PMM and Other Seniors SOS from BC Guy,Question I cant answer to help somebody

[Leon]

She might not even have to adopt him. According to the quote that Eduardo found, it looks like it's enough that the aunt has legal custody as per written agreement between the aunt and mother but better to ask CIC exactly what they would require for this.

 

[RobsLuv]

here:

"All family members, accompanying or not, are required to be examined unless an officer decides otherwise. Normally, any inadmissible family member would render the principal applicant inadmissible as well [A42; R23]. There are, however, two exceptions to this rule described in R23. The first is the separated spouse of the applicant. The second is a child of the applicant who is in the legal custody of someone other than the applicant or an accompanying family member, or where someone other than the applicant or an accompanying family member 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."

This is from the skilled worker's manual, but I assume it would apply for temporary visas as well.

So if the woman's sister adopts the child, the woman would be elegible. Another option is that a court could declare the biological mother incapable of taking care of the child, and give custody to the woman's sister. Indeed, notice that it is only necessary that "someone other than the applicant or an accompanying family member is empowered to act on behalf of that child" for the applicant to be admissible...n

now you need to find out if the same applies for temporary visas. i would guess so.

Actually, this quote comes from the manuals (it's in the FC manuals also), but it's an interpretation of the IRPA and Regulations - which address it a bit differently.

IRPA - Section 42(a):

A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if:
(a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible;

The key here is whether the child was designated accompanying or non-accompanying. If the child was designated as non-accompanying, Section 23 of the Regulations define the conditions under which an applicant is still inadmissible in regards to the inadmissibility of a dependent, whereas the manuals try to define conditions under which an applicant wouldn't be inadmissible . . . and that's where they can go wrong.

Regulations, Section 23(b)(iii):

For the purposes of paragraph 42(a) of the Act, the prescribed circumstances in which the foreign national is inadmissible on grounds of an inadmissible non-accompanying family member are that

(a) the foreign national has made an application for a permanent resident visa or to remain in Canada as a permanent resident; and

(b) the non-accompanying family member is

(iii) a dependent child of the foreign national and either the foreign national or an accompanying family member of the foreign
national has custody of that child or is empowered to act on behalf of that child by virtue of a court order or written
agreement or by operation of law

So, if the child was designated as non-accompanying, and the mother can prove that she does not have custody and is not legally empowered to act on behalf of her child (by virtue of a court order, written agreement or by operation of law), she is not inadmissible just because her child is. However, if she designated the child as accompanying, OR if she is legally responsible for that child, she's inadmissible. In other words, Canada will not allow her to just run away from an obligation to her child. However, if someone else is legally empowered to act on behalf of the child, and/or has custody of the child, the mother is supposed to be free to immigration. I say "supposed to be" because, unfortunately, my case was refused due to the criminal inadmissibility of my adult (but still "dependent") son even though I HAD designated him as non-accompanying and repeatedly told the Embassy that we were not wanting to bring him to Canada. I had not had custody of him for years, and because he was a legal adult at the time of his offence, I no longer had legal authority over him or obligation to him. But our IO simply ignored Section 23 of the Regs and found me inadmissible anyway. We are currently in appeal.

There is an appeal case that addresses a similar issue at this CANLII website link. In this case a woman was sponsoring her mother and brother, and the brother (who had not lived with the mother for several years) got arrested. The sponsor requested to designate the brother as non-accompanying, saying she did not want to sponsor him anymore and he wrote to the Embassy saying he no longer wanted to come to Canada. The Embassy refused to allow his designation to be changed, and found the mother inadmissible to Canada due to the criminal inadmissibility of her son. The appeal panel ruled that the visa office was wrong in not allowing the sponsor to re-designate her brother as non-accompanying. Once they overturned that decision, Section 23 of the Regs came into play and the appeal was allowed.

You can do a search of the CANLII site entering 42(a) for more appeals related to this issue; not all are applicable, but they might give you more insight.

 

[bonaddictus]

thank you guys. so i guess that would be the best thing to do (have my brother on the custody of my aunt and uncle. I'l try to contact my mother as soon as possible. anybody lives in Calgary or nearby city so my mom can call you and seek some advice?

Im really glad you've helped me to figure out things little by little.

 

[BCguy]

You have my contact details in my PM,feel free to call

 

[bonaddictus]

thanks BCguy. i gave your numebr to my mom.she might call you anytime soon.

 

[juergens]

This is of interest to me as well because my wife is diabetic and I'm afraid I may be denied because of her. Although she is in fairly good health now, she had issues with it in the past (including a kidney transplant in 2004 and a few episodes of hypoglycemia, a.k.a. low blood sugar, requiring ER visits). Most of her past was simply due to a lack of care when she was a child and young adult. Since the transplant she has been given a second life and is very responsible concerning her health. I'm hesitant to even apply as I'm sure she would be deemed inadmissible. I understand the issue of "excessive medical demand" and understand taxpayers in Canada would not want to be saddled with the burden. But we'd also be gainfully employed, would be bringing ample funds to settle, and believe we would be putting more into the system. Just where do they draw the line?

 

[BCguy]

Have the Medical test before applying,Because there are reasonable levels of tolerance,If the Embassy certified Doctorsays she is within the tolerance level,Roughly I believe it is at requiring less then 6-8 Thousand dollars a year of Medical Care,Since Our Health care is virtually free

 

[PMM]

Hi

Have the Medical test before applying,Because there are reasonable levels of tolerance,If the Embassy certified Doctorsays she is within the tolerance level,Roughly I believe it is at requiring less then 6-8 Thousand dollars a year of Medical Care,Since Our Health care is virtually free

1. Presently about $5200 per year.
2. Note that the DMP doesn't make the decision on medical inadmissibility the Regional Medical Officer does, the DMP only sends the results.
3. If the OP's spouse takes immune suppressant drugs for the kidney transplant, then the costs of those drugs in Canada may exceed the average Canadian cost.

PMM

 

[bonaddictus]

hello juergens

where are you from, maybe i can help you with diet plan that surely will help you and your wife to have better control on blood sugar levels.

to All:

do you think the legal custody of my brother will be enough so that we can move forward? BTW can you give me idea on how to start the process? do we have to write explanations again and tell them that the my brother will be on the legal custody of my aunt to the VO?

to Bcguy: did my mom called you already?

 

[BCguy]

No your Mom has not yet called,But go to a lawyer in your home country to prepare the legal custody papers

 

[bonaddictus]

oh ok. so im assuming that the legal custody is the best option for us

 

[wowie_ta]

Re: PMM and Other Seniors SOS from BC Guy,Question I cant answer to help somebod

hi! just thought this might be of some interest...

its about a critical care doctor with a CP daughter, but was approved PR in Calgary...

http://media-dis-n-dat.blogspot.com/search?q=canada+migration