Love Without Borders: Spousal Sponsorship Applications – Part 1

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Zeynab Ziaie is a graduate of the Faculty of Law at the University of Toronto and a lawyer licensed to practice in Ontario and New York. Her legal practice focuses on immigration and business law. She often works with clients to find suitable solutions in complex immigration and citizenship cases and represents clients at all levels of court. She can be reached at zeynab@ziaielaw.com.

Love knows no boundaries and thankfully the Canadian immigration system allows eligible Canadian citizens and permanent residents to apply to be reunited with their eligible non-Canadian spouses and dependent children.

If you find yourself in this situation, you need to determine if you are “eligible” to sponsor and if the person you are trying to sponsor falls within the definition of “spouse” or “dependent child”.
Are you eligible to sponsor?

In order to be able to sponsor, you must be:

  1. at least 18 years old
  2. be a Canadian citizen, permanent resident or registered under the Canadian Indian Act
  3. prove that you are not receiving social assistance (other than for reason of a disability)
  4. and in the case one of the persons you are sponsoring is a grandchild of the principal applicant (dependent child of a dependent child), you must show that you have enough income to support that child

While both Canadian citizens and permanent residents are eligible to sponsor, the requirements are slightly different for the application based on the sponsor’s legal status in Canada. If you are a permanent resident, you cannot sponsor someone while you are living outside Canada. You will need to return to Canada and live here and then submit an application to sponsor your spouse, partner or dependent child. This can be a little tricky in the case of small children that have to be sponsored by their mother and it is best to consult with a lawyer in this regard. If you are a Canadian citizen, you may begin your sponsorship application from outside of Canada but you will need to prove to the officer that you intend to return to Canada to live permanently once the application has been completed.

There are also important circumstances under which you cannot sponsor. For example you will not be eligible to sponsor if: you have failed to pay for an immigration loan or family support payments, you have failed to provide for basic needs of relatives you previously sponsored and who have received social assistance, you receive social assistance for a reason other than a disability, or you are under a removal order from Canada.

These rules and regulations are a reflection of the social values of Canada. For example in the interest of maintaining the integrity of the immigration system, there is a limitation that prevents applicants trying to use “marriage” and “relationships” as a means to obtain permanent residence in Canada. This means if you received permanent residence by being sponsored as a spouse or partner, you cannot sponsor a new spouse until 5 years has passed since your obtained permanent residence. Another policy concern is the safeguarding of vulnerable persons. Therefore, if a person is convicted of a violent or sexual offence, on an offence causing bodily harm to a relative, he or she may be prevented from sponsoring a spouse or partner.

Who can you sponsor?
You can sponsor a: Spouse, common-law partner, conjugal partner or dependent child.
Spouses: A spouse is someone that you are legally married to. A common-law partner is a person you have been living with in a conjugal relationship for at least one year. A conjugal partner is a person outside of Canada who has a binding relationship with the sponsor for at least one year but cannot live with the sponsor. In order to be eligible to be sponsored, your spouse or partner must be at least 18 years old and you must be able to prove that you have a genuine relationship.

Immigration officers will look carefully at the evidence of your relationship and they are trained to know the customs relevant to various cultural, national or religious practices in order to assess the genuineness of a relationship. In most instances where the relationship is genuine, officers can make a positive determination. However, instances that are unique and out of the ordinary, for example where the marriage is not the first marriage of either partner, or the couple have not met each other’s family members or there is a significant age gap between the couple, the immigration officers will require more evidence to be convinced of the genuineness of the relationship.

The current checklist for these sponsorship applications is very detailed and a high percentage of applications are returned if there is even one missing form or signature. Therefore, it is important for you to compile a complete application or to find appropriate legal representation to assist you in this matter to reduce the probability of mistakes and help avoid any potential delays in your application.

Dependent Children: a child is deemed a “dependent” of his or her parent if he is either under 19 years of age and is not married, or over 19 years and is dependent on his or her parents due to a physical or mental condition. This definition of dependent is set to change in October and will include children up to 22 years old.

 

Your Financial Undertaking and Conditional Permanent Residence

When you sponsor your spouse, partner or dependent child you are required to provide an undertaking that you will support them financially and they will not use social assistance. For spouses and dependent children over 19 years, this undertaking is 3 years. For dependent children under 19, the undertaking is 10 years or until they turn 22 years old. If they use social assistance during this time period, you are liable to pay back these amounts to the government and you will be prevented from making any future sponsorship applications until any such debt is settled.

Finally, you should be aware that the permanent residence that your spouse or partner receives will no longer be conditional. Based on changes introduced by the Liberal government in April 2017, there is no longer a condition that the couple have to live together or have children together in order to obtain and maintain their permanent residence. Any applicants that landed in Canada with this condition should note that the condition no longer applies.

Changes in Eligibility, Definitions and Program Requirements
As the requirements and definitions related to these sponsorship applications is changing, you will benefit from analyzing your case carefully with a lawyer to ensure that you are qualified to sponsor and that your relative is eligible to be sponsored. Next week I will be writing about the differences between applying for sponsorship from inside or outside Canada and what are some of the interim options that you have while your sponsorship application is in process.

 

We would like to hear from your feedback. Please send any immigration or citizenship questions that you would like addressed in future articles to zeynab@ziaielaw.com.
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Zeynab Ziaie is a graduate of the Faculty of Law at the University of Toronto and a lawyer licensed to practice in Ontario and New York. Her legal practice focuses on immigration and business law. She often works with clients to find suitable solutions in complex immigration and citizenship cases and represents clients at all levels of court.

Legal Disclaimer: This information is not intended as legal advice or opinion. You should always seek specialized legal advice with regards to your situation as the facts of each case are unique and the application of law varies in every case.
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