Sponsoring Children for permanent residence in Canada when Custody is an Issue

By Author: Admin | May 16, 2017

The Challenge of Sponsoring Children for permanent residence in Canada (or Using Humanitarian and Compassionate arguments)  when Custody Is An Issue

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Sponsorship of children under the family class requires a parental relationship.  This relationship  must be by blood, or adoption.   More details can be seen here  [1].   However, in the case of a sponsorship where there is a divorce or just a child involved, an additional requirement is needed, specifically, custody over the child.  This can be challenging as I wrote earlier.   

The situation is more difficult where a father or mother of a child immigrates to Canada before the child, the child often being in the custody of a grandparent or the other parent.  Aside from the need for custody in estranged relationships,  the phenomenon of the already immigrated parent not declaring the existence of the child when that parent obtained her permanent resident status,  may jeopardize the ability of that child from ever being sponsored under Regulation 117(9)(d) of the immigration refugee protection regulations.  

Further, the parent seeking to sponsor an undeclared child may be in jeopardy of having their own permanent  resident status removed on the  basis of  committing a material misrepresentation when they applied for their own permanent residency.  This may even affect those persons who are Canadian citizens who fail to declare a dependent child.

There are remedies such as humanitarian and compassionate submissions in an application for permanent residence to sponsor a child. Such submissions would have to address whether it is in the best interests for a child to be in Canada despite failing to be considered as a member of the family class.  

Such humanitarian and compassionate applications are not ‘slam-dunks’ in terms of the chances of success.  There must be credible evidence (usually from professionally-credentialed third parties). that speaks to what is in the best interests of a child.  There also should be some expression of why the current separation of the child from the parent in Canada cannot be maintained. The Canadian-based parent’s circumstances are relevant.  Such circumstances include the financial circumstances of the Canadian-based parent.

It is not sufficient to show that Canada has better opportunities for children seeking to  obtain permanent status in Canada.   Similarly, the presence of family members in the country where the child resides may lead an officer to ask about whether the existing persons who care for the child are able to safeguard  the best interests of the child.

The situation where a child has had visitor status in Canada for a number of months and is with the Canadian parent due to an interim custody order is different.  If said child has been under the care of the Canadian-based parent for a long time, then more evidence could possibly be obtained such as the school marks, testimonials from teachers and neighbors, and reports from medical professionals. Such evidence would presumably, show that it is in the best interests of the child to remain in Canada.

Seeking advice on bringing a child to Canada permanently?  Need Immigration advice? Contact the Chaudhary Law Office

[1] Please note that the link which refers to the age of dependent children being under 19 shall be subject to changes which shall return the age of a dependent child to under age 22.  Those changes are slated to become effective on October 24 2017 as per  http://www.gazette.gc.ca/rp-pr/p2/2017/2017-05-03/html/sor-dors60-eng.php

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