Two important laws were announced this week that affects family applications and how immigration regards the family unit.
DEFINITION OF A DEPENDANT CHILD
Principal applicants in a variety of immigration applications are able to include their “dependant children”. Similarly a parent is able to sponsor their “dependant child”.
The definition of “dependant child” has evolved over the last several years.
Prior to July 2014, the definition of a child was a child who was not married and was, either:
- under 22 years of age, or
- over 22 years of age but was a full time student continuously attending school from the age of 22
According to statistics published by Canada Immigration, between 2002 and 2014, dependent children represented, on average, 28% of all immigration applications approved annually (approximately 72 000 per year). Of these dependent children, approximately 11% were 19 years of age or older: 7% were between 19 and 21 years of age and 4% were 22 years of age or older.
Then in August 1, 2014 the past Harper administration changed the law and reduced the age limit for dependent children from under 22 to under 19 years of age.
More importantly, the Federal government eliminated the “in school” exemption which meant that a child who was over 19 and in school was excluded from an application. This regulatory amendment was intended to enhance the economic integration of permanent resident dependent children and was informed by evidence that older permanent residents have a more challenging time fully integrating into the Canadian labour market, which was considered more evident for those who are not selected solely for their economic potential.
Effective October 24, 2017, the new law to define a dependant child will be a child who:
- (i) is less than 22 years of age and is not a spouse or common-law partner, or
- (ii) is 22 years of age or older and has depended substantially on the financial support of the parent since before attaining the age of 22 years and is unable to be financially self-supporting due to a physical or mental condition.
The new laws also include two transitional provisions. The first is for those who filed their applications before August 1, 2014 and are themselves principal applicants. If so, they will benefit from the broader definition.
Second, a transitional provision covers applications in process between August 1, 2014 and October 24, 2017. In particular, the new laws (under 22) do not apply in respect of applications for a permanent resident visa or sponsorship applications made after July 31, 2014 but before October 24, 2017.
CANCELLATION OF CONDITIONAL PERMANENT RESIDENCE
Years ago Canada Immigration imposed a condition applicable to certain permanent residents that required a sponsored spouse or partner to cohabit with their sponsor for two years following the day on which they became a permanent resident. If the couple did not cohabit for the required two years, the sponsored spouse or partner could have lost their permanent resident status. This created an imbalance between the sponsor and their spouse or partner, which could have made the sponsored spouse or partner more vulnerable.
The goal was to deter marriage fraud.
On October 25, 2012, a period of conditional permanent residence was added to the Immigration and Refugee Protection Regulations to deter fraudulent applications and to help identify fraudulent relationships in the family reunification program. Conditional permanent residence required a sponsored spouse or partner to cohabit in a conjugal relationship with their sponsor for a continuous period of two years after obtaining permanent resident status if, at the time of their application, they were in a relationship for two years or less and had no children in common. In cases where the sponsor and their spouse or partner did not cohabit for two years, the spouse or partner could have had their permanent resident status revoked and be removed from Canada.
According to statistics published, between January 1, 2013, and September 30, 2016, 597 spouses and partners requested an exception to the requirement to cohabit with their sponsor due to abuse or neglect. A majority (70%) of these requests were from women. Out of the 528 cases for which a decision had been made on the request for the exception, 78% were approved.
Effective immediately, the law which required two years of cohabitation as a condition of permanent residence for sponsored spouses and partners who, at the time of their application, had been in the relationship for two years or less and have no children in common — is cancelled in its entirety. If you currently have a visa and you are within the two year period, there is nothing further you need to do.
The objective for the repeal is to eliminate the requirement for spouses or partners to cohabit with their sponsor for two years. This will help ensure that sponsored spouses and partners are not potentially placed at an increased risk of vulnerability. It is also to support family reunification and its emphasis on gender equality.
Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by email firstname.lastname@example.org or call 416 733 3193