The Alberta Immigration Nominee Program (Last updated January 16, 2017)

The Alberta Immigrant Nominee Program (“AINP“) currently has three streams.

  1. Employer Driven Stream
  2. Strategic Recruitment Stream
  3. Self-Employed Farmer Stream

Employer Driven Stream

The AINP Employer-Driven Stream is for:

  • Alberta Employers who want to retain a foreign worker on a permanent, full-time basis where there is a challenge finding Albertans/Canadians to fill the position; and
  • Foreign workers with a permanent, full-time job offer from an Alberta Employer who intend to live and work in Alberta permanently.

It includes the following substreams:

Please note that individuals in the following circumstances are not eligible under the Strategic Recruitment Stream:

  • Refugee claimants, or individuals involved in a federal appeal or removal process;
  • Live-in caregivers currently living in Canada;
  • Temporary foreign workers working and residing in a province other than Alberta; and
  • International students studying in Canada and doing co-op work placements or internships as part of their study program

Skilled Worker Category

In order to be eligible under the Skilled Worker Category, the employer must:

  • Be incorporated or registered as a business in Alberta by or under an act of the legislature of a province or the Parliament of Canada and operating as a business that has an established production capability, plant or place of business in Alberta;
  • Provide a job offer to the Candidate for permanent, full-time employment in a skilled occupation;
  • Provide a job offer to the Candidate that meets Alberta’s employment and wage standards and does not conflict with existing collective bargaining agreements;
  • If the Candidate is already working in Alberta, then provide proof of a Labour Market Impact Assessment (an “LMIA“), if applicable and compliance with its conditions (i.e. salary
    and working conditions), or alternatively, an LMIA exemption (LMIA exempt employers must show that the wages and benefits meet industry standards);
  • Clearly show the need for the position and that you have made a significant effort to hire a Canadian or permanent resident of Canada for the position only if the Candidate is not currently working in Alberta (is abroad).

There are additional requirements for occupations in the fields of Early Childhood Educators and Child Care Staff.

As well, in order to be eligible under the Skilled Worker Category, the Candidate must:

  • Clearly show in the application that he/she is able to and intend to live permanently in Alberta;
  • Have related education, training, previous work experience, and any Alberta licensing needed for the position and to meet AINP criteria;
  • Provide a copy of a valid work permit if the Candidate is already working in Alberta.
  • Provide proof of your legal status in the Candidate’s country of residence if they are not living in Alberta.

The following are not eligible under the AINP Employer-Driven Stream, Skilled Worker Category:

  • Supervisors, foremen and tradespeople, working in a Compulsory or Optional Trade in Alberta (including Chefs, Cooks, and Line Cooks).  Compulsory and Optional Trades are eligible under the Strategic Recruitment Stream, Compulsory and Optional Trades Category; and
  • Clergy, Elementary and Secondary School Teachers, Professional Athletes and Dental Laboratory Bench Workers.

International Graduate Category

In order to be eligible under the International Graduate Category, the employer must:

  • Be incorporated or registered as a business in Alberta by or under an act of the legislature of a province or the Parliament of Canada and operating as a business that has an established production capability, plant or place of business in Alberta;
  • Provide a job offer to the Candidate for permanent, full-time employment in a skilled occupation, or in a NOC C position;
  • Provide a job offer to the Candidate that meets Alberta’s employment and wage standards and does not conflict with existing collective bargaining agreements; and
  • Show that the wages offered meet industry standards as per the Alberta Learning Information Service website.

As well, in order to be eligible under the International Graduates Category, the Candidate must:

  • Clearly show in the application that he/she is able to and intend to live permanently in Alberta;
  • Be working full-time in Alberta at the time of the application for an Alberta employer supporting the nomination;
  • Be performing the same occupation as is stated on the permanent, full-time job offer from the employer.;
  • Have obtained a diploma or degree from an educational program of at least 1 year in duration from a publicly funded post-secondary institution in Canada or an approved private post-secondary institution in Alberta.
  • Have a current and valid Post-Graduate Work Permit;
  • If working in a NOC C occupation, have passed a language test showing a minimum language benchmark.

The following are not eligible under the AINP Employer-Driven Stream, Skilled Worker Category:

  • Supervisors, foremen and tradespeople, working in a Compulsory or Optional Trade in Alberta (including Chefs, Cooks, and Line Cooks).  Compulsory and Optional Trades are eligible under the Strategic Recruitment Stream, Compulsory and Optional Trades Category.

Semi-Skilled Workers Category

In order to be eligible under the International Graduate Category, the employer must:

  • Be incorporated or registered as a business in Alberta by or under an act of the legislature of a province or the Parliament of Canada and operating as a business that has an established production capability, plant or place of business in Alberta;
  • Be operating in one of the following five eligible industries under the AINP Semi-Skilled Work Category: food and beverage processing, hotel and lodging, manufacturing, longhaul trucking industry, and food service industry (pilot project) position;
  • Have a LMIA Confirmation for the candidate and meet all the conditions of the LMIA (except for Front Desk Agents/Clerks, for which a LMIA is not required);
  • Provide a settlement and retention plan outlining the employer’s approach to accommodation, settlement, and retention for the candidate; and
  • Meet extensive additional requirements for each industry as described below (I have not reproduced every requirement because they are so numerous, and I strongly recommend that you click the links below prior to determining eligibility):
    • Food and Beverage Processing
      • The five eligible occupations are Food and Beverage Production Workers, Bakery Production Workers, Food and Beverage Processing Equipment Cleaners, Industrial Butchers and Meat Cutters, and Poultry Production Workers;
      • The business must be an agricultural-based industrial food processing plant;
      • Have satisfied recruitment strategies, employment policies and practices, retention and settlement in order to qualify for allocations;
      • The Candidate must complete an interview with the Alberta Agriculture and Forestry staff;
      • Have a total of three years of full-time work experience in your home country prior to arriving in Canada in a physically demanding job similar to that found in the food and beverage processing industry; and
      • Be employed in Alberta for a minimum of three months before applying to the AINP.
    • Hotel and Lodging 
      • Three three eligible occupations are Food and Beverage Servers, Room Attendants, and Front Desk Agents / Clerks;
      • For Food and Beverage Servers and Room Attendants, employers are eligible for 2 to 18 allocations per property per year based on the number of rooms at the hotel.
      • For Front Desk Agents/Clerks, employers may be eligible for one (1) allocation per year per property;
      • Employers must a member in good standing with the Alberta Hotel and Lodging Association;
      • The candidate must have a total of three (3) years of work experience in a job directly related to the hotel and lodging industry (abroad and/or in Canada).
    • Manufacturing
      • The thirty-three (33) manufacturing occupations eligible under AINP range from Shipper/ Receiver to Metal Working Machine Operators, each with special requirements for
        education, experience, health, safety and applicable industry certifications. The list of occupations includes oil and gas well drilling workers and services operators, meaning that internationally recruited workers in these occupations are eligible to immigrate to Alberta.
      • Candidates must have a minimum of 2 years of work experience in a job similar to the employer’s business with at least one of those years consisting of work experience in Canada, and have been employed in Alberta for a minimum of six months before applying to the AINP.
    • Long-Haul Trucking Industry
      • The number ofallocations will be determined according to the number of job offers by the employer that are subject to LMIA’s, the size of the company, and the total number of long haul truck drivers employed by the business. The number of allocations should not exceed ten to fifteen percent (10-15%) of the total complement in the employer’s business. Companies with less than fifty percent (50%) retention rates may be subject to restrictions on allocations.
      • Employers must show that they did satisfactory recruitment;
      • Candidates must be working for an Alberta employer as a long-haul truck driver, have a valid Class 1 driver’s license, and a minimum 6 months employment in Alberta.
    • Foodservice Industry (pilot project)
      • The three eligible occupations are Food and Beverage Servers, Food Counter Attendants, Kitchen Helpers.
      • Employers are limited to one (1) allocation in one (1) of the three (3) occupations (listed above) per restaurant location. Additional requirements for employers to be eligible under this pilot program include a detailed Foreign Worker Settlement Plan identifying opportunities for career training, workplace integration and assistance to the family of the worker;
      • The Candidate must have worked a minimum of 9 months in Alberta and met and exceeded all employer performance standards, and must also have three years of work experience in a job directly related to food and beverage services.

Strategic Recruitment Stream

Under this stream applicants may be able to apply to the AINP without needing an employer to support their application.

It includes the following substreams:

Compulsory and Optional Trades Category

The criteria for the Compulsory and Optional Trades Category include but are not limited to the candidate having to:

  • intend to and be able to live and work permanently in Alberta;
  • a valid Alberta Qualification Certificate in a compulsory or optional trade (PDF), or a valid Alberta Apprenticeship and Industry Training (AIT) Recognized Trade Certificate in a compulsory or optional trade (PDF)
  • be residing in Alberta at the time of application and have a valid work permit to work in Alberta in the trade in which the candidate is certified;
  • show, at the time of application, that the candidate is either currently working in their trade for an Alberta employer or have previously worked in their trade with an Alberta Employer for a minimum of six months in the past two years.
  • if working as a Parts Technician meet language requirements for semi-skilled occupations.

 

In addition to individuals who are not working in an optional or compulsory trade in Alberta (PDF), individuals in the following circumstances are not eligible under the Strategic Recruitment Stream:

  • Refugee claimants, or individuals involved in a federal appeal or removal process;
  • Live-in Caregivers currently living in Canada;
  • Temporary Foreign Workers working and residing in a province other than Alberta; and
  • International students studying in Canada and doing co-op work placements or internships as part of their study program.

Engineering Occupations Category

The criteria for the Engineering Occupations Category include but are not limited to the candidate having to:

  • be currently residing in Alberta;
  • intend to and be able to live permanently in Alberta;
  • provide evidence of related education/training and experience as an engineer, designer or drafter;
  • be currently working or have worked within the last two years in Alberta either directly or on contract for an Alberta Employer in an occupation on the AINP Strategic Recruitment Stream Engineering Occupations List;
  • if the candidate has engineering credentials and is working in an occupation under NOC 0211, 2131, 2132, 2133, 2134, 2141, 2143, 2144, or 2145, provide a “Letter of No Objection” from the Association of Professional Engineers and Geoscientists of Alberta (APEGA) or show that they are registered with APEGA as a foreign licensee.

In addition to individuals who are not working in an optional or compulsory trade in Alberta (PDF), individuals in the following circumstances are not eligible under the Strategic Recruitment Stream:

  • Refugee claimants, or individuals involved in a federal appeal or removal process;
  • Live-in Caregivers currently living in Canada;
  • Temporary Foreign Workers working and residing in a province other than Alberta; and
  • International students studying in Canada and doing co-op work placements or internships as part of their study program.

Post-Graduate Worker

The criteria for the Engineering Occupations Category include but are not limited to the candidate having to:

  • be working in a NOC 0, A, B, or C occupation full-time in Alberta, at the time of application, for an Alberta employer.
  • intend to and be able to live permanently in Alberta;
  • Have obtained a certificate, diploma, degree, or have completed a graduate level program from one of these AINP approved Alberta public and private post-secondary institutions that is at least one year in duration;

In addition to individuals who are not working in an optional or compulsory trade in Alberta (PDF), individuals in the following circumstances are not eligible under the Strategic Recruitment Stream:

  • Individuals working in occupations on the Post-Graduate Worker Category ineligible occupations list.
    • Note: Supervisors, foremen and tradespeople, working in a Compulsory or Optional Trade in Alberta (including Chefs, Cooks, and Line Cooks) are eligible under the Strategic Recruitment Stream, Compulsory and Optional Trades Category.

    Refugee claimants, or individuals involved in a federal appeal or removal process;

  • Live-in Caregivers currently living in Canada;
  • Temporary Foreign Workers working and residing in a province other than Alberta; and
  • International students studying in Canada and doing co-op work placements or internships as part of their study program.

Self-Employed Farmer Stream

The criteria for the Self-Employed Farmer Stream include but are not limited to the candidate having to:

  • Prove that they have farm management skills:
  • have sufficient financial resources to develop a sustainable farming operation, including
    • they must be able to invest a minimum of CDN $500,000 of equity in a primary production farming business in Alberta.
    • they must provide documents that demonstrates theyhave a minimum net worth of CDN $500,000.
  • they must invest in a primary production farming business in Alberta, document their investment intentions, and provide a business plan.

Applications representing the best opportunity for growth relevant to Alberta’s agri-food targets will be given priority.

 

The following are not eligible under the AINP Self-Employed Farmer Stream:

  • Refugee claimants, or individuals involved in a federal appeal or removal process.
  • Live-in caregivers currently living in Canada
  • Temporary Foreign Workers working and residing in a province other than Alberta
  • International students studying in Canada and doing co-op work placements or internships as part of their study program

Borderlines Episode #12 – Tips on making written and oral arguments in court, with Justice Alan Diner

The Honourable Alan S. Diner is a judge with the Federal Court of Canada.   Prior to his appointment, Justice Diner headed Baker & McKenzie LLP’s immigration practice.  He was also involved with managing the establishment and implementation of Ontario’s Provincial Nominee Program for the Ministry of Citizenship and Immigration.

We are grateful to Justice Diner for the time that he took in preparing for this podcast about tips and best practices in appearing before the Federal Court of Canada, including in providing a customised powerpoint, which can be found on our website at http://www.borderlines.ca.  As Justice Diner notes, many of the tips and strategies contained in this episode are applicable beyond judicial review, and will be beneficial to anyone preparing written submissions or making oral presentations.

Justice Diner’s powerpoint:

A review of what we discussed is as follows:

1:18 – Justice Diner describes his history going from being an immigrant in Canada to leading a corporate immigration law practice to becoming a judge with the Federal Court of Canada.

14:30 – We discuss how the practice of immigration law is changing as larger firms and global accounting firms enter the practice area.

18:30 – Justice Diner provides his first three tips to lawyers appearing  in Federal Court, which are to treat everyone with respect, to prepare your case and arguments properly, and to respect timelines.

23:10 – Peter asks Justice Diner whether immigration representatives should consider preparing visa applications with possible litigation in mind and how long judicial review applicant records should be.

28:00 – How many arguments should someone make in a judicial review application?  If one thinks that an immigration officer made 10 mistakes, should the lawyer in a judicial review application list all 10?

35:00 – Given that there is a chance that the judge reading judicial review submissions could be a new judge, how much should lawyers explain what the law is in their legal submissions?

42:30 – When should counsel propose certified questions?

46:00 – Tips for citing cases.

49:30 – Is the increased number of sources of immigration law (legislation, Ministerial Instructions, guidelines, the immigration website, etc.) complicating the Federal Court’s ability to determine whether a decision was reasonable, and counsel’s ability to make arguments?

57:00 – Who makes a better litigator? Someone who is also a solicitor or someone who practices exclusively in judicial reviews and appeals?

1:01:00 – Tips for oral advocacy.

1:12:00 – Justice Diner reminds counsel on the need to balance strong representation of a client with being an officer of the court.

1:17:00 – We end with what might be the most important tip of all – the importance of not procrastinating.


Understanding Judicial Review

Where a visa application has been refused and an applicant is convinced that the decision is unreasonable then it may be advisable to file an Application for Leave to Commence Judicial Review with the Federal Court of Canada (the “Federal Court” or the “Court”).

 

The Federal Court has the jurisdiction to review the decisions of visa officers. The Court will determine whether an immigration officer committed any reviewable errors that should result in the decision being set aside.  Reviewable errors include errors of fact, law, or breaches of procedural fairness.  If an applicant succeeds in Federal Court, then the Court will order that the immigration officer’s decision be set aside, and typically that the application be reconsidered by a different officer.

Usually, a successful judicial review will ultimately result in a positive decision from the second visa officer.  However, this is not always the case. Furthermore, as the Federal Court of Appeal determined in Lee v. Canada (Minister of Citizenship and Immigration), there is no obligation on the second immigration to specifically refer to the order of the Court and provide reasons as to how and why the second decision differs from the first.

In deciding whether to submit a judicial review application it is important to note that the Federal Court will not review or accept new evidence, but, rather, determine if an officer made an error based on the information that was before them.


Judicial Reviews of BC PNP Decisions

As of writing, there have now been two published judicial reviews of British Columbia Provincial Nomination Program (“BC PNP“) refusals.  In each case the judicial review was dismissed.

While both cases were very fact specific, some of the key passages were as follows.

Chaudan v. British Columbia (Ministry of Jobs, Tourism and Skills Training), 2016 BCSC 2142

 

This case essentially stands for the proposition that officers can look beyond an offer of employment to determine whether a proposed job offer meets BC PNP program requirements. Justice Bowden wrote:

In determining whether an applicant met the criterion of PNP, if a decision maker relied only upon a future offer of employment, that might well be unreasonable. Not only would that ignore the factor of past employment over a nine month period but also an offer of employment in the future is not an assurance that the criterion will be met.

Raturi v. British Columbia, 2017 BCSC 9

 

In this case Madam Justice E.A. Arnold-Bailey provided a useful summary of existing jurisprudence on provincial nomination judicial reviews. She wrote:

Moving from more general statements of principle to specific cases more closely aligned to the present case, I note that among the cases referred to by the Respondent are Jiang and Baba. Both these cases deal with provincial nominee programs in other provinces, Manitoba and New Brunswick respectively. In neither case was the denied applicant successful.

Jiang was an appeal from an order of the application judge refusing to quash a decision of the Manitoba Provincial Nominee Program for Business (the “Program”). The appellant, who applied under the economic class pursuant to the business stream, argued that the application judge erred in her analysis of the requirements of procedural fairness and in her conclusion that the Program’s decision was reasonable.

The appellant raised three issues respecting procedural fairness: i) the reconsideration process should have followed the same steps as required for the application process, ii) the lack of appeal in the application process, and iii) the reasons for refusal were inadequate. With respect to the first ground, the Court of Appeal found that there was no provision in the Program for the specific request of reconsideration but rather only a process for re-applying and this did not raise a legitimate expectation that the reconsideration process would be the same as the initial application process. While a decision-maker who affords an exceptional procedural step must still act fairly in regard to that step, the reconsideration process here did not require the very same process as the initial application. By providing the appellant an opportunity to submit additional documentation and for a second interview, the Program conducted the reconsideration in a manner that was fair.

On the second ground, the Court of Appeal found that the Program did not breach the requirements of procedural fairness because it does not provide for an appeal. The Program has the discretion to determine its own procedures, and the fact that the similar skilled workers’ stream provided for an appeal did not mean that the business stream had breached procedural fairness.

Finally, the Court of Appeal found that the reasons were adequate in the circumstances. The initial reasons set out concerns relating to credibility as well as retention (whether the appellant would remain in Manitoba); and while some of these were addressed by the new information provided by the appellant, not all of them were. The reasons for the second decision provided an adequate basis for the application judge to engage in a meaningful judicial review.

The appellant also argued it was unreasonable to refuse the application on reconsideration, and that the application judge did not correctly determine that the Program’s decision was reasonable. While the appellant may have addressed the identified concerns upon reconsideration, the application judge found that this did not automatically entitle her to nomination. The fact that the Program was not satisfied that the appellant was likely to continue to reside in Manitoba was one of the possible, reasonable outcomes in the case. The Court of Appeal found that given the inconsistency in her application and retention concerns, the decision made under the Program to deny her application was within the ambit of possible reasonable outcomes. Consequently, the Court of Appeal found that the application judge was correct in her decision in finding the decision was reasonable.

In Baba, the applicant sought judicial review of a decision of the respondent, asking the Court to quash the decision refusing his application for a provincial nominee certificate as a business applicant under the New Brunswick Provincial Nominee Program.

The applicant argued that the respondent failed in its duty of fairness by relying on the applicant’s source of funds as a criterion for assessing his application. The chambers judge also undertook a review of the duty to give reasons and the reasonableness of the respondent’s decision.

The judge found that while the decision was important to the applicant in pursuing residency, even if the applicant satisfied all the criteria there was no guarantee that he would be issued a nominee certificate. The decision-making process was governed by a clear set of criteria and procedure, including a form stating an applicant’s source of funds was a relevant consideration, which was communicated to the applicant. The judge found that despite being given several opportunities to provide required documentation the applicant failed to do so. The judge rejected the applicant’s argument that the respondent acted unfairly by relying on the applicant’s failure to identify his source of funds as a reason for rejecting his application.

With respect to the duty to give reasons, the judge found the applicant was well aware of the criteria and the process and the deficiency in his supporting documentation. While the notification letter merely stated that the applicant did not meet the eligibility criteria, in the totality of the circumstances, the judge found that the applicant understood the reason for refusal of his application.

The judge also found that the respondent’s discretionary decision to deny the nomination was within the realm of reasonable, possible outcomes. As the core of the Program was the verification of the applicant’s ability to contribute to the economic development of the province, it was reasonable for the respondent to probe and verify the applicant’s financial integrity. Both the amount and source of the applicant’s funds were critical to the respondent’s decision-making process. The applicant failed to satisfy the respondent’s requests for further information, and as a result the respondent was not satisfied as to the applicant’s financial integrity.

In addition, there is now the BC decision of Chaudan from November 2016, which was a judicial review of a decision of a program advisor refusing the petitioner’s application for nomination under the BC PNP. The program advisor found the applicant’s income was below the threshold amount for a single person living in Metropolitan Vancouver. The petitioner requested reconsideration and the program manager upheld the program advisor’s reason for refusal. The petitioner applied to the Court for an order setting aside the program’s advisor decision. The petitioner argued that the program advisor’s decision was unreasonable because it treated the petitioner’s past wages as determinative. The respondent argued that past work experience falls within a range of reasonable and logical considerations in determining whether to grant a nomination. The judge found that while the ultimate criterion of the PNP is forward looking, the factors to be considered by the decision-makers include past and future employment and the program advisor considered both of those factors. The decision was found to be one that could reasonably have been made.

Madam Justice E.A. Arnold-Bailey in Raturi made several statements which will guide and impact future judicial reviews, including that:

  • A decision-maker is not obliged “to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” as long as the reviewing court may understand from the reasons why the decision was made and the reasons permit the court to determine whether its conclusion is within the range of acceptable outcomes.
  • It is not for the courts to provide direction as to the extent of independent labour market research that the BC PNP ought to carry out in a particular case.
  • The BC PNP websites can trump policy manuals.

Complicity in Article 1FA Cases

In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining Article 1F(a) exclusions.

Article 1F(a) of the 1951 Refugee Convention provides that:

The provisions of this Convention shall not apply to any person with respect to whom there  are serious reasons for considering that:

(a)  He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

The issue that Ezokola addressed is how broad Article 1F(a) is.  It if it interpreted too narrowly, then Canada risks creating safe havens for perpetrators of international crimes.  If it is read too broadly, then the humanitarian aims of the 1951 Refugee Convention would be imperilled.

Continue reading “Complicity in Article 1FA Cases”


Section 7 of the Charter and Deportation

Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter“) provides that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

There have been several Supreme Court of Canada (the “Supreme Court“) and Federal Court of Appeal decisions involving s. 7 of the Charter and deportation.

Continue reading “Section 7 of the Charter and Deportation”



Was not Continuously Engaged

The word “continuously” appears in several immigration requirements.  It is not often not defined, and its interpretation has largely been left to immigration officers and the courts.

 

Definitions

Black’s Law Dictionary defines the word “continuously” to mean:

Uninterruptedly; in unbroken sequence; without intermission or cessation; without intervening time; with continuity or continuation.”

The Oxford English Dictionary defines the word “continuously” as being:

“in a continuous manner; uninterruptedly, without a break”.

The Canadian Oxford Dictionary defines “continuous” as meaning “unbroken, uninterrupted.”

Webster’s Third New International Dictionary defines “continuously” as being “in a continuous manner” and “continuous” as “characterized by uninterrupted extension in time or sequence.”

 

Dependent Child Jurisprudence

Much of the jurisprudence on the matter involves the definition of “dependent child” before the Conservative Government of Canada changes in 2014.

Previously, a “dependent child” was defined as:

“dependent child”, in respect of a parent, means a child who

(a) has one of the following relationships with the parent, namely,

(i) 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

(ii) is the adopted child of the parent; and

(b) is in one of the following situations of dependency, namely,

(i) is less than 22 years of age and not a spouse or common-law partner,

(ii) 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, as the case may be, has been a student

(A) continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and

(B) actively pursuing a course of academic, professional or vocational training on a full-time basis, or

(iii) 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.

How this section is interpreted is very fact specific.

In Singh Gill v. Canada (Citizenship and Immigration), 2008 FC 365, the Federal Court of Canada determined that an applicant’s two absences from school, one for four months to care for her ailing grandmother and another for ten days to attend and assist with her sister’s wedding, did not constitute a sufficient period of time to abandon her studies and not meet the definition of “dependent child.” The Federal Court determined that the individual was still continuously enrolled, because:

These leaves or absences from studies… did not, in and of themselves, constitute a sufficient period of time for her to abandon her studies. As [her] school transcripts and certificates attest, she continued with her studies, uninterrupted; neither of the educational institutions… considered that she had either withdrawn or abandoned her studies for any given year.

However, in Shomali v. Canada (Citizenship and Immigration), an applicant’s studies were interrupted during the period of a military service where the individual was afforded an educational leave of absence.  The Federal Court found that this did not meet the requirement of “continuous,” with the deciding factor seeming to be that in one case an individual simply did not attend class to attend an ailing grandmother, while in the other case the educational institution actually granted a leave of absence.