De Facto Family Members

Many people often try to sponsor an adult sibling only to learn that adult siblings (and adult children) are not eligible to be sponsored under the family class. However, in certain cases, such individuals may be eligible for humanitarian & compassionate grounds as de facto family members.

De facto family members are persons who do not meet the definition of a family class member. They are, however, in a situation of dependence that makes them a de facto member of a nuclear family that is either in Canada or applying to immigrate.  In determining whether someone is a de facto family member, immigration officers consider:

  • whether the dependency is bona fide and not created for immigration purposes;
  • the level of dependency;
  • the stability of the relationship;
  • the length of the relationship;
  • the impact of a separation;
  • the financial and emotional needs of the applicant in relation to the family unit;
  • the ability and willingness of the family in Canada to provide support;
  • the applicant’s other alternatives, such as family (spouse, children, parents, siblings, etc.) outside Canada able and willing to provide support;
  • documentary evidence about the relationship; and
  • any other factors that are believed to be relevant to the H&C decision.

So why is this important?

It is important because immigration officers are required to consider both the material and emotional well-being of a de facto family member applicant.

In Karimullah v. Canada, 2010 FC 824, the Applicant  was a 56-year old citizen of Guyana who suffered from schizophrenia. He was the last member of his immediate family living in Guyana.  As a 56-year old, he was not eligible to immigrate under the Family Class. However, he made an H&C claim in Canada on the basis that he was the last remaining family member in Guyana, and that he was dependent on his family for support due to mental illness.  He argued that he was a de facto family member.  In rejecting his claim, the immigration officer found that he was not materially dependent on his family.

Justice Shore found that the officer’s claim did not meet the standards that are required when examining de facto family member applications. He held that officers must be aware of every facet of dependency, including both financial and emotional. He noted that unification of family members is a hallmark of the Canadian immigration system, and that due consideration must be given to this key intention.  He criticized the immigration officer for not considering his mental and emotional health, and the impact that being separated from his family had.

The decision is a welcome one for those wishing to immigrate to Canada who do not meet the requirements of the Family Class. Indeed, I imagine that paragraphs 2-4 of the judgment will be cited in many future applications. These paragraphs read:

[2]               In this case, the officer erred by only narrowly focusing on the material well-being of the Applicant and without demonstrating an understanding of his emotional health. H&C applications are designed to consider all forms of hardship, from the tangible to the intangible. The intangible hardships, such as losing contact with one’s family, which represent deprivation of a significant category, are no less relevant to an H&C than the deprivation stemming from a fatal tragedy; this is especially true in this case given the type of illness the Applicant suffers from as well as the evidence showing the importance of family support.

[3]               It is to be recalled that, just as it is publicly or notoriously recognized that infants without emotional bonds most often stop eating and drinking and eventually die; those who are severely emotionally handicapped often suffer the same fate. Reference is made to the medical evidence on record, coupled with the recognition that the future does look bleak for the Applicant should his remaining parent be unable to extend the emotional bond which is an essential tether to the sustenance of life.

[4]               It is acknowledged by this Court that the financial-medical and practical situation with available guarantees is necessary to ensure that a burden does not fall on the Canadian public. That having been said to be available through the Applicant’s closest of family ties, any impediment appears to dissipate in the Applicant’s favour, if, in fact, that is the case. The matter of guarantees, however, is not for this Court to determine, but is entirely in the bailiwick of the first-instance decision-maker who is the finder of fact, as it is only that decision-maker who is best suited to determine such guarantees.

[Emphasis Added]