Canadian Family Immigration
Written by Henry J. Chang
Updated April 8, 2011
On June 28, 2002, the Immigration and Refugee Protection Act ("IRPA") [S.C. 2001, c.27] became law. It replaced the previous Immigration Act, Chapter I-2 [Repealed, 2001, c. 27, s. 274]. As a result, the framework for family immigration changed significantly.
Who is Eligible?
According to S. 12 of the IRPA, a foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent, or other prescribed family member of a Canadian citizen or permanent resident. The related regulations define who falls within S. 12 of the IRPA.
The Family Class
Section 117(1) of the Immigration and Refugee Protection Regulations ("IRPR") [SOR/2002-227] states that the following are considered members of the family class:
The term "spouse" is not defined. However, the term "common-law partner" is defined in S. 1(3) as an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year. The term "conjugal partner" is also defined in S. 1(3) as a foreign national who is in a conjugal relationship with the sponsor and has been in that relationship for a period of at least one year.
The term "dependent child" is defined in S. 1(3) as a child who:
- The sponsor's spouse, common-law partner, or conjugal partner [The addition of "common-law partner" and "conjugal partner" was the result of the IRPA. These terms include same-sex relationships.];
- A dependent child of the sponsor;
- The sponsor's mother or father;
- The sponsor's grandparent;
- REPEALED: A person described in subparagraph (b)(i), (ii), or (iii) of the definition "dependent child" (contained in Section 2 of the IRPR) where the sponsor became his or her guardian while the person was under the age of 18, if:
[This category of guardianship was included in the IRPR in June 2002, in recognition of the fact that in some countries it is not possible for children in need of care to be adopted. By authorizing their sponsorship (in specific circumstances), this section would have made it possible to include children who were in a guardianship relationship as part of the family class. However, the section was later repealed on March 22, 2005 (SOR/205-61, s. 3)]
- the person is an orphan or the person has been declared, by a competent authority in the country where the person resides, to be abandoned,
- it is not possible for the person to be adopted in the country where they reside,
- the competent authority of the country where the person resides has authorized the person in writing to leave the country in the company of the sponsor or their authorized representative, and
- the sponsor resided in Canada at the time they became the person's guardian and the competent authority of the person's province of intended destination has issued a written statement confirming that it does not oppose the guardianship and that the guardianship will be recognized for the purposes of provincial law;
- The person is an orphan who is under 18 years of age, without a spouse or common-law partner, and who is
- the brother or sister of the sponsor,
- the niece or nephew of the sponsor, or
- the grandchild of the sponsor;
- A person under 18 years of age whom the sponsor intends to adopt in Canada if
[Canada became a partner in the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoptions in 1993 (the "Convention"). The Convention was written to help countries co-operate and regulate international adoptions. Before a child can be adopted from one country into another, the convention requires that authorities in both countries agree to proceed with the adoption. In the case of Canadian families wanting to adopt a child from another country, their provincial authorities must agree with authorities in the child's country of origin. Alternative requirements are provided for cases where the Convention does not apply.]
- the adoption is not primarily for the purpose of acquiring any privilege or status under the IRPA,
- where the adoption is an international adoption and the country in which the person resides and their province of intended destination are parties to the Hague Convention on Adoption, the competent authority of the country and of the province have approved the adoption in writing as conforming to that Convention, and
- where the adoption is an international adoption and either the country in which the person resides or the person's province of intended destination is not a party to the Hague Convention on Adoption
- the person has been placed for adoption in the country in which they reside or other otherwise legally available in that country for adoption and there is no evidence that the intended adoption is for the purpose of child trafficking or undue gain within the meaning of the Hague Convention on Adoption, and
- the competent authority of the person's province of intended destination has stated in writing that it does not object to the adoption; or
- a relative of the sponsor, regardless of age, if the sponsor does not have a spouse, common-law partner, conjugal partner, a child, a mother or father, a brother or sister, a niece or nephew, a grandparent or an aunt or uncle
- who is a Canadian citizen, Indian [any person registered as an Indian under the Indian Act], or permanent resident, or
- whose application to enter and remain in Canada as a permanent resident the sponsor may otherwise sponsor.
[The cutoff age for a dependent child under the previous Immigration Act was 19 years of age. The IRPA raised the maximum age to 22.]
Spouse or Common-Law Partner in Canada Class
According to S. 124 of the IRPR, Canadian citizens and landed immigrants may also sponsor a spouse or common-law partner from within Canada if they have been living with the sponsor in Canada and have maintained their temporary resident status (i.e. nonimmigrant status). The dependent children of a person who falls under this class, whether living inside or outside of Canada, are included.
According to SS. 117(9) and 125 of the IRPR, the following relationships are excluded from the "family class" and the "spouse or common law partner in Canada class":
- Has one of the following relationships with the parent, namely,
- 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
- is the adopted child of the parent; and
- Is in one of the following situations of dependency, namely,
- is less than 22 years of age and without a spouse or common-law partner,
- has depended substantially on the financial support of the parent since before the age of 22 (or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner) and since before the age of 22 (or since becoming a spouse or common law partner) has been a student
- continuously enrolled in and attending a post-secondary institution that is accredited by the relevant governmental authority, and
- actively pursuing a course of academic, professional, or vocational training on a full-time basis, or
- is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition.
In addition, fiances and intending common-law partners are now excluded from both the "family class" and the "spouse or common-law partner in Canada class". They may now only apply for permanent residence under humanitarian and compassionate grounds, pursuant to S. 25(1) of the IRPA.
Finally, S. 4 of the IRPR excludes what it calls "bad faith" relationships. It states that a foreign national cannot qualify as a spouse, common-law partner, conjugal partner, or adopted child if the marriage, common-law partnership, conjugal partnership, or adoption is not genuine or was entered into primarily for the purpose of acquiring any status or privilege under the IRPA. In theory, a family class application may be denied even if the marriage, common-law partnership, conjugal relationship, or adoption is genuine.
Interim Policy on Civil Marriages between Same-Sex Persons
For immigration purposes only, Citizenship and Immigration Canada has adopted an interim policy to recognize the validity of civil marriages that took place in either Ontario, British Columbia, Quebec, Yukon, Manitoba or Nova Scotia between a foreign national and his/her Canadian citizen or permanent resident same-sex partner. Therefore, marriage certificates issued by provincial and territorial authorities in Ontario (since 10 June 2003), British Columbia (since 8 July 2003), Quebec (since 19 March 2004), Yukon (since 14 July 2004), Manitoba (since 16 September 2004) or Nova Scotia (since 24 September 2004) are considered legally valid documents in support of an immigration application.
The issue of marriage and the legal recognition of same-sex unions has been referred to the Supreme Court of Canada and the Government of Canada has indicated that the associated draft Bill will not be considered by Parliament before the decision of the Supreme Court. Citizenship and Immigration Canada will revisit its interim policy, as required, after the ruling of the Supreme Court of Canada on the marriage reference. Meanwhile, in accordance with existing policies and programs, same-sex partners who marry in foreign jurisdictions, or two foreign nationals who marry in Canada, may qualify as common-law or conjugal partners, as applicable.
Requirements for the Sponsor
Who Can Be a Sponsor
Pursuant to S. 130 of the IRPR, the sponsor must be a Canadian citizen or permanent resident (landed immigrant) who:
- the sponsor's spouse, common-law partner, or conjugal partner, if the foreign national is under 16 years of age;
- the sponsor's spouse, common-law partner, or conjugal partner, if the sponsor has an existing undertaking in respect of a spouse, common-partner, or conjugal partner and the period of the undertaking has not ended;
- The sponsor's spouse and
- the sponsor or foreign national was, at the time of their marriage, the spouse of another person, or
- the sponsor has lived separate and apart from the foreign national for at least one year and
- the sponsor is the common-law partner of another person or the conjugal partner of another foreign national, or
- the foreign national is the common-law partner of another person or the conjugal partner of another sponsor; or
- 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 or a former spouse or former common-law partner of the sponsor and was not examined.
However, a Canadian citizen who does not reside in Canada may still sponsor their spouse, common-law partner, conjugal partner, or dependent child (who has no dependent children) if the sponsor will reside in Canada when the applicant becomes a permanent resident.
Undertaking of Support
The sponsor must submit an undertaking that obliges him or her to reimburse the government for every benefit that the sponsored foreign national (or his or her dependents) receives as social assistance during the validity period of the undertaking. According to S. 132(a) of the IRPR, the validity period of the undertaking begins:
- Is at least 18 years of age (the minimum age was previously 19); and
- Resides in Canada.
According to S. 132(b), the validity period of the undertaking ends:
- if the foreign national enters Canada with a temporary resident permit, on the day of that entry,
- if the foreign national is in Canada, on the day that he or she obtains a temporary resident permit following an application to remain in Canada as a permanent resident, and
- in any other case, on the day that the foreign national becomes a permanent resident.
According to S. 132(4), in most cases, the sponsor must also sign a Sponsorship Agreement with the foreign national that outlines their mutual commitments to each other. The sponsorship agreement applies where:
- In the case of the sponsor's spouse, common-law partner, or conjugal partner, three years after the date that the foreign national becomes a permanent resident [It was previously ten years];
- In the case of a dependent child of the sponsor or the sponsor's spouse who is less than 22 years of age when he or she becomes a permanent resident:
whichever comes first;
- ten years after the date that the foreign national becomes a permanent resident, or
- the day that the foreign national reaches 25 years of age [Prior to the IRPA, the validity period of the undertaking was ten years in all cases.]
- In the case of a dependent child of the sponsor or the sponsor's spouse, common law partner, or conjugal partner and is 22 years of age or older when he or she becomes a permanent resident, three years after the date that the foreign national becomes a permanent resident; and
- In any other case, ten years after the date that the foreign national becomes a permanent resident.
the sponsor (any any co-sponsor) must enter into an agreement with the foreign national that includes:
- The person to be sponsored is at least 22 years of age; or
- Is less than 22 years of age but is the sponsor's spouse, common-law partner, or conjugal partner;
Disqualification of Sponsor
Section 133(1) of the IRPR states that, from the date that the application is filed until the date of the decision, the sponsor must establish that he or she:
- A statement by the sponsor (and co-sponsor) that he or she will provide for the basic requirements of the foreign national and their accompanying family members during the period of the undertaking;
- A declaration by the sponsor (and co-sponsor) that their financial obligations do not prevent them from honouring their agreement with the foreign national and their undertaking with the government; and
- A statement by the foreign national that he or she will make every reasonable effort to provide for his or her own basic requirements as well as those of accompanying family members.
- Is a sponsor as described in S. 130;
- Intends to fulfil the obligations in the undertaking;
- Is not subject to a removal order;
- Is not detained in any penitentiary, jail, reformatory, or prison;
- Has not been convicted of a sexual offence or an offense under the Criminal Code against:
[A conviction in Canada does not disqualify the sponsor if a pardon has been granted (and is still valid) or if five or more years have elapsed since the completion of the sentence. Similarly, a foreign conviction does not disqualify the sponsor if there has been a final determination of acquittal or if five or more years have elapsed since the completion of the sentence and the sponsor has demonstrated that he or she is rehabilitated.]
- a relative of the sponsor, including a dependent child or other family member of the sponsor,
- a relative of the sponsor's spouse or of the sponsor's common-law partner, including a dependent child or other family member of the sponsor's spouse or of the sponsor's common-law partner, or
- the conjugal partner of the sponsor or a relative of that conjugal partner, including a dependent child or other family member of that conjugal partner;
- Has not been convicted outside Canada or an offence that, if committed in Canada, would constitute an offence referred to above;
- Is not in default of: (i) any undertaking, or (ii) any support payment obligations ordered by the court;
- Is not in default of the repayment of any debt owed to the government, which is referred to in the IRPA
- Is not an undischarged bankrupt under the Bankruptcy and Insolvency Act;
- Has a total income that is at least equal to the minimum necessary income [This requirement does not apply if the sponsored person is: (i) the sponsor's spouse, common law partner, or conjugal partner and has no dependent children; (ii) the sponsor's spouse, common law partner or conjugal partner and has a dependent child who has no dependent children; and (iii) a dependent child of the sponsor who has no dependent children or a person referred to in S. 117(1)(e) or S. 117(1)(g).]
- Is not in receipt of social assistance for a reason other than disability.