Interview !
- Thread starter Frida19
- Start date
They are specifically trained to be polite, because when they are polite, people are more relaxed and more willing to open up and talk. The more they talk the more likely they are to slip-up. If you meet one who is being rude then you have met one who doesnt have a clue how to do his/her job.canadianwoman said:
OP 2 Processing Members of the Family Class
2006-11-14 1
Updates to chapter ... 4
1. What this chapter is about ... 6
2. Program objectives ... 6
3. The Act and Regulations ... 6
3.1. The forms required are shown in the following table. ..................................................................... 7
4. Instruments and delegations ... 7
4.1. Delegated powers ... 7
4.2. Delegates/designated officers ... 7
5. Departmental policy ... 8
5.1. Family class requirements ... 8
5.2. Who must complete an IMM 0008? ................................................................................................ 8
5.3. When does a family class application exist? ................................................................................... 8
5.4. Lock-in age of dependent children .................................................................................................. 8
5.5. Time limit for returning a completed IMM 0008 ............................................................................... 9
5.6. Processing priorities ... 9
5.7. Non-routine cases ... 9
5.8. Sponsorships by Canadian citizens living abroad......................................................................... 11
5.9. Assessing an application ... 11
5.10. Non-accompanying family members ......................................................................................... 11
5.11. Inadmissibility and non-accompanying family members ........................................................... 11
5.12. Exclusion from membership in the family class – R117(9)(d), R117(10) and R117(11) (former OM OP 03-19) ... 12
5.13. Who qualifies as a dependent child? ......................................................................................... 15
5.14. Human reproductive technologies ............................................................................................. 16
5.15. Establishing identity and relationship ........................................................................................ 16
5.16. Relationships of convenience ... 17
5.17. Conjugal relationships - Dissolutions of convenience ............................................................... 17
5.18. Adoptions ... 17
5.19. Medical requirements ... 17
5.20. Exceptions to medical inadmissibility ........................................................................................ 17
5.21. Criminal and security requirements ........................................................................................... 18
5.22. Misrepresentation ... 18
5.23. When must requirements be met by family members? ............................................................. 18
5.24. Sponsoring one other relative regardless of age or relationship ............................................... 18
5.25. Characteristics of conjugal relationships ................................................................................... 19
5.26. Assessment of conjugal relationships ....................................................................................... 20
5.27. Marriage in Canada ... 22
5.28. Minimum age for marriage... 23
5.29. Valid marriage: degrees of consanguinity ................................................................................. 23
5.30. Recognition of a marriage ... 24
5.31. Persons who have undergone a sex-change ............................................................................ 24
5.32. Freedom to marry ... 24
5.33. Legality of foreign divorces ... 25
5.34. Recognition of a common-law relationship ................................................................................ 26
5.35. What is cohabitation? ... 26
5.36. How can someone in Canada sponsor a common-law partner from outside Canada when the definition says “is cohabiting”? ............................................................................................ 27
5.37. When does a common-law relationship end? ........................................................................... 28
5.38. What happens if the common-law partner (principal applicant) is married to another person? 28
5.39. What happens if the sponsor’s common-law or conjugal partner relationship breaks down and the sponsor wants to sponsor a previously separated spouse? ........................................ 28
5.40. Same-sex marriages in Canada (interim departmental policy) ................................................. 29
5.41. Foreign common-law registrations and same-sex marriages ................................................... 29
5.42. Simultaneous common-law or conjugal partner relationships with two or more people (polygamous-like relationships) ................................................................................................. 29
5.43. Prohibited relationships - Common-law partners ...................................................................... 30
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5.44. Inability to cohabit due to persecution or any form of penal control .......................................... 30
5.45. What is a conjugal partner? ... 31
5.46. Can conjugal partners be substitutes for fiancé(e)s? ................................................................ 32
5.47. Assessment of conjugal partner relationships ........................................................................... 32
5.48. Prohibited relationships - Conjugal Partners ............................................................................. 34
5.49. What happens if the conjugal partner (principal applicant) is married to another person? ....... 34
5.50. Internet relationships ... 35
5.51. Switching categories between spouses, common-law partners and conjugal partners ............ 35
6. Definitions ... 36
7. Procedure: Processing an application .................................................................................................. 38
7.1. Spouses, common-law partners, conjugal partners, and dependent children (FC redesign) ....... 38
7.2. Other members of the family class ............................................................................................... 38
7.3. Creating a family class file ... 39
7.4. Time limit for submitting supporting documents or information .................................................... 39
7.5. Reviewing an application ... 39
7.6. Closing a file ... 40
7.7. What to do if a family member is added to an application during processing? ............................. 40
8. Procedure: Conducting interviews... 41
9. Procedure: Establishing identity and relationship ................................................................................ 41
10. Procedure: Ability of sponsor to meet sponsorship requirements .................................................... 42
10.1. Financial test - sponsor ... 42
10.2. Change in family size ... 42
10.3. Sponsors who do not meet the income test .............................................................................. 43
10.4. Reassessing a financial test ... 43
10.5. Sponsors who may be subject to an A44(1) report ................................................................... 43
10.6. Changes in a sponsor's circumstances ..................................................................................... 44
10.7. Sponsorships from persons residing in Quebec........................................................................ 44
11. Procedure: Assessment of adequate arrangements ........................................................................ 44
12. Procedure: Identifying a relationship of convenience ....................................................................... 45
12.1. Marriage of convenience ... 45
12.2. Common-law partnership of convenience ................................................................................. 45
12.3. Conjugal partner relationship of convenience ........................................................................... 45
12.4. Adoptions of convenience ... 45
12.5. Conjugal relationships—Dissolutions of convenience ............................................................... 45
13. Procedure: Unable to establish that a marriage, common-law relationship or conjugal partner relationship exists ... 45
13.1. Illegal marriage ... 45
13.2. Polygamous marriages ... 46
13.3. No common-law relationship or conjugal partner relationship .................................................. 47
14. Procedure: Assessment of claim that a dependent child is a student .............................................. 47
14.1. Documentation ... 47
14.2. Full-time student ... 47
14.3. Post secondary institution... 48
14.4. Institutions that are not "educational institutions" ...................................................................... 49
14.5. Financial support for students ................................................................................................... 49
14.6. "Substantially" financially supported .......................................................................................... 50
15. Procedure: Ineligible dependent children ......................................................................................... 50
16. Procedure: Assessing eligibility at visa issuance ............................................................................. 50
17. Procedure: Issuing visas ... 51
17.1. Quebec cases ... 51
17.2. Appeal-allowed cases ... 51
18. Procedure: Refusals ... 51
18.1. Applicant is clearly not a member of the family class ................................................................ 51
18.2. Deletion of sponsored children .................................................................................................. 52
18.3. Sponsor does not meet the sponsorship requirements ............................................................. 52
18.4. Authorization to return to Canada ............................................................................................. 52
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19. Procedure: Notifying sponsors of appeal rights ................................................................................ 53
19.1 Other administrative rules related to notice of appeal rights ........................................................... 53
20. Procedure: Appeal submitted ... 53
Appendix A—Family class sponsorships ............................................................................................... 54
Appendix B—Important instructions for sponsorship appeals ............................................................... 55
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Updates to chapter
Listing by date:
2006-11-14
Section 19 has been amended to instruct officers to include a handout entitled “important instructions for sponsorship appeals” in the appeal information to be provided to sponsors in instances where the application is refused.
Appendix B entitled “Important Instructions for Sponsorship Appeals” has been added to enable officers to download the form.
2006-07-10
Changes have been made throughout this chapter and any previous version should be discarded. Of particular note are the following substantive changes:
Section 5.6 Processing priorities: This section has been slightly expanded to outline the Department’s family class processing priorities.
Section 5.7 Non-routine cases: This section has been significantly expanded to include instructions on “Work In Progress” event notation.
Sections 5.10—Non-accompanying family members, 5.11—Inadmissibility and non-accompanying family members and 5.12—Exclusion from the family class have been significantly re-written to clarify the text. The section on “Excluded family members and humanitarian and compassionate grounds” has been significantly expanded.
Section 5.23 “When must requirements be met by family members?” has been slightly altered to add clarity to “Dependent children over 22 years of age and full-time student”.
Section 5.33 “Legality of foreign divorces” has been significantly re-written and updated to reflect the current legal interpretation of when to recognize a foreign divorce.
Section 5.40 “Same-sex marriages in Canada (interim departmental policy)” has been significantly re-written to bring it in line with legal developments of the past year.
Section 10.5 “Sponsors who may be subject to an A44(1) report” has been altered slightly.
A new sub-section has been added to section 17 on Quebec cases. Sub-section 17.2 is entitled “Appeal-allowed cases” and details coding information.
2005-02-11
Changes have been made throughout this chapter and any previous version should be discarded. Of particular note are the following substantive changes:
Section 5.9 Assessing an application
Section 5.11 Inadmissibility and non-accompanying family members
Section 5.12 Exclusion from membership in the family class – provides information pursuant to the regulatory changes of August 2004 involving R117(9)(d), R117(10) and R117(11)
Section 5.17 – Dissolutions of convenience
Section 5.26 Assessment of conjugal relationships
Section 5.28 Minimum age for marriage
Section 5.30 Recognition of a marriage
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Section 5.33 Legality of foreign divorces
Section 5.40 Same-sex marriages in Canada
Section 5.51 Switching categories between spouses, conjugal partners and conjugal partners
Section 7.7 What to do if a family member is added to an application during processing
Section 12.5 Conjugal relationships – dissolutions of convenience
Section 13.1 Illegal marriage
Section 13.2 Polygamous marriages
Section 18.4 – Security certificates – deleted
Section 18.5 – Minister’s Opinions - deleted
Section 18.4 Authorization to return to Canada
Appendix A – Sample Letter to Sponsor deleted
Appendix B – Family class sponsorships (Process Chart) becomes Appendix A
2004-03-12
Changes concerning conjugal partners have been made. They affect in particular the following sections of the chapter:
Section 5.25 Characteristics of conjugal relationships
Section 5.35 What is cohabitation?
Section 5.45 What is a conjugal partner?
Section 5.47 Assessment of conjugal partner relationships
Section 6 The definitions have been revised to more clearly describe policy concerning assessment of conjugal partners.
Minor changes have also been made throughout the chapter.
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1. What this chapter is about
This chapter explains:
How to process permanent residence applications from members of the family class.
Criteria that must be met by applicants in the family class
Refusals of applications under the family class
How to handle appeals of refusals of applications in the family class
For additional information on processing applications to sponsor members of the family class, refer to IP2.
2. Program objectives
The intent of the family class program is to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives and family members.
3. The Act and Regulations
Provision
Reference in Act or Regulations
Objective relating to family reunification
A3(1)(d)
Sponsor does not meet requirements
A11(2)
Selection of members of family class
A12(1)
Right to sponsor a family member
A13(1)
Obligation of sponsorship
A13(3)
Inadmissible family member
A42
Right to appeal family class refusal
A63(1)
Inadmissible classes
A33 - A42
Exception to excessive demand
A38(2) and R24
Definition of common-law partner
R1(1)
Interpretation of common-law partner
R1(2)
Definition of family member
R1(3)
Definition of dependent child
R2
Definition of conjugal partner
R2
Definition of relative and family member
R2
Bad faith (relationships or dissolutions of convenience)
R4 and 4.1
Definition of a member of the family class
R117(1)
Adoption under 18
R117(2)
Best interests of the child
R117(3)
Child to be adopted
R117(1)(g)
Adoption over 18
R117(4)
Excluded relationships
R117(9), R117(10) and R117(11)
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Withdrawal of sponsorship application
R119
Approved sponsorship application
R120
Requirements for family member of member of family class - visa issuance
R121
Requirements for family member of member of family class in order to grant permanent residence
R122
Who may sponsor
R130
Sponsorship criteria
R133
3.1. The forms required are shown in the following table.
Name/Purpose
Number
Application for permanent residence
IMM 0008GEN Generic
Schedule 1/Background declaration
IMM 0008Esch1 Schedule 1
Application to sponsor and Undertaking
IMM 1344AE
Sponsorship Agreement
IMM 1344BE
Additional family information
IMM 5406E
Financial evaluation
IMM 1283E
4. Instruments and delegations
A6 authorizes the Minister to designate officers to carry out specific duties and powers, and to delegate authorities. It also states those ministerial authorities, which may not be delegated, specifically those relating to security certificates or national interest.
Pursuant to A6(2), the Minister of Citizenship and Immigration, has delegated powers and designated those officials authorized to carry out any purpose of any provisions legislative or regulatory in instrument IL 3 - Delegation and Designation.
For delegated/designated authorities with respect to sponsorship applications, see IP 2, Section 4.
4.1. Delegated powers
IL 3 organizes delegated powers by modules. Each module is divided into columns including column 1: provides an item number for the described powers, column 2: provides a reference to the sections or subsections of the Act and Regulations covered by the described powers and column 3: provides a description of the delegated powers. The duties and powers specific to this chapter are found in the modules listed below:
Module 1 - Permanent residence and the sponsorship of foreign nationals
Module 9 - Inadmissibility – loss of status – removal
4.2. Delegates/designated officers
The delegates or designated officers, specified in column 4 of Annexes A to H, (contained in IL 3) are authorized to carry out the powers described in column three of each module. Appendices are organized by region and by module. Officers should verify the list below for the appendix specific to their region.
Appendix A
Atlantic Region
Appendix B
Quebec Region
Appendix C
Ontario Region
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Appendix D
Prairies/NWT Region
Appendix E
BC Region
Appendix F
International Region
Appendix G
Departmental Delivery Network
Appendix H
NHQ
5. Departmental policy
5.1. Family class requirements
Members of the family class and their family members must meet the following requirements:
they must have an eligible relative, or spouse, common-law partner or conjugal partner who meets the requirements for sponsorship;
they must prove their identity, age and relationship among themselves and to their sponsor;
the applicant and family members must not be described in any of the inadmissible classes; and
they must have valid and subsisting passports or travel documents.
5.2. Who must complete an IMM 0008?
All principal applicants, regardless of age, must complete an IMM 0008GEN. Spouses, common- law partners and dependent children over 18 years of age who are included in the sponsorship, must complete a Schedule 1 - Background Declaration and Additional Family Information - (IMM 5406E). This includes spouses, common-law partners and family members whether or not they accompany the principal applicant to Canada.
When a parent sponsors two or more dependent children of any age there must be separate IMM 0008s for each child.
Dependent children under 18 years of age, or who are not accompanying the principal applicant, may be asked to complete Schedule 1 - Background Declaration and Additional Family information (IMM 5406E) in order to assist with verification of identity and relationship, or to assist in their examination. If this is done, explain that the forms are intended to serve as a source of information and not as an application for permanent residence.
5.3. When does a family class application exist?
In family class redesign cases (spouse, common-law partner, conjugal partner or dependent children); a family class application requires receipt by CPC-M of an IMM 1344AE, a properly completed and signed IMM 0008 and the correct processing fees. If any of these elements are missing, the application is returned to the sponsor.
Other family class cases require that the IMM 1344AE and correct fees have been received by CPC-M and the properly completed and signed IMM 0008 received by the visa office
See R10 and R12 for more information on what constitutes an application.
5.4. Lock-in age of dependent children
The lock-in of age for dependent children is the day CPC-M receives a completed IMM 1344AE and correct processing fees. Dependent children must be less than 22 years of age when the sponsorship application is received.
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Under 22 years means up to and including the last day before the dependent child's 22nd birthday.
Offices must date-stamp application forms as soon as they are received.
See [OP 1, General Processing Guidelines] for more information about the lock-in date.
5.5. Time limit for returning a completed IMM 0008
The following applies to members of the family class other than spouses, common-law partners, conjugal partners and dependent children including children who are being adopted outside Canada and children who are to be adopted in Canada.
Visa offices must receive an accurately completed IMM 0008GEN. This form, when signed, forms the basis for a decision on an application for permanent residence. It is also used by CIC to support A44(1) reports and is part of the record when sponsors appeal refusals.
Sponsored relatives, including those destined to Québec, have one year to submit an application to a visa office. The one-year period begins on the date of CPC-M's sponsorship assessment letter to the sponsor. This is the same date as the "date signed" contained in the sponsorship notification from CPC-M to the visa office.
Sponsors may withdraw their application and request a refund of the permanent residence application processing fee, if an IMM 0008GEN is not submitted.
5.6. Processing priorities
Applications for permanent residence from spouses, common-law partners, conjugal partners and dependent children have the highest priority, along with children to be adopted. Other members of the family class follow. These are operational, not regulatory priorities. The Department aims to process 80% of sponsorship and permanent residence applications submitted on behalf of the high-priority group of spouses, common-law partners, conjugal partners and dependent children within six months.
5.7. Non-routine cases
While every effort should be made to process high-priority cases expeditiously, it is recognized that there are circumstances where priority processing may legitimately be affected. While not exhaustive, the list below provides some examples of non-routine cases that may not be processed according to the six-month service standard..
Examples of non-routine cases:
medical, security or criminal issues;
suspected relationship or dissolution of convenience;
misrepresentation of marital status at time of marriage;
previous deportation;
inability to support self and family members due to legal obligations or other reasons;
relationship of applicant to sponsor or applicant to other family members in doubt;
marital status of family member suspect;
sponsor under investigation for violation of IRPA; or
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outstanding criminal charge against sponsor.
The following would frequently, but not necessarily, be non-routine cases:
legal validity of foreign marriage in question (marriage which occurred in country other than in processing mission's area of responsibility);
custody of children of applicant;
residence status of sponsor in doubt;
delays created by applicant not following instructions;
communications not received by mission or by applicant (unreliable postal system, mission not informed of change of address);
family members and principal applicant residing in different countries and processing coordination difficulties occur; or
applicant previously removed or excluded from Canada.
In an effort to aid analysis and identification of non-routine cases, the Work In Progress (WIP) event structure in CAIPS should be used by visa offices to flag non-routine cases. Visa offices may enter the following WIP events to identify a file that is non-routine and therefore might be processed outside of the six-month service standard. The WIP events are:
Background check delay
Medical delay
Criminality delay
Other delay
One or more of these WIP events may be entered when the cause of a possible delay is identified.
Examples of possible delays:
Medical delay—the requirement to undergo 6 months of treatment for active tuberculosis;
Criminality delay—a family member has a pending criminal charge that must be resolved before admissibility may be determined;
Other delay—an interview is required but area trips are made to the region only once or twice per year and an area trip has been completed just recently;
The sponsor is from Quebec, was found to be ineligible by Quebec, and successfully appealed;
An investigation in Canada is required prior to determining whether the sponsor is eligible.
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5.8. Sponsorships by Canadian citizens living abroad
See IP 2 for further details on who may be sponsored, sponsorship requirements and where to submit an application
5.9. Assessing an application
Officers must be satisfied that applicants and their family members, whether accompanying or not, are not inadmissible and otherwise meet all requirements of the family class [A11(1)].
Officers must also be satisfied that sponsorship requirements are still met at the time of visa issuance. If a sponsor is no longer eligible, officers must refuse the application except where the application has been approved under A25.
5.10. Non-accompanying family members
Applicants must declare all family members when applying for a visa and must again declare all family members, whether accompanying or not, prior to obtaining permanent resident status. Permanent residents who did not declare all their family members on their application are reportable under A44(1) [see also “Sponsor who may be subject to an A44(1) report” (section 10.5 below) and “Misrepresentation” (section 5.22 below)]. In addition, all family members, whether accompanying or not, must be examined, unless the appropriate officer determines that they are not required by the Act or the former Act to examine the family member [R117(10)]. Family members who were not declared and examined are excluded from the family class and may not be sponsored at a later date as per R117(9)(d) unless R117(10) applies.
Non-accompanying family members must undergo medical examinations. They must also establish that they are not inadmissible for criminal or security reasons. If the requirement for minimum necessary income is applicable, sponsors must demonstrate that they can support all family members, including non-accompanying family members.
Non-accompanying family members need not be in possession of a passport or travel document.
5.11. Inadmissibility and non-accompanying family members
All family members, whether accompanying the principal applicant or not, are required to be examined unless an officer decides otherwise. Normally, an inadmissible family member, whether accompanying or not, would render the principal applicant inadmissible. There are, however, two exceptions to this rule described in R23. The first is the separated spouse of the applicant and the second is where a child of the applicant who is in the legal custody of someone other than the applicant or an accompanying family member of the applicant, or where someone other than the applicant or accompanying family member of the applicant is empowered to act on behalf of that child by virtue of a court order or written agreement or by operation of law.
If an applicant’s separated spouse or their children who are in the custody of someone else are inadmissible, their inadmissibility would not render the applicant inadmissible. Because separated spouses can reconcile and custody arrangements for children may change, examination is required in order to safeguard the future right to sponsor them in the family class. If these family members are not examined, they cannot be sponsored in the family class in the future under R117(9)(d) unless R117(10) applies.
Satisfactory documentary proof of a separation and of custody being with someone other than the applicant is required. A separation agreement or custody papers are examples of acceptable proof.
Officers will not issue a permanent resident visa to separated spouses, common-law partners or children in the custody of someone else, even if they are examined. This is because separated spouses and partners are not members of the family class as per R117(9)(c) and because children in the custody of someone else are non-accompanying family members.
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If these family members are genuinely unavailable or unwilling to be examined, the consequences of not having them examined should be clearly explained to the applicant and reflected in the CAIPS notes. Officers may wish to have applicants sign a statutory declaration indicating they understand the consequences of failing to have the family member examined.
See also section 5.12, Exclusion from membership in the Family Class – R117(9)(d), R117(10) and R117(11) below.
5.12. Exclusion from membership in the family class – R117(9)(d), R117(10) and R117(11) (former OM OP 03-19)
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.
Where, however, the applicant has declared the person and CIC chooses not to examine the family member, for example, because of an administrative decision or for policy reasons, or due to an administrative error, the family member is not excluded from membership in the family class. However, a sponsor cannot sponsor a family member if an officer determined at the time the sponsor previously submitted their application for permanent residence:
1. that the sponsor was informed that the family member could be examined and that the sponsor was able to make the family member available for examination, but did not do so, or
2. that the family member did not appear for examination when he was able to do so.
Many of the family class cases that are currently being processed have a sponsor who immigrated to Canada under the previous legislation. Under the previous legislation, certain persons either did not have to be examined as part of the application or could not be examined due to an administrative policy or decision taken by CIC.
There are two groups of persons who fall into the above category:
The family members of an applicant for refugee status did not have to be examined as part of the application. (In addition, it should be noted that under the current Regulations, i.e., R176, the non-accompanying family members of a protected person, who is seeking to remain in Canada as a permanent resident, are not required to be examined and therefore should not be excluded from the family class in a subsequent sponsorship);
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Where an application for H&C consideration was made in Canada, CIC did not allow the overseas family members to be included as part of the application. Consequently, they were not examined.
In addition, under the previous legislation, there were situations where an application could proceed even though the applicant made a decision not to have a family member examined, namely:
where a dependent child was in the custody of the sponsor’s spouse or ex-spouse;
where the applicant was formally separated from their spouse.
Consequences of no examination:
Where CIC made the decision not to require examination of family members
As per R117(10), the exclusion of R117(9)(d) does not apply to an applicant where it is established that an officer determined, during the course of the sponsor’s own application for permanent residence, that this applicant (then a family member of the foreign national who later became a sponsor) was not required to be examined, as applicable, under IRPA or the former Act. The key notion operating here is whether it was the decision of the officer who, being fully advised of the existence of the family member through the truthful declaration of the foreign national who later became a sponsor, determined that it was not required that that family member be examined and did not require that the family member be examined. If the decision for non-examination was made by the officer, then R117(9)(d) does not apply in respect of that family member and that family member is not excluded.
Nevertheless, as per R117(11), R117(9)(d) does apply to an applicant if an officer determines that this applicant could have been examined during the sponsor’s own application for permanent residence, but that the sponsor chose not to make the applicant available for examination or that the applicant did not appear for examination. The choice in this situation rests with either the sponsor or the applicant (not with an officer of the Department) and, consequently, the applicant is excluded, pursuant to R117(9)(d) and R117(11), for not having the family members examined as part of the sponsor’s own application for permanent residence.
Separated spouse
Where a spouse was not examined as part of the application for permanent residence because the applicant and spouse were separated and examination was not required, the spouse cannot later be sponsored as a member of the family class by virtue of their relationship to the sponsor. This was true under R4(2) of the previous legislation and it is still valid under R117(9)(d) of the current legislation. To preserve the option to sponsor at a later date, the separated spouse must be examined. [(R117(9)(d) and R23)]
The relationship between the foreign national and the sponsor will be considered to be an excluded relationship where the foreign national was the sponsor’s spouse but was living separate and apart from the sponsor.
Dependent child in the custody of a former spouse
In some cases where a child was in the custody of the other parent, the applicant may have been advised, pursuant to R6(5) of the Immigration Regulations, 1978 and per R23 of the current Regulations, that the child did not have to be examined because of the custody situation. In this situation, the decision whether or not to have a child examined is definitely the applicant's decision.
The applicant should have been fully counselled by the officer on the consequences of not having the child examined, i.e., exclusion from later sponsorship in the family class by the applicant. The CAIPS notes should reflect that this counselling took place. In situations where it is evident that
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the applicant was fully counselled, the dependent child is excluded from membership in the family class by virtue of their relationship to the sponsor and cannot be sponsored by this person at a later date. This was true under R4(2) of the previous legislation and is still valid under R117(9)(d) of the current legislation.
In cases where, upon review, it is not clear that the applicant in fact made the choice not to have the child examined and/or it is not clear that the applicant understood the consequences of the choice, a review board, i.e., the IAD may conclude that the officer was in breach and that the applicant was not correctly advised. Natural justice and fairness require that the consequences of a decision of this magnitude be fully explained and understood, whether at interview or through correspondence.
Excluded family members and humanitarian and compassionate grounds
A25 requires officers and delegated authorities to examine humanitarian and compassionate factors (H&C) upon the applicant’s request. In addition, if an officer believes there are strong humanitarian and compassionate factors present in a case, the officer may on their own initiative, without the applicant specifically requesting it, put the case forward to the person with the delegated authority to approve the use of A25(1) for the case. A separate application and fee are not required.
A25 can be used by applicants to overcome being an excluded family member or any other requirement of the Act. This includes an applicant who has a sponsor who does not meet eligibility requirements.
The text that follows addresses the use of A25 in relation to R117(9)(d). This regulation excludes from the family class, persons who were not examined as non-accompanying family members at the time their sponsor made their application for permanent residence.
In considering the use of H&C for excluded family members, the officer should take into account all relevant factors including, but not limited to, those provided below.
General
The onus is on the client to understand their obligations under the law. The information guides included with application kits and visa issuance letters give clear information on the need to declare and have examined all family members including new family members.
The exclusion found in R117(9)(d) exists to encourage honesty and prevent applicants from circumventing immigration rules. Specifically, it exists to prevent applicants from later being able to sponsor otherwise inadmissible family members under the generous family class sponsorship rules when these family members would have prevented the applicant’s initial immigration to Canada for admissibility reasons (i.e., excessive demand).
The application of humanitarian and compassionate considerations may nonetheless be appropriate in cases that are exceptional and deserving from a reasonable person’s point of view.
Case-specific factors
Canada’s continuing obligations under the Convention on the Rights of the Child require that the Department consider the best interests of a child directly affected by the application whether they are explicitly mentioned by the applicant or are otherwise apparent. (For more information on the application of the policy pertaining to the best interests of the child, see OP4, section 8.3.)
Where family members were declared but not examined and it is clear that the applicant/sponsor made their best efforts to facilitate this examination and that this lack of examination was beyond the applicant’s/sponsor’s control, considering the use of H&C factors may be appropriate.
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When the client presents compelling reasons for not having disclosed the existence of a family member, it may also be appropriate to consider the use of H&C factors. For example:
a refugee presents evidence that they believed their family members were dead or that their whereabouts were unknown; or
a client presents evidence that the existence of a child was not disclosed because it would cause extreme hardship because the child was born out of wedlock in a culture that does not condone this.
Where an officer decides to put forward a case for consideration of H&C factors in the absence of a specific request from the client, the client should be informed that H&C factors are being considered and should be provided with an opportunity to present their own reasons for H&C consideration. This is procedurally fair and ensures that the decision-maker has all the information necessary before making a decision.
Should a decision be made to process an application favourably even though the applicant is excluded pursuant to R117(9)(d), the case should be coded as FCH. FCH indicates that the case is within the family class, but that H&C consideration was given. This means that the sponsorship is enforceable and the normal family class exemptions apply where applicable (i.e., excessive demand and LICO). Should the application be rejected, the sponsor has appeal rights. See OP4, section 8.2, for further information on processing family class cases under A25.
Accompanying family members not excluded
Visa offices may encounter situations where a common-law partner and dependent child of a sponsor are applying for permanent residence and these individuals were not examined at the time of the sponsor’s own pre-IRPA application for permanent residence. Common-law partners were not family members pre-IRPA so were not required to be examined. These individuals are not inadmissible under R117(9)(d). See R355. However, any children of the sponsor who met the pre-IRPA definition of dependent child should have been examined. If they are now being sponsored in the family class, then they are inadmissible under R117(9)(d). If, on the other hand, they are included in the common-law partner’s application for permanent residence as accompanying family members, then they are not being sponsored themselves as members of the family class but rather are the family members of a member of the family class and hence they are not inadmissible under R117(9)(d).
R70(4) states that,
"A foreign national who is an accompanying family member of a foreign national who is issued a permanent resident visa shall be issued a permanent resident visa, if, following an examination, it is established that
(a) the accompanying family member is not inadmissible; . . . ".
This may seem to contradict R117(9)(d). However, the intent of R117(9)(d) is that the sponsor may not sponsor a person as a member of the family class if that person was not examined as part of the sponsor's application for permanent residence. In the example given above, the child is not being sponsored as the dependent child of the sponsor, but rather as the accompanying family member of the principal applicant.
5.13. Who qualifies as a dependent child?
R2 and Section 6 in this chapter describe who qualifies as a dependent child.
In order to meet R2(b)(i) of the definition of “dependent child”, a child must be under 22 years of age and not a spouse or common-law partner on the date when the IMM 1344AE is received by CPC-M, and not a spouse or common-law partner when the visa is issued, and when they arrive in Canada.
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Not a spouse or common-law partner means that the dependent child must not be married or involved in a common-law relationship. A dependent child who is single, divorced, widowed, or whose marriage has been annulled is not a spouse. Similarly, if the dependent child was involved in a common-law relationship but that relationship no longer exists, they may be considered to meet the definition.
R2(b)(ii) & (iii) describe children over the age of 22 who may be considered dependent children if they are substantially dependent on their parents for financial support. This includes full-time students enrolled in accredited post secondary institutions or children with a physical or mental condition. In such cases, officers must ask for documentary evidence of full time attendance at school, evidence of the institution's accreditation with the relevant authority, evidence of the physical or mental condition and evidence of financial dependency on parents.
For further information on dependent children over the age of 22, see:
Assessment of a claim that a dependent child is a student, Section 14 below.
5.14. Human reproductive technologies
Biological child” in R2(a)(i) also includes a child who:
(a) is not genetically related to the parent making the application;
(b) was born through the application of assisted human reproductive technologies; and
(c) was born to the parent making the application or to the person who, at the time of the birth of the child, was that parent's spouse, common-law partner or conjugal partner.
This definition is meant to capture children born to parents through assisted human reproductive technologies, such as in vitro fertilization, who may not share a genetic relationship to those parents. In this case, the female spouse or partner must have given birth to the child. In Canadian Family Law, the spouse or common-law partner of the parent who gives birth to a child is presumed to be the other legal parent even if there is no genetic relationship to the child. If the child was born through a surrogacy arrangement, however, the child will legally be the child of the surrogate mother who gave birth until a subsequent adoption occurs that would create a legal parent/child relationship.
In these cases, documents suitable for establishing parent/child relationships are birth certificates or authorized evidence indicating that the person claiming to be the parent is the birth mother or the spouse or common-law partner of the birth mother at the time of birth. Evidence must also indicate that the parents availed themselves of assisted human reproductive technologies and that the child was subsequently born to the mother.
5.15. Establishing identity and relationship
Members of the family class must prove their relationship to their sponsor and to their family members.
The onus is on the applicant to provide evidence of their identity and relationships to their sponsor and accompanying family members. Applicants must answer questions truthfully and provide any documents necessary to establish that they are not inadmissible [A16(1)]. An applicant, who cannot provide satisfactory documentary evidence of a relationship, has the option to undergo DNA testing.
DNA testing involves the comparison of DNA profiles extracted from blood samples taken from persons claiming to be a biological father, mother or child(ren). If properly conducted, the test is considered a highly reliable means to verify a claimed relationship. This test is commercially available. (See OP 1 for more information on DNA testing.)
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5.16. Relationships of convenience
Persons who entered into a non-genuine marriage, common-law relationship, conjugal partnership or adoption in order to obtain permanent residence in Canada must be refused [R4].
In the case of a child to be adopted, the regulation excluding a relationship of convenience from the family class is R117(1)(g)(i).
Officers must have sufficient evidence to support a conclusion that a relationship is not genuine (see Identifying a relationship of convenience, Section 12 below, and OP 3 for adoptions.)
Officers must clearly explain in the case notes why the relationship is one of convenience.
Sponsors may submit an appeal of a refusal on these grounds to the Immigration Appeal Division (IAD).
5.17. Conjugal relationships - Dissolutions of convenience
A person, who dissolves a marriage or conjugal relationship and subsequently resumes a conjugal relationship in bad faith, should be refused pursuant to R4.1, if the intention was to acquire any status or privilege under the Act.
Officers must have sufficient evidence to support a conclusion that a relationship was dissolved in bad faith (see Conjugal relationships - Identifying a dissolution of convenience, Section 12.5 below).
Officers must clearly explain in the case notes why they found that the relationship was dissolved in bad faith.
Sponsors may submit an appeal of a refusal on these grounds to the Immigration Appeal Division (IAD).
5.18. Adoptions
For information on processing adoptions and orphaned family members, see OP 3.
5.19. Medical requirements
Members of the family class are medically inadmissible if they or their family members are likely to be a danger to public health or to public safety or if their admission might reasonably be expected to cause excessive demands on health or social services [A38(1)]. See Exceptions to medical inadmissibility, Section 5.20 below.
Instructions on medical examinations can be found in OP 15. That chapter also explains how to interpret medical results to determine if the applicant is medically admissible and the steps to take before informing applicants that they are refused for medical reasons.
If a member of the family class or a family member is found to be inadmissible for medical reasons, and no new information is provided (see OP 15), the application should be refused.
See OP 20 for information on Temporary Resident Permits.
5.20. Exceptions to medical inadmissibility
A38(2)(a) states that spouses, common-law partners and dependent children who are members of the family class are not inadmissible even if they have a medical condition that will result in excessive demand to health or social services.
R24 provides further exemption from medical inadmissibility that might reasonably be expected to cause excessive demand on health or social services for conjugal partners and children to be adopted.
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5.21. Criminal and security requirements
Members of the family class and their family members must be admissible to Canada under all sections of A33 - A37 relating to criminality and security.
Officers must establish admissibility through an applicant's police certificate and background reports and assessments. For more information on determining admissibility on criminal and security grounds, see the IC manual, Security and Criminal Screening of Immigrants, and ENF 2.
Applicants and their family members who are inadmissible for criminal or security reasons must be refused. See OP 20 for information on Temporary Resident Permits.
5.22. Misrepresentation
A foreign national is inadmissible for two years for withholding or misrepresenting information that is material to making a decision on an application [A40].
See ENF 2 section 9 for information on dealing with such cases.
5.23. When must requirements be met by family members?
Family members
When must requirements be met
Spouse or common-law partner
Meets the definition of spouse or common-law partner as described in section 6 below when the application is received by CPC-M, when the visa is issued and when they enter Canada.
Dependent children under 22 years of age
Is under 22 years of age and not a spouse or common-law partner when the application is received by CPC-M; and
without taking into account their age, they continue not to be married or not involved in a common-law relationship at visa issuance and when they enter Canada.
Dependent children over 22 years of age and full- time students
Since before the age of 22 or, if married or a common-law partner before the age of 22, since becoming a spouse of common- law partner they have been:
substantially dependent for financial support on their parents; and
continuously enrolled and actively pursuing a course of study at an accredited post secondary institution when the application is received by CPC-M and when the visa is issued.
Dependent children over 22 years of age and unable to be financially self- supporting due to a physical or mental condition
Since before the age of 22 have been:
substantially dependent for financial support on their parents when the application is received by CPC-M; and
continue to be substantially dependent upon their parents when the visa is issued.
Dependent children of dependent children
Is the dependent child of an accompanying dependent child [R70(5)] when the application is received and when the visa is issued.
5.24. Sponsoring one other relative regardless of age or relationship
Sponsors who do not have a living spouse or common-law partner, conjugal partner, a son or daughter, father, mother, grandparent, brother, sister, uncle, aunt, nephew or niece, who is a Canadian citizen or a permanent resident, or any relative or family member who can be sponsored as a member of the family class, may sponsor one relative regardless of age or relationship (anyone connected by blood or adoption).
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Sponsors submit information concerning family members and relatives on the Family Information Sheet. If a chosen relative is inadmissible, the sponsor may choose another relative.
5.25. Characteristics of conjugal relationships
The word “conjugal” is not defined in legislation; however, the factors that are used to determine whether a couple is in a conjugal relationship are described in court decisions.
Marriage is a status-based relationship existing from the day the marriage is legally valid until it is severed by death or divorce. A common-law relationship (and in the immigration context, a conjugal partner relationship) is a fact-based relationship which exists from the day on which the two individuals can reasonably demonstrate that the relationship meets the definition set out in the Regulations. While this is a significant difference, there are many similarities in the two types of relationships. This is because of the history of the recognition in law of common-law relationships and their definition, which includes the word “conjugal.”
The term “conjugal” was originally used to describe marriage. Then, over the years, it was expanded by various court decisions to describe “marriage-like” relationships, i.e., a man and a woman in a common-law relationship. With the M. v. H. decision in 1999, the Supreme Court of Canada further expanded the term to include same-sex common-law couples.
The word “conjugal” does not mean “sexual relations” alone. It signifies that there is a significant degree of attachment between two partners. The word “conjugal” comes from two Latin words, one meaning “join” and the other meaning “yoke,” thus, literally, the term means “joined together” or “yoked together.”
In the M. v. H. decision, the Supreme Court adopts the list of factors that must be considered in determining whether any two individuals are actually in a conjugal relationship from the decision of the Ontario Court of Appeal in Moldowich v. Penttinen. They include:
shared shelter (e.g., sleeping arrangements);
sexual and personal behaviour (e.g., fidelity, commitment, feelings towards each other);
services (e.g., conduct and habit with respect to the sharing of household chores)
social activities (e.g., their attitude and conduct as a couple in the community and with their families);
economic support (e.g., financial arrangements, ownership of property);
children (e.g., attitude and conduct concerning children)
the societal perception of the two as a couple.
From the language used by the Supreme Court throughout M. v. H., it is clear that a conjugal relationship is one of some permanence, where individuals are interdependent – financially, socially, emotionally, and physically – where they share household and related responsibilities, and where they have made a serious commitment to one another.
Based on this, the following characteristics should be present to some degree in all conjugal relationships, married and unmarried:
mutual commitment to a shared life;
exclusive – cannot be in more than one conjugal relationship at a time;
intimate – commitment to sexual exclusivity;
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interdependent – physically, emotionally, financially, socially;
permanent – long-term, genuine and continuing relationship;
present themselves as a couple;
regarded by others as a couple;
caring for children (if there are children).
People who are dating or who are thinking about marrying or living together and establishing a common-law relationship are NOT yet in a conjugal relationship, nor are people who want to live together to “try out” their relationship.
Persons in a conjugal relationship have made a significant commitment to one another. A married couple makes the commitment publicly at a specific point in time via their marriage vows and ceremony, and the marriage certificate and registration is a record of that commitment. In a common-law or conjugal partner relationship, there is not necessarily a single point in time at which a commitment is made, and there is no one legal document attesting to the commitment. Instead, there is the passage of time together, the building of intimacy and emotional ties and the accumulation of other types of evidence, such as naming one another as beneficiaries of insurance policies or estates, joint ownership of possessions, joint decision-making with consequences for one partner affecting the other, and financial support of one another (joint expenses or sharing of income, etc. When taken together, these facts indicate that the couple has come to a similar point as that of a married couple – there is significant commitment and mutual interdependence in a monogamous relationship of some permanence.
5.26. Assessment of conjugal relationships
The following are key elements that officers may use to establish whether a couple is in a conjugal relationship. These apply to spouses, common-law partners and conjugal partners.
a) Mutual commitment to a shared life to the exclusion of all other conjugal relationships
A conjugal relationship is characterized by mutual commitment, exclusivity, and interdependence and therefore cannot exist among more than two people simultaneously. The word “conjugal” includes the requirement of monogamy and, therefore, an individual cannot be in more than one conjugal relationship at one time. For example, a person cannot have a conjugal relationship with a legally married spouse and another person at the same time. Nor can a person have a conjugal relationship with two unmarried partners at the same time. These would be polygamous-like relationships and cannot be considered conjugal.
This does not, however, require that an individual in an unmarried conjugal relationship be divorced from a legally married spouse. See: What happens if the common-law partner (principal applicant) is married to another person, section 5.38 below.
The requirement of exclusivity or monogamy applies in equal measure to marriage, common-law partnership and conjugal partnership. Thus, the common-law and conjugal partner categories cannot be used to get around restrictions related to bigamy and polygamy (See section 13.2 Polygamous marriages below for further information). By the same token, common-law and conjugal partner relationships are not expected to be any more exclusive than ordinary married relationships. Proof of exclusivity is not usually required in the assessment of these relationships any more than it would be in assessing a marriage.
b) Interdependent – physically, emotionally, financially, socially
The two individuals in a conjugal relationship are interdependent – they have combined their affairs both economically and socially. The assessment of whether two individuals are in a conjugal relationship should focus on evidence of interdependency.
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The following list is a set of elements which, when taken together or in various combinations, may constitute evidence of interdependency. It should be kept in mind that these elements may be present in varying degrees and not all are necessary for a relationship to be considered conjugal.
Factor
Details
Financial aspects of the relationship
Joint loan agreements for real estate, cars, major household appliances;
Joint ownership of property, other durable goods;
Operation of joint bank accounts, joint credit cards evidence that any such accounts have existed for a reasonable period of time;
The extent of any pooling of financial resources, especially in relation to major financial commitments;
Whether one party owes any legal obligation in respect of the other.
Social aspects of the relationship
Evidence that the relationship has been declared to governmen
2006-11-14 1
Updates to chapter ... 4
1. What this chapter is about ... 6
2. Program objectives ... 6
3. The Act and Regulations ... 6
3.1. The forms required are shown in the following table. ..................................................................... 7
4. Instruments and delegations ... 7
4.1. Delegated powers ... 7
4.2. Delegates/designated officers ... 7
5. Departmental policy ... 8
5.1. Family class requirements ... 8
5.2. Who must complete an IMM 0008? ................................................................................................ 8
5.3. When does a family class application exist? ................................................................................... 8
5.4. Lock-in age of dependent children .................................................................................................. 8
5.5. Time limit for returning a completed IMM 0008 ............................................................................... 9
5.6. Processing priorities ... 9
5.7. Non-routine cases ... 9
5.8. Sponsorships by Canadian citizens living abroad......................................................................... 11
5.9. Assessing an application ... 11
5.10. Non-accompanying family members ......................................................................................... 11
5.11. Inadmissibility and non-accompanying family members ........................................................... 11
5.12. Exclusion from membership in the family class – R117(9)(d), R117(10) and R117(11) (former OM OP 03-19) ... 12
5.13. Who qualifies as a dependent child? ......................................................................................... 15
5.14. Human reproductive technologies ............................................................................................. 16
5.15. Establishing identity and relationship ........................................................................................ 16
5.16. Relationships of convenience ... 17
5.17. Conjugal relationships - Dissolutions of convenience ............................................................... 17
5.18. Adoptions ... 17
5.19. Medical requirements ... 17
5.20. Exceptions to medical inadmissibility ........................................................................................ 17
5.21. Criminal and security requirements ........................................................................................... 18
5.22. Misrepresentation ... 18
5.23. When must requirements be met by family members? ............................................................. 18
5.24. Sponsoring one other relative regardless of age or relationship ............................................... 18
5.25. Characteristics of conjugal relationships ................................................................................... 19
5.26. Assessment of conjugal relationships ....................................................................................... 20
5.27. Marriage in Canada ... 22
5.28. Minimum age for marriage... 23
5.29. Valid marriage: degrees of consanguinity ................................................................................. 23
5.30. Recognition of a marriage ... 24
5.31. Persons who have undergone a sex-change ............................................................................ 24
5.32. Freedom to marry ... 24
5.33. Legality of foreign divorces ... 25
5.34. Recognition of a common-law relationship ................................................................................ 26
5.35. What is cohabitation? ... 26
5.36. How can someone in Canada sponsor a common-law partner from outside Canada when the definition says “is cohabiting”? ............................................................................................ 27
5.37. When does a common-law relationship end? ........................................................................... 28
5.38. What happens if the common-law partner (principal applicant) is married to another person? 28
5.39. What happens if the sponsor’s common-law or conjugal partner relationship breaks down and the sponsor wants to sponsor a previously separated spouse? ........................................ 28
5.40. Same-sex marriages in Canada (interim departmental policy) ................................................. 29
5.41. Foreign common-law registrations and same-sex marriages ................................................... 29
5.42. Simultaneous common-law or conjugal partner relationships with two or more people (polygamous-like relationships) ................................................................................................. 29
5.43. Prohibited relationships - Common-law partners ...................................................................... 30
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5.44. Inability to cohabit due to persecution or any form of penal control .......................................... 30
5.45. What is a conjugal partner? ... 31
5.46. Can conjugal partners be substitutes for fiancé(e)s? ................................................................ 32
5.47. Assessment of conjugal partner relationships ........................................................................... 32
5.48. Prohibited relationships - Conjugal Partners ............................................................................. 34
5.49. What happens if the conjugal partner (principal applicant) is married to another person? ....... 34
5.50. Internet relationships ... 35
5.51. Switching categories between spouses, common-law partners and conjugal partners ............ 35
6. Definitions ... 36
7. Procedure: Processing an application .................................................................................................. 38
7.1. Spouses, common-law partners, conjugal partners, and dependent children (FC redesign) ....... 38
7.2. Other members of the family class ............................................................................................... 38
7.3. Creating a family class file ... 39
7.4. Time limit for submitting supporting documents or information .................................................... 39
7.5. Reviewing an application ... 39
7.6. Closing a file ... 40
7.7. What to do if a family member is added to an application during processing? ............................. 40
8. Procedure: Conducting interviews... 41
9. Procedure: Establishing identity and relationship ................................................................................ 41
10. Procedure: Ability of sponsor to meet sponsorship requirements .................................................... 42
10.1. Financial test - sponsor ... 42
10.2. Change in family size ... 42
10.3. Sponsors who do not meet the income test .............................................................................. 43
10.4. Reassessing a financial test ... 43
10.5. Sponsors who may be subject to an A44(1) report ................................................................... 43
10.6. Changes in a sponsor's circumstances ..................................................................................... 44
10.7. Sponsorships from persons residing in Quebec........................................................................ 44
11. Procedure: Assessment of adequate arrangements ........................................................................ 44
12. Procedure: Identifying a relationship of convenience ....................................................................... 45
12.1. Marriage of convenience ... 45
12.2. Common-law partnership of convenience ................................................................................. 45
12.3. Conjugal partner relationship of convenience ........................................................................... 45
12.4. Adoptions of convenience ... 45
12.5. Conjugal relationships—Dissolutions of convenience ............................................................... 45
13. Procedure: Unable to establish that a marriage, common-law relationship or conjugal partner relationship exists ... 45
13.1. Illegal marriage ... 45
13.2. Polygamous marriages ... 46
13.3. No common-law relationship or conjugal partner relationship .................................................. 47
14. Procedure: Assessment of claim that a dependent child is a student .............................................. 47
14.1. Documentation ... 47
14.2. Full-time student ... 47
14.3. Post secondary institution... 48
14.4. Institutions that are not "educational institutions" ...................................................................... 49
14.5. Financial support for students ................................................................................................... 49
14.6. "Substantially" financially supported .......................................................................................... 50
15. Procedure: Ineligible dependent children ......................................................................................... 50
16. Procedure: Assessing eligibility at visa issuance ............................................................................. 50
17. Procedure: Issuing visas ... 51
17.1. Quebec cases ... 51
17.2. Appeal-allowed cases ... 51
18. Procedure: Refusals ... 51
18.1. Applicant is clearly not a member of the family class ................................................................ 51
18.2. Deletion of sponsored children .................................................................................................. 52
18.3. Sponsor does not meet the sponsorship requirements ............................................................. 52
18.4. Authorization to return to Canada ............................................................................................. 52
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19. Procedure: Notifying sponsors of appeal rights ................................................................................ 53
19.1 Other administrative rules related to notice of appeal rights ........................................................... 53
20. Procedure: Appeal submitted ... 53
Appendix A—Family class sponsorships ............................................................................................... 54
Appendix B—Important instructions for sponsorship appeals ............................................................... 55
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Updates to chapter
Listing by date:
2006-11-14
Section 19 has been amended to instruct officers to include a handout entitled “important instructions for sponsorship appeals” in the appeal information to be provided to sponsors in instances where the application is refused.
Appendix B entitled “Important Instructions for Sponsorship Appeals” has been added to enable officers to download the form.
2006-07-10
Changes have been made throughout this chapter and any previous version should be discarded. Of particular note are the following substantive changes:
Section 5.6 Processing priorities: This section has been slightly expanded to outline the Department’s family class processing priorities.
Section 5.7 Non-routine cases: This section has been significantly expanded to include instructions on “Work In Progress” event notation.
Sections 5.10—Non-accompanying family members, 5.11—Inadmissibility and non-accompanying family members and 5.12—Exclusion from the family class have been significantly re-written to clarify the text. The section on “Excluded family members and humanitarian and compassionate grounds” has been significantly expanded.
Section 5.23 “When must requirements be met by family members?” has been slightly altered to add clarity to “Dependent children over 22 years of age and full-time student”.
Section 5.33 “Legality of foreign divorces” has been significantly re-written and updated to reflect the current legal interpretation of when to recognize a foreign divorce.
Section 5.40 “Same-sex marriages in Canada (interim departmental policy)” has been significantly re-written to bring it in line with legal developments of the past year.
Section 10.5 “Sponsors who may be subject to an A44(1) report” has been altered slightly.
A new sub-section has been added to section 17 on Quebec cases. Sub-section 17.2 is entitled “Appeal-allowed cases” and details coding information.
2005-02-11
Changes have been made throughout this chapter and any previous version should be discarded. Of particular note are the following substantive changes:
Section 5.9 Assessing an application
Section 5.11 Inadmissibility and non-accompanying family members
Section 5.12 Exclusion from membership in the family class – provides information pursuant to the regulatory changes of August 2004 involving R117(9)(d), R117(10) and R117(11)
Section 5.17 – Dissolutions of convenience
Section 5.26 Assessment of conjugal relationships
Section 5.28 Minimum age for marriage
Section 5.30 Recognition of a marriage
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Section 5.33 Legality of foreign divorces
Section 5.40 Same-sex marriages in Canada
Section 5.51 Switching categories between spouses, conjugal partners and conjugal partners
Section 7.7 What to do if a family member is added to an application during processing
Section 12.5 Conjugal relationships – dissolutions of convenience
Section 13.1 Illegal marriage
Section 13.2 Polygamous marriages
Section 18.4 – Security certificates – deleted
Section 18.5 – Minister’s Opinions - deleted
Section 18.4 Authorization to return to Canada
Appendix A – Sample Letter to Sponsor deleted
Appendix B – Family class sponsorships (Process Chart) becomes Appendix A
2004-03-12
Changes concerning conjugal partners have been made. They affect in particular the following sections of the chapter:
Section 5.25 Characteristics of conjugal relationships
Section 5.35 What is cohabitation?
Section 5.45 What is a conjugal partner?
Section 5.47 Assessment of conjugal partner relationships
Section 6 The definitions have been revised to more clearly describe policy concerning assessment of conjugal partners.
Minor changes have also been made throughout the chapter.
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1. What this chapter is about
This chapter explains:
How to process permanent residence applications from members of the family class.
Criteria that must be met by applicants in the family class
Refusals of applications under the family class
How to handle appeals of refusals of applications in the family class
For additional information on processing applications to sponsor members of the family class, refer to IP2.
2. Program objectives
The intent of the family class program is to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives and family members.
3. The Act and Regulations
Provision
Reference in Act or Regulations
Objective relating to family reunification
A3(1)(d)
Sponsor does not meet requirements
A11(2)
Selection of members of family class
A12(1)
Right to sponsor a family member
A13(1)
Obligation of sponsorship
A13(3)
Inadmissible family member
A42
Right to appeal family class refusal
A63(1)
Inadmissible classes
A33 - A42
Exception to excessive demand
A38(2) and R24
Definition of common-law partner
R1(1)
Interpretation of common-law partner
R1(2)
Definition of family member
R1(3)
Definition of dependent child
R2
Definition of conjugal partner
R2
Definition of relative and family member
R2
Bad faith (relationships or dissolutions of convenience)
R4 and 4.1
Definition of a member of the family class
R117(1)
Adoption under 18
R117(2)
Best interests of the child
R117(3)
Child to be adopted
R117(1)(g)
Adoption over 18
R117(4)
Excluded relationships
R117(9), R117(10) and R117(11)
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Withdrawal of sponsorship application
R119
Approved sponsorship application
R120
Requirements for family member of member of family class - visa issuance
R121
Requirements for family member of member of family class in order to grant permanent residence
R122
Who may sponsor
R130
Sponsorship criteria
R133
3.1. The forms required are shown in the following table.
Name/Purpose
Number
Application for permanent residence
IMM 0008GEN Generic
Schedule 1/Background declaration
IMM 0008Esch1 Schedule 1
Application to sponsor and Undertaking
IMM 1344AE
Sponsorship Agreement
IMM 1344BE
Additional family information
IMM 5406E
Financial evaluation
IMM 1283E
4. Instruments and delegations
A6 authorizes the Minister to designate officers to carry out specific duties and powers, and to delegate authorities. It also states those ministerial authorities, which may not be delegated, specifically those relating to security certificates or national interest.
Pursuant to A6(2), the Minister of Citizenship and Immigration, has delegated powers and designated those officials authorized to carry out any purpose of any provisions legislative or regulatory in instrument IL 3 - Delegation and Designation.
For delegated/designated authorities with respect to sponsorship applications, see IP 2, Section 4.
4.1. Delegated powers
IL 3 organizes delegated powers by modules. Each module is divided into columns including column 1: provides an item number for the described powers, column 2: provides a reference to the sections or subsections of the Act and Regulations covered by the described powers and column 3: provides a description of the delegated powers. The duties and powers specific to this chapter are found in the modules listed below:
Module 1 - Permanent residence and the sponsorship of foreign nationals
Module 9 - Inadmissibility – loss of status – removal
4.2. Delegates/designated officers
The delegates or designated officers, specified in column 4 of Annexes A to H, (contained in IL 3) are authorized to carry out the powers described in column three of each module. Appendices are organized by region and by module. Officers should verify the list below for the appendix specific to their region.
Appendix A
Atlantic Region
Appendix B
Quebec Region
Appendix C
Ontario Region
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Appendix D
Prairies/NWT Region
Appendix E
BC Region
Appendix F
International Region
Appendix G
Departmental Delivery Network
Appendix H
NHQ
5. Departmental policy
5.1. Family class requirements
Members of the family class and their family members must meet the following requirements:
they must have an eligible relative, or spouse, common-law partner or conjugal partner who meets the requirements for sponsorship;
they must prove their identity, age and relationship among themselves and to their sponsor;
the applicant and family members must not be described in any of the inadmissible classes; and
they must have valid and subsisting passports or travel documents.
5.2. Who must complete an IMM 0008?
All principal applicants, regardless of age, must complete an IMM 0008GEN. Spouses, common- law partners and dependent children over 18 years of age who are included in the sponsorship, must complete a Schedule 1 - Background Declaration and Additional Family Information - (IMM 5406E). This includes spouses, common-law partners and family members whether or not they accompany the principal applicant to Canada.
When a parent sponsors two or more dependent children of any age there must be separate IMM 0008s for each child.
Dependent children under 18 years of age, or who are not accompanying the principal applicant, may be asked to complete Schedule 1 - Background Declaration and Additional Family information (IMM 5406E) in order to assist with verification of identity and relationship, or to assist in their examination. If this is done, explain that the forms are intended to serve as a source of information and not as an application for permanent residence.
5.3. When does a family class application exist?
In family class redesign cases (spouse, common-law partner, conjugal partner or dependent children); a family class application requires receipt by CPC-M of an IMM 1344AE, a properly completed and signed IMM 0008 and the correct processing fees. If any of these elements are missing, the application is returned to the sponsor.
Other family class cases require that the IMM 1344AE and correct fees have been received by CPC-M and the properly completed and signed IMM 0008 received by the visa office
See R10 and R12 for more information on what constitutes an application.
5.4. Lock-in age of dependent children
The lock-in of age for dependent children is the day CPC-M receives a completed IMM 1344AE and correct processing fees. Dependent children must be less than 22 years of age when the sponsorship application is received.
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Under 22 years means up to and including the last day before the dependent child's 22nd birthday.
Offices must date-stamp application forms as soon as they are received.
See [OP 1, General Processing Guidelines] for more information about the lock-in date.
5.5. Time limit for returning a completed IMM 0008
The following applies to members of the family class other than spouses, common-law partners, conjugal partners and dependent children including children who are being adopted outside Canada and children who are to be adopted in Canada.
Visa offices must receive an accurately completed IMM 0008GEN. This form, when signed, forms the basis for a decision on an application for permanent residence. It is also used by CIC to support A44(1) reports and is part of the record when sponsors appeal refusals.
Sponsored relatives, including those destined to Québec, have one year to submit an application to a visa office. The one-year period begins on the date of CPC-M's sponsorship assessment letter to the sponsor. This is the same date as the "date signed" contained in the sponsorship notification from CPC-M to the visa office.
Sponsors may withdraw their application and request a refund of the permanent residence application processing fee, if an IMM 0008GEN is not submitted.
5.6. Processing priorities
Applications for permanent residence from spouses, common-law partners, conjugal partners and dependent children have the highest priority, along with children to be adopted. Other members of the family class follow. These are operational, not regulatory priorities. The Department aims to process 80% of sponsorship and permanent residence applications submitted on behalf of the high-priority group of spouses, common-law partners, conjugal partners and dependent children within six months.
5.7. Non-routine cases
While every effort should be made to process high-priority cases expeditiously, it is recognized that there are circumstances where priority processing may legitimately be affected. While not exhaustive, the list below provides some examples of non-routine cases that may not be processed according to the six-month service standard..
Examples of non-routine cases:
medical, security or criminal issues;
suspected relationship or dissolution of convenience;
misrepresentation of marital status at time of marriage;
previous deportation;
inability to support self and family members due to legal obligations or other reasons;
relationship of applicant to sponsor or applicant to other family members in doubt;
marital status of family member suspect;
sponsor under investigation for violation of IRPA; or
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outstanding criminal charge against sponsor.
The following would frequently, but not necessarily, be non-routine cases:
legal validity of foreign marriage in question (marriage which occurred in country other than in processing mission's area of responsibility);
custody of children of applicant;
residence status of sponsor in doubt;
delays created by applicant not following instructions;
communications not received by mission or by applicant (unreliable postal system, mission not informed of change of address);
family members and principal applicant residing in different countries and processing coordination difficulties occur; or
applicant previously removed or excluded from Canada.
In an effort to aid analysis and identification of non-routine cases, the Work In Progress (WIP) event structure in CAIPS should be used by visa offices to flag non-routine cases. Visa offices may enter the following WIP events to identify a file that is non-routine and therefore might be processed outside of the six-month service standard. The WIP events are:
Background check delay
Medical delay
Criminality delay
Other delay
One or more of these WIP events may be entered when the cause of a possible delay is identified.
Examples of possible delays:
Medical delay—the requirement to undergo 6 months of treatment for active tuberculosis;
Criminality delay—a family member has a pending criminal charge that must be resolved before admissibility may be determined;
Other delay—an interview is required but area trips are made to the region only once or twice per year and an area trip has been completed just recently;
The sponsor is from Quebec, was found to be ineligible by Quebec, and successfully appealed;
An investigation in Canada is required prior to determining whether the sponsor is eligible.
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5.8. Sponsorships by Canadian citizens living abroad
See IP 2 for further details on who may be sponsored, sponsorship requirements and where to submit an application
5.9. Assessing an application
Officers must be satisfied that applicants and their family members, whether accompanying or not, are not inadmissible and otherwise meet all requirements of the family class [A11(1)].
Officers must also be satisfied that sponsorship requirements are still met at the time of visa issuance. If a sponsor is no longer eligible, officers must refuse the application except where the application has been approved under A25.
5.10. Non-accompanying family members
Applicants must declare all family members when applying for a visa and must again declare all family members, whether accompanying or not, prior to obtaining permanent resident status. Permanent residents who did not declare all their family members on their application are reportable under A44(1) [see also “Sponsor who may be subject to an A44(1) report” (section 10.5 below) and “Misrepresentation” (section 5.22 below)]. In addition, all family members, whether accompanying or not, must be examined, unless the appropriate officer determines that they are not required by the Act or the former Act to examine the family member [R117(10)]. Family members who were not declared and examined are excluded from the family class and may not be sponsored at a later date as per R117(9)(d) unless R117(10) applies.
Non-accompanying family members must undergo medical examinations. They must also establish that they are not inadmissible for criminal or security reasons. If the requirement for minimum necessary income is applicable, sponsors must demonstrate that they can support all family members, including non-accompanying family members.
Non-accompanying family members need not be in possession of a passport or travel document.
5.11. Inadmissibility and non-accompanying family members
All family members, whether accompanying the principal applicant or not, are required to be examined unless an officer decides otherwise. Normally, an inadmissible family member, whether accompanying or not, would render the principal applicant inadmissible. There are, however, two exceptions to this rule described in R23. The first is the separated spouse of the applicant and the second is where a child of the applicant who is in the legal custody of someone other than the applicant or an accompanying family member of the applicant, or where someone other than the applicant or accompanying family member of the applicant is empowered to act on behalf of that child by virtue of a court order or written agreement or by operation of law.
If an applicant’s separated spouse or their children who are in the custody of someone else are inadmissible, their inadmissibility would not render the applicant inadmissible. Because separated spouses can reconcile and custody arrangements for children may change, examination is required in order to safeguard the future right to sponsor them in the family class. If these family members are not examined, they cannot be sponsored in the family class in the future under R117(9)(d) unless R117(10) applies.
Satisfactory documentary proof of a separation and of custody being with someone other than the applicant is required. A separation agreement or custody papers are examples of acceptable proof.
Officers will not issue a permanent resident visa to separated spouses, common-law partners or children in the custody of someone else, even if they are examined. This is because separated spouses and partners are not members of the family class as per R117(9)(c) and because children in the custody of someone else are non-accompanying family members.
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If these family members are genuinely unavailable or unwilling to be examined, the consequences of not having them examined should be clearly explained to the applicant and reflected in the CAIPS notes. Officers may wish to have applicants sign a statutory declaration indicating they understand the consequences of failing to have the family member examined.
See also section 5.12, Exclusion from membership in the Family Class – R117(9)(d), R117(10) and R117(11) below.
5.12. Exclusion from membership in the family class – R117(9)(d), R117(10) and R117(11) (former OM OP 03-19)
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.
Where, however, the applicant has declared the person and CIC chooses not to examine the family member, for example, because of an administrative decision or for policy reasons, or due to an administrative error, the family member is not excluded from membership in the family class. However, a sponsor cannot sponsor a family member if an officer determined at the time the sponsor previously submitted their application for permanent residence:
1. that the sponsor was informed that the family member could be examined and that the sponsor was able to make the family member available for examination, but did not do so, or
2. that the family member did not appear for examination when he was able to do so.
Many of the family class cases that are currently being processed have a sponsor who immigrated to Canada under the previous legislation. Under the previous legislation, certain persons either did not have to be examined as part of the application or could not be examined due to an administrative policy or decision taken by CIC.
There are two groups of persons who fall into the above category:
The family members of an applicant for refugee status did not have to be examined as part of the application. (In addition, it should be noted that under the current Regulations, i.e., R176, the non-accompanying family members of a protected person, who is seeking to remain in Canada as a permanent resident, are not required to be examined and therefore should not be excluded from the family class in a subsequent sponsorship);
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Where an application for H&C consideration was made in Canada, CIC did not allow the overseas family members to be included as part of the application. Consequently, they were not examined.
In addition, under the previous legislation, there were situations where an application could proceed even though the applicant made a decision not to have a family member examined, namely:
where a dependent child was in the custody of the sponsor’s spouse or ex-spouse;
where the applicant was formally separated from their spouse.
Consequences of no examination:
Where CIC made the decision not to require examination of family members
As per R117(10), the exclusion of R117(9)(d) does not apply to an applicant where it is established that an officer determined, during the course of the sponsor’s own application for permanent residence, that this applicant (then a family member of the foreign national who later became a sponsor) was not required to be examined, as applicable, under IRPA or the former Act. The key notion operating here is whether it was the decision of the officer who, being fully advised of the existence of the family member through the truthful declaration of the foreign national who later became a sponsor, determined that it was not required that that family member be examined and did not require that the family member be examined. If the decision for non-examination was made by the officer, then R117(9)(d) does not apply in respect of that family member and that family member is not excluded.
Nevertheless, as per R117(11), R117(9)(d) does apply to an applicant if an officer determines that this applicant could have been examined during the sponsor’s own application for permanent residence, but that the sponsor chose not to make the applicant available for examination or that the applicant did not appear for examination. The choice in this situation rests with either the sponsor or the applicant (not with an officer of the Department) and, consequently, the applicant is excluded, pursuant to R117(9)(d) and R117(11), for not having the family members examined as part of the sponsor’s own application for permanent residence.
Separated spouse
Where a spouse was not examined as part of the application for permanent residence because the applicant and spouse were separated and examination was not required, the spouse cannot later be sponsored as a member of the family class by virtue of their relationship to the sponsor. This was true under R4(2) of the previous legislation and it is still valid under R117(9)(d) of the current legislation. To preserve the option to sponsor at a later date, the separated spouse must be examined. [(R117(9)(d) and R23)]
The relationship between the foreign national and the sponsor will be considered to be an excluded relationship where the foreign national was the sponsor’s spouse but was living separate and apart from the sponsor.
Dependent child in the custody of a former spouse
In some cases where a child was in the custody of the other parent, the applicant may have been advised, pursuant to R6(5) of the Immigration Regulations, 1978 and per R23 of the current Regulations, that the child did not have to be examined because of the custody situation. In this situation, the decision whether or not to have a child examined is definitely the applicant's decision.
The applicant should have been fully counselled by the officer on the consequences of not having the child examined, i.e., exclusion from later sponsorship in the family class by the applicant. The CAIPS notes should reflect that this counselling took place. In situations where it is evident that
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the applicant was fully counselled, the dependent child is excluded from membership in the family class by virtue of their relationship to the sponsor and cannot be sponsored by this person at a later date. This was true under R4(2) of the previous legislation and is still valid under R117(9)(d) of the current legislation.
In cases where, upon review, it is not clear that the applicant in fact made the choice not to have the child examined and/or it is not clear that the applicant understood the consequences of the choice, a review board, i.e., the IAD may conclude that the officer was in breach and that the applicant was not correctly advised. Natural justice and fairness require that the consequences of a decision of this magnitude be fully explained and understood, whether at interview or through correspondence.
Excluded family members and humanitarian and compassionate grounds
A25 requires officers and delegated authorities to examine humanitarian and compassionate factors (H&C) upon the applicant’s request. In addition, if an officer believes there are strong humanitarian and compassionate factors present in a case, the officer may on their own initiative, without the applicant specifically requesting it, put the case forward to the person with the delegated authority to approve the use of A25(1) for the case. A separate application and fee are not required.
A25 can be used by applicants to overcome being an excluded family member or any other requirement of the Act. This includes an applicant who has a sponsor who does not meet eligibility requirements.
The text that follows addresses the use of A25 in relation to R117(9)(d). This regulation excludes from the family class, persons who were not examined as non-accompanying family members at the time their sponsor made their application for permanent residence.
In considering the use of H&C for excluded family members, the officer should take into account all relevant factors including, but not limited to, those provided below.
General
The onus is on the client to understand their obligations under the law. The information guides included with application kits and visa issuance letters give clear information on the need to declare and have examined all family members including new family members.
The exclusion found in R117(9)(d) exists to encourage honesty and prevent applicants from circumventing immigration rules. Specifically, it exists to prevent applicants from later being able to sponsor otherwise inadmissible family members under the generous family class sponsorship rules when these family members would have prevented the applicant’s initial immigration to Canada for admissibility reasons (i.e., excessive demand).
The application of humanitarian and compassionate considerations may nonetheless be appropriate in cases that are exceptional and deserving from a reasonable person’s point of view.
Case-specific factors
Canada’s continuing obligations under the Convention on the Rights of the Child require that the Department consider the best interests of a child directly affected by the application whether they are explicitly mentioned by the applicant or are otherwise apparent. (For more information on the application of the policy pertaining to the best interests of the child, see OP4, section 8.3.)
Where family members were declared but not examined and it is clear that the applicant/sponsor made their best efforts to facilitate this examination and that this lack of examination was beyond the applicant’s/sponsor’s control, considering the use of H&C factors may be appropriate.
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When the client presents compelling reasons for not having disclosed the existence of a family member, it may also be appropriate to consider the use of H&C factors. For example:
a refugee presents evidence that they believed their family members were dead or that their whereabouts were unknown; or
a client presents evidence that the existence of a child was not disclosed because it would cause extreme hardship because the child was born out of wedlock in a culture that does not condone this.
Where an officer decides to put forward a case for consideration of H&C factors in the absence of a specific request from the client, the client should be informed that H&C factors are being considered and should be provided with an opportunity to present their own reasons for H&C consideration. This is procedurally fair and ensures that the decision-maker has all the information necessary before making a decision.
Should a decision be made to process an application favourably even though the applicant is excluded pursuant to R117(9)(d), the case should be coded as FCH. FCH indicates that the case is within the family class, but that H&C consideration was given. This means that the sponsorship is enforceable and the normal family class exemptions apply where applicable (i.e., excessive demand and LICO). Should the application be rejected, the sponsor has appeal rights. See OP4, section 8.2, for further information on processing family class cases under A25.
Accompanying family members not excluded
Visa offices may encounter situations where a common-law partner and dependent child of a sponsor are applying for permanent residence and these individuals were not examined at the time of the sponsor’s own pre-IRPA application for permanent residence. Common-law partners were not family members pre-IRPA so were not required to be examined. These individuals are not inadmissible under R117(9)(d). See R355. However, any children of the sponsor who met the pre-IRPA definition of dependent child should have been examined. If they are now being sponsored in the family class, then they are inadmissible under R117(9)(d). If, on the other hand, they are included in the common-law partner’s application for permanent residence as accompanying family members, then they are not being sponsored themselves as members of the family class but rather are the family members of a member of the family class and hence they are not inadmissible under R117(9)(d).
R70(4) states that,
"A foreign national who is an accompanying family member of a foreign national who is issued a permanent resident visa shall be issued a permanent resident visa, if, following an examination, it is established that
(a) the accompanying family member is not inadmissible; . . . ".
This may seem to contradict R117(9)(d). However, the intent of R117(9)(d) is that the sponsor may not sponsor a person as a member of the family class if that person was not examined as part of the sponsor's application for permanent residence. In the example given above, the child is not being sponsored as the dependent child of the sponsor, but rather as the accompanying family member of the principal applicant.
5.13. Who qualifies as a dependent child?
R2 and Section 6 in this chapter describe who qualifies as a dependent child.
In order to meet R2(b)(i) of the definition of “dependent child”, a child must be under 22 years of age and not a spouse or common-law partner on the date when the IMM 1344AE is received by CPC-M, and not a spouse or common-law partner when the visa is issued, and when they arrive in Canada.
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Not a spouse or common-law partner means that the dependent child must not be married or involved in a common-law relationship. A dependent child who is single, divorced, widowed, or whose marriage has been annulled is not a spouse. Similarly, if the dependent child was involved in a common-law relationship but that relationship no longer exists, they may be considered to meet the definition.
R2(b)(ii) & (iii) describe children over the age of 22 who may be considered dependent children if they are substantially dependent on their parents for financial support. This includes full-time students enrolled in accredited post secondary institutions or children with a physical or mental condition. In such cases, officers must ask for documentary evidence of full time attendance at school, evidence of the institution's accreditation with the relevant authority, evidence of the physical or mental condition and evidence of financial dependency on parents.
For further information on dependent children over the age of 22, see:
Assessment of a claim that a dependent child is a student, Section 14 below.
5.14. Human reproductive technologies
Biological child” in R2(a)(i) also includes a child who:
(a) is not genetically related to the parent making the application;
(b) was born through the application of assisted human reproductive technologies; and
(c) was born to the parent making the application or to the person who, at the time of the birth of the child, was that parent's spouse, common-law partner or conjugal partner.
This definition is meant to capture children born to parents through assisted human reproductive technologies, such as in vitro fertilization, who may not share a genetic relationship to those parents. In this case, the female spouse or partner must have given birth to the child. In Canadian Family Law, the spouse or common-law partner of the parent who gives birth to a child is presumed to be the other legal parent even if there is no genetic relationship to the child. If the child was born through a surrogacy arrangement, however, the child will legally be the child of the surrogate mother who gave birth until a subsequent adoption occurs that would create a legal parent/child relationship.
In these cases, documents suitable for establishing parent/child relationships are birth certificates or authorized evidence indicating that the person claiming to be the parent is the birth mother or the spouse or common-law partner of the birth mother at the time of birth. Evidence must also indicate that the parents availed themselves of assisted human reproductive technologies and that the child was subsequently born to the mother.
5.15. Establishing identity and relationship
Members of the family class must prove their relationship to their sponsor and to their family members.
The onus is on the applicant to provide evidence of their identity and relationships to their sponsor and accompanying family members. Applicants must answer questions truthfully and provide any documents necessary to establish that they are not inadmissible [A16(1)]. An applicant, who cannot provide satisfactory documentary evidence of a relationship, has the option to undergo DNA testing.
DNA testing involves the comparison of DNA profiles extracted from blood samples taken from persons claiming to be a biological father, mother or child(ren). If properly conducted, the test is considered a highly reliable means to verify a claimed relationship. This test is commercially available. (See OP 1 for more information on DNA testing.)
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5.16. Relationships of convenience
Persons who entered into a non-genuine marriage, common-law relationship, conjugal partnership or adoption in order to obtain permanent residence in Canada must be refused [R4].
In the case of a child to be adopted, the regulation excluding a relationship of convenience from the family class is R117(1)(g)(i).
Officers must have sufficient evidence to support a conclusion that a relationship is not genuine (see Identifying a relationship of convenience, Section 12 below, and OP 3 for adoptions.)
Officers must clearly explain in the case notes why the relationship is one of convenience.
Sponsors may submit an appeal of a refusal on these grounds to the Immigration Appeal Division (IAD).
5.17. Conjugal relationships - Dissolutions of convenience
A person, who dissolves a marriage or conjugal relationship and subsequently resumes a conjugal relationship in bad faith, should be refused pursuant to R4.1, if the intention was to acquire any status or privilege under the Act.
Officers must have sufficient evidence to support a conclusion that a relationship was dissolved in bad faith (see Conjugal relationships - Identifying a dissolution of convenience, Section 12.5 below).
Officers must clearly explain in the case notes why they found that the relationship was dissolved in bad faith.
Sponsors may submit an appeal of a refusal on these grounds to the Immigration Appeal Division (IAD).
5.18. Adoptions
For information on processing adoptions and orphaned family members, see OP 3.
5.19. Medical requirements
Members of the family class are medically inadmissible if they or their family members are likely to be a danger to public health or to public safety or if their admission might reasonably be expected to cause excessive demands on health or social services [A38(1)]. See Exceptions to medical inadmissibility, Section 5.20 below.
Instructions on medical examinations can be found in OP 15. That chapter also explains how to interpret medical results to determine if the applicant is medically admissible and the steps to take before informing applicants that they are refused for medical reasons.
If a member of the family class or a family member is found to be inadmissible for medical reasons, and no new information is provided (see OP 15), the application should be refused.
See OP 20 for information on Temporary Resident Permits.
5.20. Exceptions to medical inadmissibility
A38(2)(a) states that spouses, common-law partners and dependent children who are members of the family class are not inadmissible even if they have a medical condition that will result in excessive demand to health or social services.
R24 provides further exemption from medical inadmissibility that might reasonably be expected to cause excessive demand on health or social services for conjugal partners and children to be adopted.
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5.21. Criminal and security requirements
Members of the family class and their family members must be admissible to Canada under all sections of A33 - A37 relating to criminality and security.
Officers must establish admissibility through an applicant's police certificate and background reports and assessments. For more information on determining admissibility on criminal and security grounds, see the IC manual, Security and Criminal Screening of Immigrants, and ENF 2.
Applicants and their family members who are inadmissible for criminal or security reasons must be refused. See OP 20 for information on Temporary Resident Permits.
5.22. Misrepresentation
A foreign national is inadmissible for two years for withholding or misrepresenting information that is material to making a decision on an application [A40].
See ENF 2 section 9 for information on dealing with such cases.
5.23. When must requirements be met by family members?
Family members
When must requirements be met
Spouse or common-law partner
Meets the definition of spouse or common-law partner as described in section 6 below when the application is received by CPC-M, when the visa is issued and when they enter Canada.
Dependent children under 22 years of age
Is under 22 years of age and not a spouse or common-law partner when the application is received by CPC-M; and
without taking into account their age, they continue not to be married or not involved in a common-law relationship at visa issuance and when they enter Canada.
Dependent children over 22 years of age and full- time students
Since before the age of 22 or, if married or a common-law partner before the age of 22, since becoming a spouse of common- law partner they have been:
substantially dependent for financial support on their parents; and
continuously enrolled and actively pursuing a course of study at an accredited post secondary institution when the application is received by CPC-M and when the visa is issued.
Dependent children over 22 years of age and unable to be financially self- supporting due to a physical or mental condition
Since before the age of 22 have been:
substantially dependent for financial support on their parents when the application is received by CPC-M; and
continue to be substantially dependent upon their parents when the visa is issued.
Dependent children of dependent children
Is the dependent child of an accompanying dependent child [R70(5)] when the application is received and when the visa is issued.
5.24. Sponsoring one other relative regardless of age or relationship
Sponsors who do not have a living spouse or common-law partner, conjugal partner, a son or daughter, father, mother, grandparent, brother, sister, uncle, aunt, nephew or niece, who is a Canadian citizen or a permanent resident, or any relative or family member who can be sponsored as a member of the family class, may sponsor one relative regardless of age or relationship (anyone connected by blood or adoption).
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2006-11-14 19
Sponsors submit information concerning family members and relatives on the Family Information Sheet. If a chosen relative is inadmissible, the sponsor may choose another relative.
5.25. Characteristics of conjugal relationships
The word “conjugal” is not defined in legislation; however, the factors that are used to determine whether a couple is in a conjugal relationship are described in court decisions.
Marriage is a status-based relationship existing from the day the marriage is legally valid until it is severed by death or divorce. A common-law relationship (and in the immigration context, a conjugal partner relationship) is a fact-based relationship which exists from the day on which the two individuals can reasonably demonstrate that the relationship meets the definition set out in the Regulations. While this is a significant difference, there are many similarities in the two types of relationships. This is because of the history of the recognition in law of common-law relationships and their definition, which includes the word “conjugal.”
The term “conjugal” was originally used to describe marriage. Then, over the years, it was expanded by various court decisions to describe “marriage-like” relationships, i.e., a man and a woman in a common-law relationship. With the M. v. H. decision in 1999, the Supreme Court of Canada further expanded the term to include same-sex common-law couples.
The word “conjugal” does not mean “sexual relations” alone. It signifies that there is a significant degree of attachment between two partners. The word “conjugal” comes from two Latin words, one meaning “join” and the other meaning “yoke,” thus, literally, the term means “joined together” or “yoked together.”
In the M. v. H. decision, the Supreme Court adopts the list of factors that must be considered in determining whether any two individuals are actually in a conjugal relationship from the decision of the Ontario Court of Appeal in Moldowich v. Penttinen. They include:
shared shelter (e.g., sleeping arrangements);
sexual and personal behaviour (e.g., fidelity, commitment, feelings towards each other);
services (e.g., conduct and habit with respect to the sharing of household chores)
social activities (e.g., their attitude and conduct as a couple in the community and with their families);
economic support (e.g., financial arrangements, ownership of property);
children (e.g., attitude and conduct concerning children)
the societal perception of the two as a couple.
From the language used by the Supreme Court throughout M. v. H., it is clear that a conjugal relationship is one of some permanence, where individuals are interdependent – financially, socially, emotionally, and physically – where they share household and related responsibilities, and where they have made a serious commitment to one another.
Based on this, the following characteristics should be present to some degree in all conjugal relationships, married and unmarried:
mutual commitment to a shared life;
exclusive – cannot be in more than one conjugal relationship at a time;
intimate – commitment to sexual exclusivity;
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interdependent – physically, emotionally, financially, socially;
permanent – long-term, genuine and continuing relationship;
present themselves as a couple;
regarded by others as a couple;
caring for children (if there are children).
People who are dating or who are thinking about marrying or living together and establishing a common-law relationship are NOT yet in a conjugal relationship, nor are people who want to live together to “try out” their relationship.
Persons in a conjugal relationship have made a significant commitment to one another. A married couple makes the commitment publicly at a specific point in time via their marriage vows and ceremony, and the marriage certificate and registration is a record of that commitment. In a common-law or conjugal partner relationship, there is not necessarily a single point in time at which a commitment is made, and there is no one legal document attesting to the commitment. Instead, there is the passage of time together, the building of intimacy and emotional ties and the accumulation of other types of evidence, such as naming one another as beneficiaries of insurance policies or estates, joint ownership of possessions, joint decision-making with consequences for one partner affecting the other, and financial support of one another (joint expenses or sharing of income, etc. When taken together, these facts indicate that the couple has come to a similar point as that of a married couple – there is significant commitment and mutual interdependence in a monogamous relationship of some permanence.
5.26. Assessment of conjugal relationships
The following are key elements that officers may use to establish whether a couple is in a conjugal relationship. These apply to spouses, common-law partners and conjugal partners.
a) Mutual commitment to a shared life to the exclusion of all other conjugal relationships
A conjugal relationship is characterized by mutual commitment, exclusivity, and interdependence and therefore cannot exist among more than two people simultaneously. The word “conjugal” includes the requirement of monogamy and, therefore, an individual cannot be in more than one conjugal relationship at one time. For example, a person cannot have a conjugal relationship with a legally married spouse and another person at the same time. Nor can a person have a conjugal relationship with two unmarried partners at the same time. These would be polygamous-like relationships and cannot be considered conjugal.
This does not, however, require that an individual in an unmarried conjugal relationship be divorced from a legally married spouse. See: What happens if the common-law partner (principal applicant) is married to another person, section 5.38 below.
The requirement of exclusivity or monogamy applies in equal measure to marriage, common-law partnership and conjugal partnership. Thus, the common-law and conjugal partner categories cannot be used to get around restrictions related to bigamy and polygamy (See section 13.2 Polygamous marriages below for further information). By the same token, common-law and conjugal partner relationships are not expected to be any more exclusive than ordinary married relationships. Proof of exclusivity is not usually required in the assessment of these relationships any more than it would be in assessing a marriage.
b) Interdependent – physically, emotionally, financially, socially
The two individuals in a conjugal relationship are interdependent – they have combined their affairs both economically and socially. The assessment of whether two individuals are in a conjugal relationship should focus on evidence of interdependency.
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The following list is a set of elements which, when taken together or in various combinations, may constitute evidence of interdependency. It should be kept in mind that these elements may be present in varying degrees and not all are necessary for a relationship to be considered conjugal.
Factor
Details
Financial aspects of the relationship
Joint loan agreements for real estate, cars, major household appliances;
Joint ownership of property, other durable goods;
Operation of joint bank accounts, joint credit cards evidence that any such accounts have existed for a reasonable period of time;
The extent of any pooling of financial resources, especially in relation to major financial commitments;
Whether one party owes any legal obligation in respect of the other.
Social aspects of the relationship
Evidence that the relationship has been declared to governmen
Rose13
Star Member
- Jun 24, 2013
- 1
- Category........
- Visa Office......
- Nairobi - Kenya
- Job Offer........
- Pre-Assessed..
- App. Filed.......
- 20-02-2013
- Doc's Request.
- 9-04-2013
- AOR Received.
- 12-03-2013
- Med's Done....
- 11-01-2013
- Interview........
- 20-02-2014
- Passport Req..
- 20-02-2014
- VISA ISSUED...
- 24-04-2014
- LANDED..........
- 10-05-2014
Hi forum members,
My interview has been a success and my passport submitted for visa issuing. Thanks for all your support, advise and prayers.
Now wondering how long it will take to return my passport with e visa. Any idea??
Am almost done with this process. All the best my dears.
Rose13
My interview has been a success and my passport submitted for visa issuing. Thanks for all your support, advise and prayers.
Now wondering how long it will take to return my passport with e visa. Any idea??
Am almost done with this process. All the best my dears.
Rose13
- Apr 2, 2013
- 2
- Category........
- Visa Office......
- Mexico City
- Job Offer........
- Pre-Assessed..
- App. Filed.......
- 03-03-2013
- Doc's Request.
- 05-05-2013
- AOR Received.
- 05-05-2013
- File Transfer...
- 28-03-2013
- Med's Request
- ARC REQUEST 21-02-14 ARC SEND 26-02-14
- Med's Done....
- 14-12-2012
- Interview........
- 19-02-2014APPROVED
- Passport Req..
- 26 -03-2014 PASSPORT SEND 26-03-14
- VISA ISSUED...
- 14-04-14
- LANDED..........
- 28-04-14
Congratulations !! Mine went great too, I still have a few things to do but at least the officer approved our relationshipRose13 said:
I'm not really sure how long it takes in the visa office where you application is being process but in Mexico it takes around 2-3 weeks 
God be with us
Hero Member
- May 31, 2013
- 4
- Category........
- Visa Office......
- CPC- Vegreville
- Job Offer........
- Pre-Assessed..
- App. Filed.......
- 15-07-2013
- AOR Received.
- 14-08-2013
- Med's Done....
- Sent with application
- Interview........
- Thankfully not reqrd
- VISA ISSUED...
- 13-6-2014
- LANDED..........
- 24-6-2014
svetlana
Hero Member
- Feb 11, 2014
- 2
- Category........
- Visa Office......
- BUCHAREST
- Job Offer........
- Pre-Assessed..
- App. Filed.......
- 29/07/2013
- Nomination.....
- CSQ: 02/05/2013
- File Transfer...
- 15/08/2013
- Med's Done....
- jan.2012/ 16/12/2014
- Interview........
- waived
- Passport Req..
- 05/12/2014
- VISA ISSUED...
- 07/01/2015
- LANDED..........
- 16/01/2015
Rose13
Star Member
- Jun 24, 2013
- 1
- Category........
- Visa Office......
- Nairobi - Kenya
- Job Offer........
- Pre-Assessed..
- App. Filed.......
- 20-02-2013
- Doc's Request.
- 9-04-2013
- AOR Received.
- 12-03-2013
- Med's Done....
- 11-01-2013
- Interview........
- 20-02-2014
- Passport Req..
- 20-02-2014
- VISA ISSUED...
- 24-04-2014
- LANDED..........
- 10-05-2014
Sventlana,svetlana said:
The officer was a male, professional and friendly. I was the 3rd people to be interviewed and the environment was calm. He asked my how i met my husband, how he migrated to Canada, plans for our dependents, why we choose civil marriage among other types, what i was doing in all countries that i have traveled/lived, what my husband does & no. of years he has worked for that company. Finally asked when i want to travel to canada. The whole interview took like 30minutes and Finally VO told me that he was satisfied, had no reason to to deny me a visa. He then took my passport and told me to pay for a pre-paid coupon with a courier service that will deliver back my passport.
For sure, this was the stage (interview) that i was flicking out about but i thank God its done.
All the best.
Rose13