Articles

Family Class Article

The new Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA) received Royal Assent on November 1, 2001 . Immigration Regulations were prepublished on December 15, 2001 and March 9, 2002 . The New IRPA and Regulations will come into force on June 28, 2002 .

One of the stated objectives in the Immigration and Protection Act (IRPA) is to see that families are united in Canada .

Membership in the Family Class

Under the IRPA, a close relative may be selected as a member of the family class on the basis of their relationship to the spouse, common-law partner, children including those that qualify under the definitions and requirements for adoption and guardianship, parents, grandparents or other prescribed family member of a Canadian citizen or permanent resident.

Common-law Partners

The novel concept of common-law partner is a new provision in the IRPA and means an individual who is cohabiting in a conjugal relationship having so cohabited for a period of at least one year. The relationship includes same-sex relationships. An exception is also provided to a common-law partner who is unable to meet the one-year cohabitation rule by reason of persecution of any form of penal control. Rules that apply to spouses also apply to common-law partners. This means that the sponsor does not have to meet the minimum income level in order to qualify as a sponsor under the Regulations.

Bad Faith Relationships

Relationships of Convenience are excluded from membership in the family class. Even if the relationship is genuine, if it was entered into primarily for immigration purposes, any sponsored application for permanent residence can still be refused. This provision could have significant impact on culturally based arranged marriages or other relationships.

Fiancées and Intended Common-Law Partners

One of the significant changes under the IRPA and Regulations is that fiancées and intended Common-Law Partners are excluded from the definition of “family class”. Sponsored applications of such a nature can only be made under humanitarian and compassionate grounds. The most significant effect is that traditional appeal rights to the Immigration Appeal Division are not available to the sponsor of fiancées or intended common-law partners if their applications are refused. The Sponsor will be required to meet the minimum income requirements not imposed on spouses, common-law partners or children. Finally, the fiancée or intended common-law partner will be required to meet the medical requirements and not have the benefit of the exemption from medical inadmissibility on excessive demand grounds.

Dependent Children

The most significant change to the definition of dependent child under the IRPA and Regulations is that children to day may be financially dependant on their parents beyond the age of 19. A child could be dependent on his or her parents beyond the age of 22 because he or she is a full time student or by reasons of physical or mental disability.

Sponsorship of Family Class Members

An application for permanent residence by a Member of the Family Class require the sponsor, or relative in Canada to give a written undertaking to assist such applicants. This means that the sponsor undertakes to provide for the accommodation, care and maintenance of the prospective immigrant. The undertaking is enforceable against the sponsor but not the prospective immigrant because the latter is not a party to the contract.

Significant changes from Previous Regime

The most significant changes with respect to sponsorship eligibility, duration and enforcement are as follows:

•  Reduction of the age of eligibility of sponsorship by a Canadian citizen or permanent resident from 19 to 18 years of age;

•  Reduction of the length of the sponsorship undertaking from 10 to 3 years for spouses and common-law partners;

•  Increase of the duration of the sponsorship undertaking for children from a maximum of 10 years to 10 years or age 22, whichever is longer;

•  Simplification of calculation of income for the purpose of sponsorship by allowing the sponsor to use the last year's Notice of Assessment or filed federal income tax return as evidence of adequate income;

•  Permission for the sponsor to use to other evidence of adequate income.

As indicated previously, sponsors of spouses and common-law partners remain exempt from the requirement to meet the minimum income level for family unites set out in the Regulations.

Sponsorship Enforcement

Under the IRPA and Regulations, there is a greater willingness shown by lawmakers to enforce undertakings made by sponsors who failed to support family members. The most significant changes are as follows:

•  Ineligibility of sponsorship for those who are in default of court-ordered spousal or child support payments unless demonstration is made that obligations have been resolved;

•  Ineligibility of sponsorship for those on social assistance except for reasons of disability unless ineligibility is waived on public policy or humanitarian and compassionate grounds;

•  Ineligibility of sponsorship for sponsor convicted of crime related to domestic abuse and no pardon granted;

•  Suspension of the processing of a sponsored application where the sponsor's Canadian citizenship is in the process of being revoked.

International Adoption and Guardianship

The British Columbia Adoption Act , R.S.B.C. 1996 c. 5 as amended has incorporated the Hague Convention on Protection of Children and Cooperation as part of B.C.'s domestic law. The purpose of the Hague Convention is to promote adoptions that are in the best interest of children and prevent adoptions for the purpose of child trafficking and undue gain.

International Adoptions and guardianships under IRPA are treated as family class applications. The significant changes from the previous Immigration Act and Regulations are as follows:

•  “guardianship” means the relationship between a person and a child whereby the person has by a written decision of the competent authority of the country where the child resides has been entrusted with the legal responsibility for the child and is authorized to act on its behalf.

•  “full adoption” means an adoption that severs the existing relationship of parent and child;

•  “simple adoption” means an adoption that does not sever the relationship between the child and its existing parents.

IRPA and Regulations have been expanded to include guardianships in recognition that no all jurisdictions permit adoptions of children in need of care such as in Muslim countries. It should be noted that the provisions dealing with guardianships have not yet been proclaimed into law .

Children who are the subject of an adoption are not admissible to Canada unless there has been complete medical disclosure to the adoptive parents and provide sponsors of adoption and guardianships to appeal refusals to the Immigration Appeal Division. It should be noted that the provision dealing with non bona fide or bad faith relationships would apply to applicants that are subject to adoption orders.

Andrew Z. Wlodyka obtained his law degree from the University of British Columbia . He was called to the Bar of British Columbia in 1978, Mr. Wlodyka is associate counsel with the Vancouver Law firm of Lowe & Company in the practice of Immigration Law. He was a member of the Immigration Appeal Board from 1986 to 1988. Mr. Wlodyka was Assistant Deputy Chair of the Immigration Appeal Division, Immigration and Refugee Board from 1989 to 1993. He is the Past Chair of the Immigration Section, Canadian Bar Association, B.C. Branch. He presently serves as Member at Large representing British Columbia in the National Immigration Section of the Canadian Bar Association. He has written articles and papers in the area of Immigration Law and his most recent publication "Appeals before the Immigration Appeal Division" was published by Carswell in 1996.