Road To Canada Forums

Hi everyone,
Could you please help me with an answer?
I want to sponsor my child from my first marriage. At the time when I applied to immigrate to Canada, my son was added on the application form; however he did not undergo the medical exam because of his mom (my ex-wife refused me any access to my child despite my legal rights). Now he is 19 year old (full time student in high school, grade 12); he can decide for himself and he wants to live with me. I wonder how my sponsor application can be influenced by the fact that he did not go through the medical exam. I am worried because The Immigrant‘s Guide specifies:
[COLOR="Navy"]You and all your family members who are not already Canadian citizens or permanent residents, whether they will be going with you to Canada or not, must undergo and pass a medical examination.
If you or your family members are divorced or separated and have sole or joint custody of a child, this child is considered to be your family member even if he or she normally resides with the other parent and must meet medical requirements. If the child is in the legal custody of the other parent, it is not necessary for that child to undergo the medical examination. Note, however, that if that child does not undergo the medical examination, it will not be possible to sponsor him or her later.[/COLOR]
I would like to be prepared before I will send the application to make the process fast and smooth.

Thanks,

Consult a lawyer - you read the same thing I read . . . unless Immigration tells you that he doesn't have to undergo medical examination, he has to undergo medical examination and if he doesn't, he is excluded from the family class and cannot be sponsored in the future.

The key question: what happened at the time you submitted your own PR application, included him in the ap, and didn't have him examined? There must have been some type of exchange regarding that with CIC at the time - they don't just let that go without resolution.

When did you get PR? I ask because different rules applied at one time.

OP2 http://www.cic.gc.ca/english//resources/...02-eng.pdf sections 5:10 / 5:11 & particularly 5:12 has information regarding excluded family members.

It specifically states that if the IO decided not to examine the child then the child can be sponsored. If the original PR applicant decided not to have the child examined then he cannot.



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.

It then goes on to say that under previous legislation...

"... 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

[FONT=Arial,Bold][FONT=Arial,Bold]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 nonexamination 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. "

[FONT=Arial,Bold][FONT=Arial,Bold][b]Dependent child in the custody of a former spouse[/b]

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 [FONT=Arial,Italic][FONT=Arial,Italic]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.

[b]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. [/b]

In situations where it is evident that 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.

I suggest you read the part about Excluded Family members and H&C grounds.

"... 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.."

It's really not cut and dried, and without knowing what you were told when you applied it is difficult to ascertain whether any of these factors apply to you.

I agree with Robsluv, you should seek legal advice.

I hope that things work out and you are able to sponsor your son. If you can't, how about bringing him over to go to school / university for a couple of years - depending on what courses he takes and his career choices, he may be able to apply for the Canadian Experience Class once he finishes university and works for a year.

:)

[/FONT][/FONT][/FONT][/FONT][/FONT][/FONT]

At that time, we should have attached to the application her declaration stating that she doesn’t have anything against our intentions to relocate in Canada, due to the fact that I had to pay her child support.
She thought that it was the time to make us problems, so she totally refused any arrangements to pay her in advance, through bank or any other options. We tried the legal actions, but there is no law to settle our situation; we spent money and time just to receive a negative response. Also, despite the fact that I had a court order that allowed me to see my son, she refused that, and believe me we tried everything from being very nice to complain to the police.
In order to replace her declaration we had to add many other documents to our application: official letter informing her that we want to immigrate to Canada and her refuse will affect her son in the future; copies of court verdict dismissing our claim due to lack of legislation; copies of all the receipt proving child support payments and a letter promising that we will pay regularly the child support as we paid it until that time.
I believe those documents were good enough because they approved our application.
Finally, three years ago I was able to contact him and since then we are talking almost every month. Two years ago I went back to the country and met him; I asked him often if he would like to come and visit but he never answered. At the beginning of this year he said he wants to come and live with me and my family.
What happened six years ago was neither my fault nor his. He is a very smart boy and now he can decide what is better for him. If you compare our situation with other stories this should not be a big deal. The only problem is that he could not undergo the medical exam at the same time with me and my family.
I wonder if an explanatory letter added to the sponsor application would help us or to say nothing and see what will happen. Unfortunately, I do not have copies of all documents that we submitted for permanent residence; however I still have her injurious letter promising she will take care that I will never see Canada (it has to be translated though).
Sadly, my son suffered the most and I really want to help him.
I noticed your situation was far more complicated. What you can do if they say no for sponsor application? How you convince them to change their minds?
Thanks very much for your time.

Hi Siouxie,
Thank you very much for your reply. This is new info for me; I will study and maybe I was scared for nothing.
It is true that I was not asked anything about my son at that time.
I will keep you posted with the outcome.

Thanks again.

There are transitional provisions for people who were granted PR before the new legislation came into force. If you can say when you applied and what year you were granted PR it would help to ascertain if these transitional provisions apply to you.

:)

Did you apply under the Federal Skilled Worker catagory or a different one (please let me know and I will check the transitional provisions for that class)

:)

We applied for Federal Skilled Worker category and we were approved through Quebec Immigration Program; after we got visa we chose to settle in Ontario because we have family here.
I really appreciate your help. Thanks again.

You are most welcome :)

I was just looking at the IRC rules. Was your application for PR made before June 28th 2002? (not when you landed, but when your application was received by CIC). If it was, then these regulations may come into force.

http://laws.justice.gc.ca/eng/SOR-2002-227/page-1.html

Non-Accompanying Family Members

Not required to be included 352.

A person is not required to include in an application a non-accompanying common-law partner or a non-accompanying child who is not a dependent son or a dependent daughter within the meaning of subsection 2(1) of the former Regulations and is a dependent child as defined in section 2 of these Regulations if the application was made under the former Act before the day on which this section comes into force.

* “dependent child”, in respect of a parent, means a child who
(a) has one of the following relationships with the parent, namely,


(i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or



(ii) is the adopted child of the parent; and



(b) is in one of the following situations of dependency, namely,


(i) is less than 22 years of age and not a spouse or common-law partner,




Requirements not applicable 353.

If a person has made an application under the former Act before the day on which this section comes into force, the following provisions do not apply to the person in respect of any of their non-accompanying dependent children, referred to in section 352, or their non-accompanying common-law partner:


(a) paragraph 70(1)(e);


(b) subparagraph 72(1)(e)(i); and


(c) paragraph 108(1)(a).


Requirements not applicable 354.

If a person makes an application before the day on which this section comes into force, their non-accompanying dependent children, referred to in section 352, and their non-accompanying common-law partner shall not, for the purposes of that application, be considered inadmissible non-accompanying family members, referred to in paragraph 42(a) of the Immigration and Refugee Protection Act, and are not subject to the requirements of paragraph 30(1)(a) or 51(b).



Family members not excluded from family class 355.

If a person who made an application under the former Act before June 28, 2002 sponsors a non-accompanying dependent child, referred to in section 352, who makes an application as a member of the family class or the spouse or common-law partner in Canada class, or sponsors a non-accompanying common-law partner who makes such an application, paragraph 117(9)(d) does not apply in respect of that dependent child or common-law partner.

SOR/2004-167, s. 77.

You might also want to read this: http://www.cba.org/cba/cle/pdf/Rubinoff2.pdf

Excluded relationships (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if ... (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

Exception (10) Subject to subsection (11), paragraph (9)(d) does not apply in respect of a foreign national referred to in that paragraph who was not examined because an officer determined that they were not required by the Act or the former Act, as applicable, to be examined.

Paragraph 117(9)(d) excludes from the family class a foreign national where the foreign national was a non-accompanying family member of the sponsor (spouse, common-law partner8 or dependent child and dependent grandchild)9 and was not examined when the sponsor obtained their landing as a permanent resident.

Subsection 117(10) provides an exception to the application of paragraph 117(9)(d), as paragraph 117(9)(d) will not apply to a sponsored foreign national “who was not examined because an officer determined that they were not required by the Act or the former Act, as applicable, to be examined.”

Ibag Wrote:In order to replace her declaration we had to add many other documents to our application: official letter informing her that we want to immigrate to Canada and her refuse will affect her son in the future; copies of court verdict dismissing our claim due to lack of legislation; copies of all the receipt proving child support payments and a letter promising that we will pay regularly the child support as we paid it until that time. I believe those documents were good enough because they approved our application.

What you can do if they say no for sponsor application? How you convince them to change their minds?
Thanks very much for your time.

It was June 28, 2002 that the new legislation came into effect - so if you landed in 2004, your case will not fall under the exclusion for non-accompanying dependents that an officer decides not to examine. What you've reported here also indicates that there was some understanding at the time you applied for PR that not having your son examined would "affect him in the future" - and, considering all the hoops CIC made you jump through to make this thing happen without him being examined indicates to me that he will now, most likely, be found excluded as a member of the family class pursuant to A117(9)(d). I have read through about 100 appeal decisions on the CanLII website concerning the application of A117(9)(d) and, although most of them concern dependents who were not disclosed by the applicant in their PR applications (whereas you did declare your son) in all the cases I read - and there are pages more than you can scan yourself - they held steadfast to the opinion that, in order to be eligible for PR status, a dependent (accompanying or not, declared or intentionally not disclosed) MUST have been examined as part of the applicant's initial PR processing in order to be eligible to immigrate now. In the 100 cases I read through, there were only two that were allowed and both of those were allowed because of errors on the part of the visa officer who assessed the original PR application and, for whatever reason, did not require examination even when it should have been required. Not only were the rest of the appeals dismissed, but they were also deemed ineligible for humanitarian and compassionate consideration because the refused applicants were determined not to be members of the family class. There was only one case (#84) that dealt with a divorce scenario where custody of the child was with a former spouse and the child was declared but not examined . . . and that case was allowed, but that was only because of the error of the processing officer in not requiring examination. It seems to me that, in your case, you were notified of the requirement that your son be examined and you did not have him examined (recognizing that this would jeapordize a future in Canada) because your ex would not cooperate. What the appeal results seem to indicate is that, in your situation, even though you made every attempt to secure examination for your son, you eventually gave up and landed on your own without him being examined - so he is no longer described as a member of the family class. Regardless of the legitimate reason(s) for non-examination, the end result can not be reversed and there is no provision for H&C discretion because he is not a member of the family class.

I still suggest that you consult with an attorney but I really think your efforts would be better spent in trying to help him immigrate on his own merit under one of the other programs, as sioxie suggested. I think trying the sponsorship route will definitely result in refusal and, unless they find that the officer erred in not requiring examination (when it sounds like you were counselled that examination was required), you won't even succeed at appeal on H&C and you'll only succeed in wasting time and money to no end.

We sent the application end of August 2002.
Indeed we were aware that we might not be able to sponsor him in the future; but we never received specific instructions with respect to his examination.
Thank you very much, both of you, for your effort to look into my situation. No matter what, I will apply to sponsor him and if they say no so be it. I do not want him to believe that I abandoned him.
If this will not work, we will see how we could bring him here to study; it is very difficult for him to apply as an individual: he is 19 years old, no work experience, and no money.
Thank you,

It will all depend on the exact specifics of what CIC communicated to you, and what you signed when you applied for your own residency. For starters, I'd recommend ordering the full file from your PR application, so you can see exactly what CIC has on file, and what you signed back then (if anything) that might have excluded your son from future sponsorship:

http://www.cic.gc.ca/english/DEPARTMENT/...rsonal.asp

I'd highly suggest doing that before applying to sponsor.

I did not know that this is possible. I am so lucky to find you.
Thank you all.