Spousal Sponsorship and Social Assistance

Photo by George Vnoucek

Section 133 of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) prohibit a Canadian citizen or permanent resident from sponsoring a foreign family member (generally a spouse, common-law partner, parent or grandparent) if that Canadian is in receipt of social assistance for a reason other than a disability.

The Regulations define social assistance as being any benefit, whether money, goods or services, provided to or on behalf of a person by a province under a program of social assistance. It includes assistance for food, shelter, clothing, fuel, utilities, household supplies, personal requirements and health care not provided by public health care.

Section 133(1)(k) of the Regulations do provide that a person can still sponsor a foreign family member to immigrate to Canada if the sponsor receives the social assistance because of a disability.

Financial Inadmissibility

However, s. 39 of Canada Immigration and Refugee Protection Act provides that 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 a visa officer that adequate arrangements for care and support, other than those that involve social assistance, have been made.

As such, even if a Canadian sponsor is no longer receiving social assistance, or is receiving social assistance because of a disability, they still might be ultimately unable to sponsor their family member to immigrate to Canada.

Minimum Necessary Income

Unlike with the sponsorship of most foreign family members the Regulations provide that there is no minimum necessary income requirement to sponsor a spouse or common-law partner.

However, it is important given s. 39 of the Immigration and Refugee Protection Act that people submitting applications under to sponsor their spouses or common-law partners under either the Family Class or the Spouse or Common-Law Partner in Canada Class ensure that they do not raise any flags regarding a possible financial inadmissibility.

For example, if a Canadian sponsor’s income was below Statistics Canada’s low-income cutoff, then the foreign national should take seriously the question of what their intended occupation will be after they immigrate.   

As well, although it is not typically mandatory in a spousal or common-law partnership application, if the foreign national is the principle breadwinner in the family then they should indicate this in the application, and provide proof of the foreign spouse’s or common-law partner’s earnings.

Examples of Financial Inadmissibility

Elayathamby Rasu v Canada (Citizenship and Immigration) is a good example of how financial inadmissibility can work. There, the Canadian sponsor in the years leading up to the sponsorship of his wife earned around an average of $10,000.00 per year. In her application form, her wife, who spoke neither English or French, stated that she planned on being a housewife after she immigrated.  The visa office refused their application, a decision which the Immigration Appeal Division upheld.

Another impediment for Canadians whose income is well below to Statistics Canada’s low income cutoff for a region is where their foreign family members do not speak English or French and where their credentials may not be recognized in Canada. In Cheung v. Canada (Citizenship and Immigration)a Canadian sponsor tried to argue to the Immigration Appeal Division that his wife, who was a nurse in her country of origin, had transferrable skills. However, the Immigration Appeal Division noted that her lack of English and the fact that it was not clear that she could actually work as a nurse in Canada meant that it was not clear that the family would not need social assistance.

Finally, as the Immigration Appeal Division noted in Phuoc v. Canada (Citizenship and Immigration)it is open to immigration authorities to not consider, or at least give very weight to, evidence of Canadian income which has not been declared to the Canada Revenue Agency.

Other Disqualifications

Other things that can disqualify an otherwise eligible sponsor from sponsoring someone include:

  • The sponsor being subject to a removal order;
  • The sponsor being detained in any penitentiary, jail, reformatory, or prison;
  • The sponsor have previously been convicted of a specified offence (such as a sexual offense);
  • The sponsor being in default of spousal or child support payments;
  • The sponsor being in default of a debt owed under Canada’s Immigration and Refugee Protection Act;
  • The sponsor being an undischarged bankrupt;
  • The sponsor being in receipt of social assistance other than for reasons of a disability; and
  • The sponsor being in default of a of a previous sponsorship undertaking.

Humanitarian & Compassionate

A family that might not be able to reunify in Canada, either because the Canadian receives social assistance or because there is a probability that they will be found to be financially inadmissible to Canada, should not give up.

As with all immigration applications, it is possible that there could be sufficient humanitarian & compassionate factors to supersede the inadmissibility.


Disabled Adults and the Best Interests of the Child Analysis

“Every child is a dependent but not every dependent is a child”.

Individuals who apply for Canadian permanent residency can request that visa officers consider humanitarian & compassionate factors to exempt them from general immigration requirements.  Such factors can include the best interests of children. Pursuant to Canada’s Federal Court of Appeal in Hawthorne v. Canada (Minister of Citizenship and Immigration), the best interests of the child in a humanitarian & compassionate consideration context involves, for example, an assessment of the benefits a child would receive if a parent was not removed from Canada, in conjunction with an assessment of the difficulties the child would face if the parent was removed and the child remained in Canada, or if the child was to return to the parent’s country of origin with the parent.

Previously, the issue of whether the best interests of a child extended to adult dependents was unclear.  Some decisions stated that the determining factor was whether an adult child was dependent on his or her parents.  In Naredo v. Canada (Minister of Citizenship and Immigration), a 20-year old was determined to be a child under Canada’s Immigration and Refugee Protection Act (“IRPA“) because he was dependent on his parents. In Ramsawak v. Canada (Minister of Citizenship and Immigration),meanwhile, the Federal Court explicitly stated that the “mere fact a ‘child’ is over 18 should not automatically relieve an officer from considering his or her ‘best interests'”, and that the dependency of the individual on his/her parents is what matters.

However, in Saporsantos Leobrera v. Canada (Citizenship and Immigration) (“Saporsantos“) Justice Shore systemically and thoroughly criticized the principle that dependency determines whether one is a child.  Justice Shore’s decision has generally become the leading case on this topic, and it is now generally understood that adult dependents are not entitled to a best interests of the child consideration.

An Overview of the Decision

The applicant in Saporsantos argued that the definition of “dependent child” in section 2 of the Immigration and Refugee Protection Regulations (the “Regulations“) determined whether a person was entitled to a best interests of the child analysis.  Section 2 of the Regulations then defined “Dependent Child” as follows (emphasis added):

“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.

Justice Shore, however, noted that section 2 of the Regulations began with the statement that:

2. The definitions in this section apply in these Regulations.

He accordingly concluded that the IRPA and its Regulations are two different pieces of legislation and that the definition of “dependent child” in the Regulations did not determine what a child for H&C consideration in IRPA.

After concluding that s. 2 of the Regulations did not determine the issue, Justice Shore noted that the using the definition of “dependent child” to interpret the meaning of  “child” is contrary to the presumption of consistent expression. The presumption of consistent expression states that:

It is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings. Another way of understanding this presumption is to say that the legislature is presumed to avoid stylistic variation.  Once a particular way of expressing a meaning has been adopted, it makes sense to infer that where a different form of expression is used, a different meaning is intended.

Justice Shore concluded that the appropriate reference to determine the meaning of “child” was not IRPA’s Regulations, but rather the United Nations Convention on the Rights of the Child (the “Convention).  The Court noted that while the Convention has not been enacted into Canadian law, the jurisprudence is clear that IRPA must be interpreted in accordance with international treaties, that the values reflected in such treaties may help inform Canadian statutory interpretation, and that the importance of the Convention has been specifically stressed in Canadian immigration jurisprudence.

The Convention defines a child as:

Article 1

For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Accordingly, Justice Shore determined that adult dependents are not entitled to best interests of the child consideration, a principle which has since been upheld in numerous Federal Court of Canada and Immigration and Refugee Board decisions.

Implications

As such, practitioners should note that disabled adult clients are not entitled to a best interests of the child analysis for H&C purposes.

 

Nonetheless, common sense indicates that the impact that a guardian’s separation would have on a disabled adult would still be a significant factor in determining whether there are sufficient H&C grounds to qualify for an H&C exemption.  Accordingly, while a tougher test applies, applicants should continue to stress what the interests of their adult dependent children are.