Family class immigration is in the foundation of the Canadian Citizenship and Immigration policy since the inception of the codified process. One of the objectives of the Immigration and Refugee Protection Act (the Act) is “to see that families are reunited in Canada.”
A family class can be defined as a class of persons who may become permanent residents on the basis of the requirements provided under the Act. Members of the family class include:
- Spouse, common-law or conjugal partner;
- Dependent children including children adopted overseas;
- Father or mother;
- Grandfather or grandmother;
- Orphan under age 18, if sibling, niece or nephew, or grandchild of the sponsor;
- Child under age 18 to be adopted in Canada;
- A relative, if there is no member of the family class who is a Canadian citizen, Indian or permanent resident or who could be sponsored.
The family class category seeks to promote family reunification rather than national economic goals. Citizenship and Immigration Canada is of the opinion that the support of the sponsors assists new immigrants in achieving self-reliance and expediting their contribution to their Canadian community. The family class category has traditionally been the most important and prioritized immigration program in Canada. This tradition has been maintained by the the Act and Regulations.
The family class category now includes common-law partners, conjugal partners and a broader definition of dependent children. Fiancés are no longer included under the family class category. Canadian citizens and permanent residents can no longer sponsor their fiancées from abroad. Current law provides for the equal treatment of common-law couples, including those in a same sex relationship.
Spouses, common-law partners and conjugal partners, and dependent children outside Canada now receive the highest processing priority. Other family class members will no longer receive a processing priority vis-à-vis the economic classes.
The Sponsor– a sponsor is a Canadian citizen or permanent resident who is:
- At least 18 years of age;
- resides in Canada; and
- has filed a sponsorship application
There is an exemption to the residence in Canada requirement in the case of Canadian citizens who reside outside of Canada and seek to sponsor their spouse, common-law partner, conjugal partner or dependent child, provided that the sponsor and the sponsored individual will reside in Canada when the applicant becomes a permanent resident.
The undertaking shall be given to the minister or if the sponsor lives in a province which have a criteria regarding such undertaking, then to the competent authority of such province (Only in Quebec). All sponsors are required to sign an undertaking to provide the sponsored person with the basic requirements from the day they enter Canada until the term of the undertaking terminates. The undertaking is a contract between the sponsor(s) and CIC that the sponsor will repay the government for any social assistance payments made to the sponsored person. Sponsors remain obligated to the undertaking agreement for the entire period of the contract, even in a change of circumstances such as marital breakdown, separation, divorce, or a financial change in circumstances.
In the case of a spouse, common-law partner or conjugal partner, a sponsor is required to sign an undertaking to reimburse the federal or provincial governments from the date in which they become a permanent resident for the period of three (3) years. If the spouse, common-law partner or conjugal partner has entered Canada on a temporary resident permit, either prior to or after filing the application for permanent residence to Canada, from the date of entry to Canada, the three-year sponsorship obligation commences on the date of entry with the temporary resident permit.
In the case of a child under the age of 22 years, of either the sponsor or the spouse, common-law partner, or conjugal partner, the obligation commences on the day that the child becomes a permanent resident of Canada for the period of ten (10) years or until the child reaches the age of 25 years, whichever is earlier.
In the case of a dependent child over the age of 22 years, of either the sponsor or the spouse, common-law partner, or conjugal partner, the obligation commences on the day that the dependent child becomes a permanent resident, for a period of three years.
In the case of all other members of the family class, the sponsorship obligation extends for a period of ten (10) years from the date in which the member of the family class becomes a permanent resident.
Note: Only a spouse or common-law partner can co-sign a sponsorship application. Brothers and sisters CAN NOT be co-signers.
A persons shall not be considered a members of family class if the foreign national (sponsored person) is the sponsors spouse, common – law partner or conjugal partner:
- is under age of 16
- if sponsor has an existing sponsorship undertaking in respect of a spouse, common-law partner or conjugal partner and its period has not ended.
- if the foreign national is the sponsors spouse and if such sponsor or such foreign national was, at time of their marriage, the spouse of another person, or
- if sponsor has lived separate and apart from the foreign national for at least 1 year
- if the sponsor is the common law partner or conjugal partner of another person
- if foreign national is the common law partner or conjugal partner of another person
- if the sponsor had previously made an application for permanent residency and had got it and when he made such application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
But this does not apply if at time of such application the officer determined that such foreign national are not required to be examined. This exception does not apply if an officer determines that, at the time of such application, the sponsor was informed that the foreign national could be examined and the sponsor was able to make the foreign national available for examination but did not do so or the foreign national did not appear for examination or Such foreign national was the sponsors spouse, was living separate and apart from the sponsor, and was not examined.
Further requirements for sponsorship:
The sponsor must meet the following requirements:
- intends to fulfill the obligations in the sponsorship 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 offence under the Criminal Code, or convicted outside Canada of an offence which, if committed in Canada, would be a sexual offence or an offence under the Criminal Code, against the conjugal partner, a relative of the sponsor, or of the sponsor’s spouse or of the sponsor’s common-law partner, including a dependent child or other family member of the sponsor, the sponsor’ s spouse, conjugal partner or of the sponsor’s common-law partner;
- is not in default of an undertaking or support obligations ordered by a court;
- is not in default of a debt owed under the IRPA;
- is not an undercharged bankrupt under the Bankruptcy and Insolvency Act;
- is not in receipt of social assistance, other than for a reason of disability;
- is not in default of a previous sponsorship obligation or undertaking;
- has a total income equal to the minimum necessary income for the number being sponsored.
- In case of spousal sponsorship, common law or conjugal sponsorship, the sponsor must not have sponsored another spouse in last 3 years at the time of sponsorship.
- If the Sponsor had become a permanent resident as a result of sponsorship of his/her former spouse’s sponsorship, the Sponsor cannot file a new sponsorship unless 5 years have been elapsed since the Sponsor became a permanent resident.
The bar on sponsorship is removed where the sponsor’s conviction has been pardoned or has been revoked under the Criminal Records Act or where the final determination was an acquittal. In addition, if a period of five years or more has elapsed since the completion of the sentence imposed, the sponsor may sponsor a member of the family class. Likewise, for foreign offences, the bar is lifted in the case of a final acquittal, or if a period of five years or more has elapsed since the completion of the sentence imposed, and the sponsor has demonstrated that he has been rehabilitated.
Exception to minimum necessary income:
A sponsor is not required to meet the minimum income required if the sponsored person is:
- A sponsor’s spouse, common-law partner or conjugal partner and has no dependent children;
- A sponsor’s spouse, common-law partner or conjugal partner and has a dependent child who has no dependent children; or
- A dependent child of the sponsor who has no dependent children or a person who meets the definition of a dependent child and in respect of whom the sponsor became the guardian while the person was under the age of 18, or a person under 18 years of age whom the sponsor intends to adopt and meets other specified requirements referred to Immigration Regulations.
A sponsor and a member of the family class, over the age of 22 years (or if less than 22 years is spouse, common-law partner or conjugal partner of the sponsor) must sign a sponsorship agreement which contains the following elements:
- A statement that the sponsor will provide for the basic requirements of the person and their accompanying dependants during the period of the undertaking;
- A declaration from the sponsor that the sponsorship obligations do not prevent the honouring of the agreement with the member of the family class and the undertaking to the Minister of Citizenship and Immigration; and
- A statement from the member of the family class that they will make every reasonable effort to provide for the basic requirements for themselves and their accompanying dependants.
A sponsor must meet the Lower Income Cut Off (“LICO”) requirement for the given geographical area applicable to the family unit. The onus is on the applicant to demonstrate that his/her income meets the minimum income requirement specified in the LICO figures published from time to time by Statistics Canada. The sponsor’s income is calculated based on the previous year’s CRA Notice of Assessment. A sponsor can bolster the total income by including an income-earning spouse or common-law partner as a co-signer on the undertaking of assistance.
Sponsorship undertakings may be co-signed by a sponsor’s spouse or common-law partner. Co-signing of sponsorship undertakings can potentially enhance the income level in order to meet the LICO requirements for sponsorship.
LICO for year 2013 is-
|Size of family||Minimum Necessary Income|
|1 person (the sponsor)||$23,298|
|for each additional person add:||$6,268|
Dependent Children under 22 ( effective from January 1, 2014, dependent child means a child less than 18 years of age):
The current regulations expand the definition of dependent child by raising the age from 19 years to 22 years where a child is not a spouse or in a common-law relationship at the time of sponsorship and at the time the immigration visa is issued. A dependent child who is single, divorced, widowed or whose marriage has been annulled is not a spouse (that is he is valid to immigrate) similarly, if the dependent child was involved in a common-law relationship but that relationship no longer exists, they may be considered to meet the definition.
Dependent children over 22 ( effective from January 1, 2014, no child over 18 years of age is considered dependent unless child is dependent due to medical reasons):
At the time that the visa application is determined, children over the age of 22 years may also be considered dependents if they have been financially dependent on their parents since the age of 22 years. A child who became a spouse or common-partner before 22 years of age and who continues as a full-time student financially dependent on their parents will also fall within the regulatory definition of a dependent child. In order to qualify as a dependent child, children over the age of 22 must demonstrate that they have been enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and is actively pursuing a course of academic, professional or vocational training on a full-time basis.
This also includes children with physical or mentally condition. The applicant is required to submit documentation regarding the dependency of the children such as documentation evidencing that the child is a full-time student and is “substantially” supported by the parent. School enrollment confirmations, tuition receipts, course curriculum and transcripts provide evidence of continuous full-time enrollment in a post-secondary institution. Parents should also provide letters from the school or bank records indicating that they are supporting the dependent child, particularly if the child is not living at home.
The Hague Convention on Protection of Children and Cooperation in respect of Inter-Country Adoption governs all provincial and territorial international adoption programs in Canada where the child’s country of residence is a signatory. In Canada, child welfare and adoption falls within provincial and territorial jurisdiction and each province and territory has specific international adoption programs. In cases where the child’s country is not a signatory to the Hague Convention, the adoption must have been concluded in accordance with the intent and spirit of the Convention because Canada is a signatory. The thrust of the legislation is to protect the best interests of the child, which are deemed to be protected if the following conditions are met in respect of the adoption.
- A competent authority has conducted or approved a home study of the adoptive parents;
- Before the adoption, the child’s parents gave their free and informed consent to the child’s adoption;
- The adoption created a genuine parent-child relationship;
- The adoption was in accordance with the laws of the place where the adoption took place;
- The adoption was in accordance with the law of the sponsor’s place of residence and, if the sponsor resided in Canada at the time the adoption took place, the competent authority of the child’s province of intended destination has stated in writing that it does not object to the adoption; and
- If the Hague convention applies, that all relevant countries complied therewith. Moreover, adoption for greater certainty means an adoption that creates a legal parent-child relationship and severs the pre-existing legal parent-child relationship. Such relation must not be in bad faith or relation of convenience.
In cases where a child is adopted after reaching the age of 18, (besides other requirements as such) a genuine parent-child relationship must have been established before an applicant turned 18 years and continues to exist.
Orphaned children can also be sponsored.
- An orphan is a person whose father and mother are both deceased
- Must be the sponsor’s brother, sister, nephew, niece, grandson or granddaughter.
- Must be under 18 years of age
- Must be unmarried and not in a common law relationship.
NOTE: Children under guardianship arrangements are not members of the family class. Repealed
Bars to Sponsorship:
A sponsorship application will not be approved if:
- Spouse or common-law partner is under the age of 16 years;
- Where the sponsor’s obligations under a previous sponsorship undertaking in relation to a spouse or common-law partner have not expired;
- Sponsor or spouse was married at the time of their marriage;
- Sponsor has lived separate and apart from the foreign national for at least one year and either the sponsor or the common-law partner or conjugal partner is now the common-law partner or conjugal partner of another person;
- Sponsor obtained permanent residence and at the time of their own application the spouse was a non-accompanying family member, or a former spouse or former common-law partner and was not examined.
One of the most controversial sections of the IRPR are the bars to sponsorship, which effectively bars from sponsorship persons who would otherwise be members of the family class by virtue of their relationship to the sponsor if they were not examined as part of the sponsor’s application for permanent residence. Since there is no exception to the requirement that family members must be declared (and examined) to qualify for landing, this provision has resulted in some harsh decisions against the subsequent sponsorship of unexamined children. The courts have so far upheld the provision and have indicated that the applicant may request consideration based on humanitarian and compassionate circumstances and the best interests of the children to overcome the strict interpretation.
Sponsors living outside Canada :
Canadian citizens living outside of Canada may sponsor their spouse, common law partner, conjugal partner or dependent children without dependent children of their own, provided that they are able to demonstrate that they will reside in Canada after their sponsored landing(s). Permanent residents residing abroad may not sponsor their family from outside Canada. Furthermore, a spouse or common law partner in Canada may only sponsor their spouse or common law partner if they are cohabiting in Canada; otherwise, the application must be filed through a visa office.
Sponsorship applications may be made inland or outside of Canada. The IRPR has created an inland landing class for sponsored spouses, common-law partners and their dependent children. Conjugal partners cannot be sponsored from within Canada.
In the case of applications for permanent residence filed outside of Canada, once the sponsorship undertaking is approved by the inland case processing centre, the approval is forwarded to the visa office specified by the sponsor and wherein the member of the family class resides or is a national. The visa office is responsible for determining that the family class member and all accompanying dependents are not inadmissible to Canada and will verify their family class relationship to the sponsor. The member of the family class will be required to meet all immigration medical and security requirements. In the case of spouses, common-law partners and conjugal partners, the visa office will make a determination regarding the bona fides of the relationship.
Where the application is filed within Canada, the sponsorship undertaking and permanent residence portions of the application can be filed together at the case processing centre. The case processing Centre makes a determination of the sponsor’s eligibility to sponsor as well as the foreign national’s admissibility to Canada. Applications which require further investigation will be forwarded to a local Citizenship and Immigration Office for a final decision, and potentially include a request for an interview. Once an individual is approved in principle as a member of the In-Canada Family Class, they are eligible to apply for an open work permit or student permit while their application for permanent residence continues to be processed by the case processing Centre in Canada.
The permanent residence application must include evidence of the family class relationship such as birth or marriage certificates authenticating blood or marriage relationships, court guardianship, custody or adoption orders and so forth. The sponsor and applicant should provide the best documentation and evidence of the family class relationship available to them. Where clear documentary evidence is not available or if the documentation provided is unconvincing, the visa officer may request genetic testing to prove a relationship.
Some ground of inadmissibility:
Security – a foreign national is inadmissible on security grounds for
- engaging in any act of espionage or subversion
- engaging in or instigating the subversion by force of any government
- engaging in terrorism
- danger to security of Canada
- for acts of violence that would or might endanger the lives or safety of persons in Canada
- being member of any organization that is engaged in any of the above acts.
Exception- above matters does not constitute inadmissibility of PR or foreign nation who satisfies the minister that their presence in Canada would not be detrimental to the national interest.
Human or international rights violation – a permanent resident or a foreign national can be found inadmissible on this ground.
Serious criminality – a permanent resident or a foreign national is inadmissible on grounds of serious criminality for
- having been convicted in Canada of an offence under an act of parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an act of parliament for which a term of imprisonment of more that six months has been imposed;
- having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an act of parliament punishable by a maximum term of imprisonment of at least 10 years;
- or, committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an act of parliament punishable by a maximum term of imprisonment of at least 10 years.
- Organized criminality- a permanent resident or a foreign national is inadmissible on grounds of organized criminality for being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering.
A foreign national is inadmissible on health grounds if their health condition:
a) is likely to be a danger to public health
b) is likely to be a danger to public safety or
c) might reasonably be expected to cause excessive demand on health or social services except a foreign national who-
- is a member of family class and to be a spouse, common-law partner or child of a sponsor
- applied for a PR visa as a conventional refugee or a person in similar circumstance.
- is a protected person
- is the spouse, common law partner, child or other family member of a any of above.
“Excessive demand” is a demand on health or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required by these regulations, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years, or a demand on health services or social services that would add to existing waiting lists and would increase the rate of mortality(deaths) and morbidity(means unhealthiness) in Canada as a result of the denial or delay in the provision of those services to Canadian citizens or Permanent Residents
a foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themselves or any other person who is dependent on them, and have not satisfied an officer that adequate arrangements for care and support, other than those that involve social assistance, have been made.
A permanent resident of Canada (a sponsor) who is found to have misrepresented a material fact on their application may be removed from Canada. In case of a Canadian citizen, a sponsor may be convicted and fined up to $100,000 or imprisoned for a term of not more than five years. Likewise, the foreign national being sponsored may be found inadmissible to Canada.
A permanent resident or a foreign national shall be inadmissible for 2 years from the date of a final determination of inadmissibility if such determination is made outside Canada and from the date of removal order if such determination is made inside Canada.
Non compliance with the Act – a foreign national is inadmissible if there is any violation of the Act.
Inadmissible family member – a foreign national, other that a protected person, is inadmissible on grounds of an inadmissible family member if their accompanying family member or, in certain circumstances, their non accompanying family member is inadmissible or they are an accompanying family member of an inadmissible person.