I understand that this thread is old and has now come up again because others have found themselves in similar situations. I certainly hope the original OP did not follow this advice:
iarblue said:
. . . But on your app make sure you do say you have a child,the medicals are not needed unless you are sponsoring the child,and as for visits if she does not sign a letter stating that you are allowed to bring this child before the age of 18 you will never get him to visit Canada you need his ex wife to sign a letter allowing you to travel with this child.You will never get past customs,immigration in the airport without it.
ashleighash said:
We never plan on having the child visit Canada or leaving at any point or time in his life.
iarblue said:
Then you dont have to worry about his medicals or anything else.Just make sure he does put him as a dependant in the app and it will be fine.
I sure hope the OP did not listen to this advice. Here's what I would have said:
Never say never. Your husband has an obligation to his son - whether he plans to bring him to Canada or not - and CIC is not going to "be comfortable" (for lack of a better way to put it) with anything that looks like he is trying to walk away from that obligation . . . and I'm not talking about child support. Do NOT interpret this to mean that I'm implying that is what he's trying to do - I'm not. But CIC will interpret it that way and they will do whatever it takes to stop that from happening. I just recently read about a man whose application was refused because he could not compel examination for his two daughters - aged 19 and 21 - whom he hadn't seen since they were toddlers! He was in Canada, they are in New Zealand! Hopefully that helps you see how serious CIC is about the "dependent child" issue.
Forget about trying to "prove" that you are not going to sponsor his son - you're focusing in the wrong direction. The child HAS to be included on the application and HAS to be medically examined - even if he is not immigrating. That is the very minimum requirement. It is not uncommon for an ex to be fearful that the other parent immigrating means that, somehow, the child will be stolen from them and whisked off to Canada. The reality is that there is absolutely no chance of this happening. Even if the child was designated as an "accompanying" dependent, there would be no way that CIC would issue a PR visa for the child without the other parent's written consent. In fact, the child would not even be able to enter Canada as a visitor without written authorization from the absent parent. So, even if your husband wanted to bring his son to Canada - he could not do it without her written authorization.
That said, having the child medically examined protects him for the future - and CIC is all about the "best interest of the child". Unless the medical examination happens now - when his father immigrates - it would be absolutely impossible for his son to ever come to Canada in the future, even if something happened to his mother. You are going to have a fight on your hands if you try to circumvent that - it would have to come down to the mother absolutely refusing to allow examination and your husband having no recourse to change that. However, considering the fact that your husband still lives in the same country as his son and
has legal access to him (even if the mother is interfering with that), CIC is not likely to believe that he cannot somehow manage to get the child examined. Bottom line: it's imperative that he works it out in whatever way he can. He does not need the mother's permission to take the child to a DMP and have him examined. It is a very brief, non-invasive procedure that involves no more than a chest xray, urinalysis, and simple physical exam of sight, hearing, motor skills, etc. I don't think they even take blood from anyone under 14 yrs of age. The child does not need a passport to be examined (and doesn't need one to be included on the application either, at least as a non-accompanying dependent).
There is absolutely no way that the child having this examination gives your husband any ability whatsoever to take him from his home country, or from his mother - so no need for her to fear it, and if he took her to court over it, he would win. I encourage you both not to focus on how you can convince CIC that the child is not immigrating - because they don't care. They want to protect his future right to be sponsored by his father - because he is too young right now to make that choice for himself. Here's some further information from the immigration processing manual - oh, also: you do not need to have a copy of the custody agreement unless the child is immigrating, and CIC really doesn't care whether your husband is honouring his child support obligation. They leave that to the proper agencies in the home country. The obligation they do take seriously is your husband's responsibility to make sure his child will not end up orphaned and homeless one day.
From Section 5.12 of the
OP2 Processing Manual:
Under both the previous legislation and under IRPA, both the applicant and the applicant's family members, whether accompanying or not, must meet the requirements of the legislation. There are no exceptions to the requirement that all family members must be declared. With few exceptions, this also means that all family members must be examined as part of the process for achieving permanent residence. Officers should be open to the possibility that a client may not be able to make a family member available for examination. If an applicant
has done everything in their power to have their family member examined but has failed to do so,
and the officer is satisfied that they are aware of the consequences of this (i.e., no future sponsorship possible), then a refusal of their application for non-compliance would not be appropriate.
Officers must decide on a case-by-case basis using common sense and good judgment
whether to proceed with an application even if all family members have not been examined. Some scenarios where this may likely occur include where an ex-spouse refuses to allow a child to be examined, or an overage dependant refuses to be examined.
Proceeding in this way should be a last resort and only after the officer is convinced that the applicant cannot make the family member available for examination. The applicant themselves cannot choose not to have a family member examined.
The intent of R117(9)(d), R117(10) and R117(11) is to ensure that persons whom the sponsor made a conscious decision to exclude (either by not declaring and/or not having the persons examined) from their own application for permanent residence cannot later benefit by being sponsored by this same person as a member of the family class."
The important part of this is the two points:
the applicant has done everything in their power (including getting the courts involved to compel examination) and,
the applicant cannot choose not to have a family member examined. It will be difficult, in your husband's situation, where he is still in his home country and has at least some legal access to the child, to convince an officer that he has "done everything in his power to have the child examined" and has still failed to accomplish it. They are not going to look past the fact that a family court judge can order the mother to allow your husband access to the child, and can compel the examination "in the best interest" of the child. Ultimately, that's the most important part: having the child examined so that one day, if needed or wanted by the child, your husband can apply to sponsor him to come to Canada. One personal note: I am, like you, married to someone with children from a previous marriage - and I'd advise that you really don't want to put yourself in the middle of this, even if your intention is just to make the application process easier. Let him work this out so that there is no room in the future for resentment against you if something unforeseen happens and his child can't move to Canada because you guys wanted to take short cuts today.
