Subsection 42 of the Immigration and Protection Act 2001

[PAW]

Hello: Just received a letter from the Canadian Immigration Authorities indicating that my husband's immigration application can be denied because we are unable to provide an immigration medical certificate for his. He is only 11 yrs old and unfortunately, my husband is not on good terms with his ex wife. It was a particularly bitter divorce. We have been posted overseas for 5 years and even though my husband has tried to maintain contact with his son, letters, cards or telephone calls are not answered. One physical meeting was allowed in the summer of2008. She will certainly not agree to allow their son to be have a medical to allow his father to move overseas. The letter states that the onus is on us to establish that Alexander is not a family member as defined by subsection 1 of the Immigration and Refugee Protection Regulations 2001 and that my husband my not choose to opt them out. The letter also states that given the information on file at the present time, they are satisfied that Alexanders needs to be examined in the context of his application. Will my husbands application be denied if we cannot provide the medical? Will we be penalized even though this matter is out of our control? Do you advise us to hire a lawyer? Thank you for your advice.

 

[fleo]

If your husband's ex has sole custody of their son, you could submit to the CIC copies of your repeated (written, signed, dated and all) requests for the child's medical, and her (written, signed, dated) repeated refusals to let him get one. If the CIC accepts it, you will have an option to sign a statement saying basically that you realize and accept that his son will not be a part of your husband's application and can never be sponsored in the future.

If, however, your husband and his ex have joint custody, it is up to him to pursue any legal route available to him to get in touch with and see his son, and arrange his medical examination. In this scenario CIC doesn't accept "his mother won't let him" as an excuse, since father has equal rights whether he exercises them or not.

Here's a topic with a similar situation you might find helpful:

http://www.canadavisa.com/canada-immigration-discussion-board/advise-please-when-your-child-is-not-part-of-your-application-t67707.0.html

 

[RobsLuv]

I agree - this is an important issue. Your husband may need to get a court order to compel his ex to allow the child to be examined . . . if he does not have legal documents showing that she has full physical and legal custody and that he has no parental rights or obligation.

Whatever you do - do something! Don't just let this languish and hope that telling them over and over again that you have no way to contact the child will do the job. One father's PR was just recently refused over the same matter for two daughters who are now both over the age of 18, whom he hasn't seen since they were toddlers. If your husband can't prove that he has no parental rights, he's going to have to use family connnections, friends, private investigators - whatever it takes - to find that child and to get this resolved.

Most important: keep CIC in the loop - letting them know what the plan is and how every step is progressing or not, or they will eventually refuse the application based on you not having complied with their requirement within an acceptable period of time.