Marina L. Sedai, B.A., LL.B., Barrister & Solicitor

Sedai Law Office, Immigration and Citizenship Law

Suite  600 – 666 Burrard Street

Vancouver, British Columbia  V6C 2X8

T. 604.642.6115; F. 604.909.4859

msedai@immigrationcitizenshiplaw.com

www.immigrationcitizenshiplaw.com

Your connection to Canada never extinguishes.  Your Canadian family, community, and business ties give you reasons to be in Canada part time or full time for months, years, or the rest of your life.  And if it does not do so now, you know the possibility always exists.

But the transition back is complicated.  Your life is intricately woven with the lives of many foreign nationals:  your spouse, your adopted, step, or grandchildren, your in-laws, your closest friends, and your key domestic and business personnel.

This article is the first in a series that will review the general requirements and some common problems encountered when you bring your life home.   We will begin with that which is most precious to you:  your children and your spouse or partner.

A key objective of Canadian immigration is to see that families are reunited in Canada.  Citizenship and Immigration Canada (”CIC”) policy has further defined that objective by making spouses and children processing priorities; therefore, even if your spouse were to qualify  for independent immigration, it is likely that sponsoring him or her will be simpler and faster, unless you are subject to a sponsorship prohibition.  The following are some of the prohibitions and requirements that may be of particular relevance to Canadian expats.

Sponsor

Re-establishment.  Canadian immigration law requires that a sponsor resides in Canada; however, it also provides an exception for you as a Canadian Expat if you are a citizen (not a permanent resident) and you sponsor a spouse or child.  You must show re-establishment plans that satisfactorily indicate that you will reside in Canada when your spouse or child becomes a permanent resident.  Indicating this and not following through could leave you vulnerable to the CIC accusation of a misrepresentation.  The dire consequences of even an unintended misrepresentation are beyond the scope of this article, but it will suffice to say that in immigration law, there is no greater sin.

Income.  As the sponsor of a spouse or child, you do not need to meet the minimum necessary income although you do need to show that you have a means by which to survive, and you will still undertake to provide for the basic requirements of your spouse for three years and for your children for three to ten years, depending on their ages.  This means that if they were to receive social assistance during the sponsorship period, you must pay back the provincial government, which you can expect will pursue the debt.

Undischarged bankrupt.  As soon as you have a discharge certificate from your trustee, you can proceed with a sponsorship application.

Payment Defaults.  If you are in default of any court ordered payment (e.g., child support) or in repayment of any debt to the government, the CIC will not accept you as a sponsor.

Previous Sponsorship.  If you were sponsored to come to Canada, or you have submitted a sponsorship application in the past, then your application to sponsor, as well as your spouse’s permanent resident application, will be examined closely to ensure you met your obligations and for relationship bona fides.  There is certainly no prohibition on genuine serial sponsorships; however, you should discuss potential delays or refusals with legal counsel.

Sexual or Violent Offence.  You must have been pardoned or wait for five years after the completion of all aspects of your sentence (including probation) if you have ever been convicted of a sexual offence against anyone or a violent offence against a family member.

Timeline.  A sponsorship application is usually processed in 4-8 weeks.

SPONSORED SPOUSE OR PARTNER

Meet the Definition.  The first requirement is to ensure that you and your spouse meet the definition of married or common-law.

In most cases, as long as your marriage is legal in the place where it was performed, that jurisdiction’s marriage certificate will suffice.  You do not need to register or remarry in Canada.  However, your application will be refused if your spouse is less than 16 years of age or too closely related to you.  Same-sex spouses married outside of Canada will be processed as common-law partners.

For immigration purposes, “common-law” is defined by quantity and quality, requiring one year of continuous cohabitation in a married-like relationship.   If you and your partner travel to see each other, you may not qualify, unless you first established one year.

If it is impossible for you to marry or live common-law due to penal controls or an immigration impediment, then you could apply as conjugal partners.  You will still need to show an integration of your lives that is beyond boyfriend or girlfriend and at least one year in duration.  The CIC typically does not entertain claims that extreme inconvenience is a barrier (e.g., “our jobs are in different countries”); rather, it is likely to place the responsibility of choice on you.

Canada no longer has a fiancé class, and fiancés will not typically meet the conjugal partner definition.

Genuineness. The second requirement is that your marriage is not a marriage of convenience, entered into primarily for the purpose of immigration.  Similarly, common-law partners cannot be roommates facilitating immigration.  Rather, the relationship must be genuine from the perspective of both spouses and partners.  The CIC will look closely to ensure the Canadian is not being duped by the foreign national.

You demonstrate the genuineness of your relationship by providing evidence that many or all elements of your lives are integrated in a married-like manner (e.g., communities, finances, and household) and it must be an exclusive relationship.   The CIC takes a conservative view of marriage and partnerships.  However, either partner may be married to a third person, provided clear evidence proves that married relationship has been severed and the couple separated.

Again, proving timeline and genuineness requires you to provide cogent evidence.  This is not a few form pages to fill out; rather, you may need to submit a 200 page application that is ready for appeal or judicial review.

SPONSORED CHILD

Meeting the definition.  If you were a Canadian citizen at the time your biological child was born abroad, then they are automatically a citizen.  Otherwise, you can sponsor the following children:

• biological and legal;
• adopted;
• step (as dependents of your spouse or partner); and,
• grandchildren (as dependents of dependent children)

provided they meet the definition of a dependent, as follows:

• under 22 years at time of sponsorship application, and single continuously through to visa issuance
• over 22 years at time of sponsorship application, financially dependent on parents, studying (accredited institution) continuously through to visa issuance since before age 22.
• over 22 years at time of sponsorship application, financially dependent on parents due mental or physical condition, since before age 22.

Born Abroad Grandchildren.  Citizenship Act amendments taking effect 17 April 2009 will deny citizenship to your grandchild who is the second generation born or adopted abroad, if your child/the parent to your grandchild obtained citizenship without first becoming a permanent resident.  Therefore, you should consider sponsoring your child’s application for permanent residence if the circumstances of your case permit.  In this way, your biological or adopted grandchild will automatically be Canadian citizens.

INADMISSIBILITIES

One may have a perfect permanent residence application, yet still be found inadmissible on the grounds of health, criminality, misrepresentation, organised crime, security, crimes against humanity.  This article will examine the first three grounds.

Your sponsored spouse, partner, and children are exempt from medical inadmissibility based on their condition causing excessive demand on health or social services.  However, if their health were to endanger the public, they would be inadmissible.

Your spouse or older child may sincerely believe that they have no criminal history.  This can lead to two common problems:

1)      they may not understand that a “minor” offence may be a crime in Canada, or that an act even without arrest or conviction, may make them inadmissible for criminality.

2)      they may innocently omit criminal history on their application, thus leaving themselves vulnerable to inadmissibility for misrepresentation.

You must counsel your family member to take extreme care when completing a permanent residence application.   The CIC interprets very broadly the definition for misrepresentation that in the legislation is “directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act”.  If your spouse or partner is unlikely to be precise and accurate in his or her answers, then you have good reason to obtain assistance.

Timeline:  On average, 4-8 months.  The posted visa office processing times are historical, and subject to change, but usually a fairly reasonable guideline:  http://www.cic.gc.ca/english/information/times/international/05-fc-spouses.asp

CONCLUSION

Canadian Expat citizens can sponsor their family member’s applications for permanent residence.  Canadian Expat permanent residents will need to arrange their affairs so as to first return to Canada.

Even if you have a straightforward case, the application to bring your loved ones to Canada is a tremendously important.  You should not rely on general advice on the CIC website or even this article, and gamble that your applications will proceed smoothly and be successful.  At the very least, you should review your unique circumstances with a lawyer who main practise areas include immigration and citizenship.

You are welcomed to ask questions here, and I will be pleased to provide general information.  You are also welcomed to contact me directly for case-specific advice.  When you do so, I will instruct you as to the documents and information required to ensure we comply with the British Columbia Law Society Rules that require me to identify clients and develop a clear solicitor-client relationship.  I look forward to your questions.

© 2009 Marina Lee Sedai.   All rights reserved.   This article protected by Canadian and international copyright laws.  Quoting or paraphrasing this article requires complete citation. Permission granted to The Canadian Expat Association (www.thecanadianexpat.com) to wholly reproduce this article.

Categories: Expat Life, Immigration, Family, Other Articles
Tags: BRINGING YOUR LIFE HOME, Expat Immigration, Immigration, Sedai Law Office