the child's visitor status had nothing to do with the parent meeting the RO and would not have triggered an investigation. It was not the parents' application and at no point would they have had to state that in the child's app that they themselves are in breach of the RO.

No status means that a person is in Canada illegally. It doesn't matter if it is a child or not. At no point was it stated that the child's illegal status would affect a PR app.

 

[dpenabill]

Extending the child's visitor status had nothing to do with the parent meeting the RO and would not have triggered an investigation. It was not the parents' application and at no point would they have had to state that in the child's app that they themselves are in breach of the RO.

No status means that a person is in Canada illegally. It doesn't matter if it is a child or not. At no point was it stated that the child's illegal status would affect a PR app.

Regarding the statement: "No status means that a person is in Canada illegally."

If your point, using the term "illegal," is merely technical, like saying overtime parking is illegal, point taken. Overtime parking is indeed illegal. And so is overstaying a visa. In regards to which, however, in terms of the severity of the "offence" as such, there is a fine for overtime parking. There is NO fine for overstaying without status.


Regarding application to extend child's visitor status:

At the risk, apparently, of addressing such issues like an "idiot" (or so you say) . . . To obtain an extension of visitor's status for the child a parent needs to make and sign the application (or validate it if online application is made), and in that application make numerous specific representations as to the particular facts and circumstances. Many items in the application will pose issues in the circumstances here. The application must reveal the original purpose of coming to Canada, the current purpose, representations as to support, AND especially the names of the parent(s) with whom the child is staying in Canada. The situation is one in which IRCC is NOT likely to grant an extension UNLESS the parent has commenced an application to sponsor the child's PR. In the meantime, enough information will be revealed to involve SOME RISK that IRCC will inquire into the validity of the parent's status in Canada, thus some risk of a Residency Obligation examination.

While I cannot guess just how much risk there is, in this, I do know that the conventional wisdom emphatically urges inadmissible PRs, inadmissible due to not being in compliance with the RO, to totally avoid engaging in any transactions with IRCC (until their non-compliance is cured by staying in Canada), to avoid the risk of inviting scrutiny of their status that could lead to a RO compliance examination. For obvious reasons.

That is, it is clear there is some RISK of triggering a RO investigation or examination.

There is a big risk of it if the parent actually makes a sponsored family class application for the child's PR, since valid status of the sponsor is a requirement. (And this would ordinarily be done concurrent with an application to extend status PENDING the outcome of the PR application.)

Given the potential consequences, any application to IRCC involves a risk I'd guess a lawyer might recommend against taking.

And, it appears, that is indeed what a lawyer has recommended. Going out on a limb, I doubt this is mere coincidence.

 

[canuck_in_uk]

Regarding the statement: "No status means that a person is in Canada illegally."

If your point, using the term "illegal," is merely technical, like saying overtime parking is illegal, point taken. Overtime parking is indeed illegal. And so is overstaying a visa. In regards to which, however, in terms of the severity of the "offence" as such, there is a fine for overtime parking. There is NO fine for overstaying without status.


Regarding application to extend child's visitor status:

At the risk, apparently, of addressing such issues like an "idiot" (or so you say) . . . To obtain an extension of visitor's status for the child a parent needs to make and sign the application (or validate it if online application is made), and in that application make numerous specific representations as to the particular facts and circumstances. Many items in the application will pose issues in the circumstances here. The application must reveal the original purpose of coming to Canada, the current purpose, representations as to support, AND especially the names of the parent(s) with whom the child is staying in Canada. The situation is one in which IRCC is NOT likely to grant an extension UNLESS the parent has commenced an application to sponsor the child's PR. In the meantime, enough information will be revealed to involve SOME RISK that IRCC will inquire into the validity of the parent's status in Canada, thus some risk of a Residency Obligation examination.

While I cannot guess just how much risk there is, in this, I do know that the conventional wisdom emphatically urges inadmissible PRs, inadmissible due to not being in compliance with the RO, to totally avoid engaging in any transactions with IRCC (until their non-compliance is cured by staying in Canada), to avoid the risk of inviting scrutiny of their status that could lead to a RO compliance examination. For obvious reasons.

That is, it is clear there is some RISK of triggering a RO investigation or examination.

There is a big risk of it if the parent actually makes a sponsored family class application for the child's PR, since valid status of the sponsor is a requirement. (And this would ordinarily be done concurrent with an application to extend status PENDING the outcome of the PR application.)

Given the potential consequences, any application to IRCC involves a risk I'd guess a lawyer might recommend against taking.

And, it appears, that is indeed what a lawyer has recommended. Going out on a limb, I doubt this is mere coincidence.

No one said that there is a fine for overstaying.

IRCC has granted extensions in this situation many times before. The parents do not need to provide Residency Obligation information. It is not their application. Signing on behalf of the child does not make it their application.