Spousal Sponsorship and Social Assistance

26th Jun 2010 Comments Off on Spousal Sponsorship and Social Assistance

Last updated on April 28th, 2020

Section 133 of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) prohibits a Canadian citizen or permanent resident from sponsoring a foreign family member (generally a spouse, common-law partner, parent or grandparent) if the 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.

Pursuant to the internal Immigration Refugees and Citizenship Canada (“IRCC“) e-mail below,  it is important to note that IRCC does not consider subsidized housing to be social assistance.

Section 133(1)(k) of the Regulations explicitly provides 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.

Previous Receipt of Social Assistance

Depending on the circumstances, the previous receipt of social assistance can render a sponsor ineligible.  Section 133(1)(b) of the Regulations provides that a sponsor must intend to fulfil the obligations in the sponsorship undertaking.  In Alriyati v. Canada (Immigration, Refugees and Citizenship), 2020 FC 496, Justice Pentney determined that it was reasonable for a visa officer to determine that because someone had been on social assistance for a lengthy period, and only stopped receiving social assistance shortly before submitting a spousal sponsorship application, that the person did not have an intention to fulfil the obligations in the sponsorship undertaking.  Justice Pentney noted:

There is no jurisprudence of this Court on the interpretation of intention under paragraph 133(1)(b).

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Disabled Adults and the Best Interests of the Child Analysis

4th Jun 2010 Comments Off on 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. 

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