In this section, family class sponsorship will be discussed. There are two kinds of sponsorship:
1.sponsorship of a spouse and/or dependent unmarried and under the age of 19, and
2.sponsorship of fiance and/or other family members .
Spousal applications: Spouses of Canadian citizens or permanent residents must apply outside Canada and obtain an Immigration Visa before entering Canada. Spousal applications are given top priority by visa officers and are often processed very quickly. In some cases, spouses who are already in Canada can apply for landing from within Canada.
An application will be processed within Canada if: 1) the person being sponsored is married to a Canadian citizen or permanent resident, 2) the person being sponsored and spouse are both living in Canada, and 3) the spouse of the person being sponsored has submitted an Undertaking in support of this person's application.
An application will be refused if: 1) the person being sponsored married in order to become a permanent resident of Canada, 2) the spouse of the person being sponsored withdraws the sponsorship, such as often happens when there is a divorce or separation, 3) the spouse is unable to support the person being sponsored and the person being sponsored is unable or unwilling to support their self except by resorting to welfare, or 4) the person being sponsored or any dependent child of the applicant has a serious medical problem, has been convicted of a crime or is a security threat to Canada. Note that the person being sponsored and their dependents must have a valid passport or travel documents.
A sponsor can sponsor a spouse if: 1) the sponsor is a Canadian citizen or permanent resident, 2) the sponsor is at least 19 years old when the Undertaking is submitted, 3) the sponsor is living in Canada, and 4) the sponsor did not default on any previous Undertaking, but not properly caring or looking after the person(s) previously sponsored.
The Process: To commence a sponsorship process, the sponsor would complete the Undertaking and Financial Evaluation. Once this is approved, an application would be completed by the person(s) being sponsored and submitted to an overseas visa post for processing if the person(s) being sponsored live abroad. If the person(s) being sponsored are in Canada, then they must maintain valid visitor status during the processing of their application. The person(s) are entitled to work and/or study if they can obtain a valid employment authorization and/or valid student authorization.
Co-sponsorship: Co-sponsorship is permitted when a person who is eligible to sponsor a relative is unable to meet the financial requirements of sponsorship. In such a case, a co-sponsor, that is "a person who is also entitled to sponsor the same Family Class relative in his or her own right", may be useful. For example a wife who wishes to sponsor her mother but who is unable to financially comply alone, may with her husband, together become co- sponsors of the mother.
Family Class: A sponsor may sponsor members of the Family Class, these being: 1) husband or wife, 2) fiance, 3) dependent children, 4) brothers and sisters, nephews and nieces, grandchildren, who are orphans and under the age of 19 years old and unmarried, 5) a child under 19 that the sponsor plans to adopt, and 6) other relatives (for this category, advice should be sought from a lawyer as this category is more complex.
Marriage sponsorships are often seen as simple. In many cases, a person will marry someone overseas and shortly thereafter apply to sponsor that spouse to come to Canada. Unfortunately, despite being legally married and having a marriage certificate to prove it, the overseas visa post is allowed to reject the sponsorship application on the grounds that the marriage is not 'real' or 'genuine', that is, that the visa-officer believes that the marriage is one of convenience in order to improperly facilitate a person's entry into Canada. Although the visa- officer may be right in many cases, there are many cases where the method of presenting the application to the visa-officer misleads the visa-officer to doubt the validity of the marriage. For example, at an interview one spouse may embellish some aspect of the relationship or a add some falsehoods, in the belief that it would help the application, not aware that these embellishments and falsehoods were not needed but having been added, lead to failure of the application. The visa-officer will often look at the credibility of the spouses, and also look for inconsistencies between what one spouse states and what the other states. It is often better to just be honest and forthright in presentation at the interview. Too much creativity is often the undoing of what is otherwise a genuine marriage. Oversimplified explanation of events or marital matters may also lead to a rejection by the visa- officer. Proper explanation of peculiar aspects of the marriage is very important to avoid the visa-officer rejecting the sponsorship application. The adage that 'honesty is best' is very applicable in these cases.
Sponsorship applications are very common, but many do not succeed due to poor preparation and presentation of the application to immigration. Although many cases are easy, many more are complex. It is these latter ones that really require skill and expertise in preparation to ensure that the application is successful. Receiving proper and honest legal advice from a lawyer is critically important to avoid losing the opportunity to sponsor someone to
come to Canada.
In this section, I will focus on spousal sponsorship, and on some of the common problems encountered by one sponsoring an overseas spouse.
I have heard of many cases where one returns to their home country after migrating to Canada, in order to marry. After meeting and knowing someone for a few weeks to a month, they marry and upon return to Canada, a sponsorship application is made. Very often, the application fails. The question: "WHY?". "We have a legal document stating that we are married" is often the words I hear. While this may be so, Canadian immigration requires much more. The marriage must be shown to be more than a marriage of convenience for the mere purpose of immigration to Canada by the overseas spouse. What does this mean? First, questions are asked to determine how long the two persons know each other before marriage, what proof of correspondence they have, and what kind of marriage ceremony they had. While "love-at-first-sight" is sometimes true, for Canadian immigration, it is usually unacceptable. And while, in Canada, couples sometimes keep the marriage ceremony very simple, often no more than a mere city hall ceremony, with perhaps one witness on each side, -- for Canadian immigration, it may not be acceptable for someone going overseas to marry this way. Why? The presumption is that a real marriage, for more than the purpose of immigration to Canada, would involve expenditure of money, as well as more than a simple paper ceremony. While this is true for the traditional view of marriage, and while in modern times, it is not uncommon for there to be a simple paper ceremony, -- different perceptions and rules seem to apply when it comes to sponsorship.
It should also be noted that in most cases, both spouses need to undergo an interview -- each on their own -- where very intimate questions can be asked by the immigration officer -- all with the purpose of testing whether the two persons really "know" each other, as is expected of two persons who decide to marry. What "know" means, is open for debate, -- especially since when two Canadians marry, often they really do not "know" each other. At the very least, if you plan to marry someone overseas, "whirlwind affairs" should be handled carefully. One can easily conclude from this that the standards for those sponsoring a spouse through marriage are higher than that of two Canadians who marry. Immigration's response -- it is necessary due to the high number of false marriages for the pure purpose of immigration to Canada.
One last problem encountered is the fact that the process can take a long time. Immigration states that the sponsor of a spouse is given priority, but the process can still take six months to a year. Further delays can occur when the forms are not correctly completed, or improperly filed or instructions from immigration not complied with fully.
One should also be careful when the spouse is successfully sponsored and then divorce proceedings are attempted. This is often seen in cases where the marriage was just for the purpose of immigration. Ontario divorce law requires that in a non-contested divorce that at least one of the parties to the proceedings be resident in Ontario for at least one year prior the commencement of the proceedings. More importantly, the couple must have been legally separated for at least one year in order to receive a divorce.
As an example of the implications, I have seen several couples come in to my office, ask for a divorce. I would ask when did they marry and they would respond they were married overseas four months ago. The wife just received her landed papers last week. Now they want a divorce. False marriage?? Possibly. Divorce possible? Not yet. If divorce did occur so quickly, however, there may be a future problem with the newly landed spouse's status.
Sponsorship applications are very common, but many do not succeed due to poor preparation and presentation of the application to immigration. Although many cases are easy, many more are complex. It is these latter ones that really require skill and expertise in preparation to ensure that the application is successful. Receiving proper and honest legal advice from a lawyer is critically important to avoid losing the opportunity to sponsor someone to come to Canada.
In this section we look at further issues in sponsorship.
Revisiting Sponsorship:
In previous sections I dealt at length with sponsorship of fiances, spouses, and parents and children, the more common sponsorships done. In this article I will deal with a few common pitfalls encountered in sponsorship applications. As it may be recalled, the process involves two steps: 1. consideration of the sponsor's eligibility to sponsor someone; and 2. consideration of the sponsored person's eligibility to be sponsored.
With respect to required income, it is the gross income of the sponsor and the sponsor's spouse (only if the spouse is a permanent resident or citizen of Canada). However, expenses are to be deducted in determining the LICO (Low Income Cut-Off) required for immigration purposes. Often the sponsor forgets to take into account certain of their living expenses and this leads to failure, sometimes for the lack of $200.00 below the required LICO amount. For self-employed sponsors, the net taxable income is used for calculating LICO. Again living expenses (such as rent or mortgage expenses of non-principal residence, or insurance expenses) must be deducted from the income amount and the final amount must still be above the required LICO. It should be kept in mind that immigration sometimes asks for LICO compliance not just at the start of an application, but also before final approval; if the sponsor's income has dropped during the processing of the sponsorship, they could face rejection should new financials be required and they show non-compliance with the required LICO.
With respect to fiance sponsorship, many do not understand that if the fiance arrives in Canada and then does not marry, the fiance must leave or face deportation. In a few rare cases, it may be possible to argue humanitarian reasons for allowing the fiance to stay even without marrying as promised. It should be kept in mind that when sponsoring a fiance, LICO is relevant.
With respect to sponsorship of a spouse, LICO is not relevant according to the Immigration Act and Immigration Regulations. However, if the sponsor is on public assistance and/or has no form of savings and/or income, immigration may conclude that the person being sponsored will end up on welfare and/or other public assistance; in such cases, the officer is likely to reject the sponsorship application.
With respect to sponsorship of a parent or both parents, LICO is relevant. In addition, while all persons being sponsored must pass a medical, it becomes even more important a consideration for parents. Often the parent is in their late-60's or older and face one or more medical conditions. Usually the conditions are not seen as serious but in some cases it could lead to medical inadmissibility. In such cases, appeal is often the only recourse.
With respect to multiple sponsorships, often the sponsor forgets to include all prior persons he has sponsored, and still has an undertaking in effect, or is in the process of sponsoring. For calculation of LICO this is crucial for a successful outcome.
With respect to sponsorship in general, it must be remembered that the sponsor must sign a bond guaranteeing support for 10 years. Should anything go wrong in the relationship, and this is very important in respect to finance and spousal sponsorships, then the sponsor is on the hook (and the government will chase the sponsor) for any public assistance received by the person sponsored for the 10 year term of the sponsorship. Often the sponsor believes that they can be relieved of the obligation in the case of breakdown in relationship; this is not correct. Regardless of the reason of breakdown of relationship, the sponsor is only rarely relieved of the 10 year obligation.
With respect to sponsorship of others not listed above, only a fiance, spouse, parent or child below the age of 19 can be sponsored. In some cases, if the sponsor has no one else in Canada, they may be eligible to sponsor someone not in these above-mentioned categories. This category is misnamed the "last remaining relative" category in immigration literature but is misleading since it does not involve the last remaining relative abroad. However, LICO compliance will still be required. In the cases of adoption, compliance with family law may also be required in addition to the normal compliance with requirements as set out in the Immigration Act and Immigration Regulations.
Final Note:
Immigration authorities have become stricter in applying the sponsorship rules and regulations. As always, the prospective immigrant and/or his sponsor, should seek proper and honest legal advice in order that the prospective immigrant does not lose the opportunity to come to Canada.
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