Canadian Immigration: Examining and declaring family members

Author: Al Parsai LL.M. RCIC-IRB

Last updated on: August 24, 2024

Isabelle, 46, is a French woman who immigrated to Canada 7 years ago via Express Entry. She was going through a bitter divorce when she immigrated. In consequence, her ex-husband refused to let her bring her five-year-old child. She never declared her son when she immigrated. With her ex-husband’s recent passing, Isabelle desperately wants to sponsor her son. However, the future seems uncertain because declaring family during immigration is vital. This omission can have serious consequences. Canadians are also a part of this. immigration law might now consider her son ineligible for sponsorship, complicating her heartfelt wish.

Who Is a Family Member When You Immigrate to Canada?

Before discussing “declaring family members,” let’s explore who a family member is. According to sections 1(3) and 2 of the Immigration and Refugee Protection Regulations (IRPR), a “family member” in Canadian immigration includes the following:

• Spouse:
  • A spouse is the person you are legally married to.
  • The marriage must be legally recognized in both the country where it took place and in Canada.
• Common-Law Partner:
  • A common-law partner is someone you have lived with in a conjugal relationship for at least one year.
  • The relationship must be continuous, without significant interruptions, except for temporary separations.
• Dependent Child:
  • A dependent child can be your biological or adopted child. It can also be the child of your spouse or common-law partner.
  • The child must be under 22 years old and not in a marital or common-law relationship.
  • If the child is 22 years or older, they can still be dependent. However, they must have depended on you financially before turning 22 due to a physical or mental condition that prevents them from being self-supporting.
• Dependent Child of a Dependent Child:
  • This refers to the child of your dependent child. In other words, your grandchild.
  • The grandchild must meet the same criteria as dependent children regarding age and marital status.

These definitions apply broadly across Canadian immigration processes. However, family members’ qualifications are different for sponsorship applications. I do not discuss them here to avoid confusion.

Declaring and Examining a Family Member for Immigration Purposes

Understanding the terms “declaring a family member” and “examination of a family member” is crucial in Canadian immigration.

Declaring a Family Member

Declaring a family member means officially listing them on your immigration application. You must include all eligible family members, such as your spouse, common-law partner, and dependent children. However, it’s important to declare both accompanying and non-accompanying family members. Failing to declare any family member could lead to severe consequences, including the inability to sponsor them later. Therefore, always provide complete and accurate information about your family members.

Examination of a Family Member

Examining a family member refers to the mandatory assessment process by immigration authorities. This process includes medical, security, and background checks. Furthermore, the examination determines whether your family member is admissible to Canada. However, if a family member is not examined during your application process, they might become ineligible for future sponsorship. Therefore, it is vital to ensure that all family members undergo the examination process, whether they are accompanying you or not.

How a Family Member Can Affect Your Permanent Residence Application

When applying for permanent residence in Canada, the role of your family members is crucial. An inadmissible family member could make you inadmissible in Canada. Moreover, Failure to declare and examine them properly could lead to serious complications, including making you inadmissible because of misrepresentation.

How a Family Member Can Make You Inadmissible

Under section 42 of the Immigration Act (IRPA), a family member’s inadmissibility can impact your application for permanent residence. Here’s how:

• Accompanying Family Members:
  • If a family member accompanying you to Canada is inadmissible, it can make you inadmissible, too.
  • For example, if your spouse has a medical condition that poses an excessive demand on Canada’s health services, this could affect your application.
• Non-Accompanying Family Members (R23):

Why Declaring and Examining Family Members is Crucial

Declaring and examining your family members isn’t just about following rules—it’s about protecting your future in Canada.

• Avoiding Inadmissibility:
  • Not being truthful could result in inadmissibility because of misrepresentation.
  • By declaring all family members, you ensure that immigration officials can assess their admissibility.
  • The examination includes health, security, and background checks to confirm they meet Canada’s standards.
• Securing Future Sponsorship:
  • If you don’t declare and examine a family member now, you might lose the chance to sponsor them later.
  • This could mean that your spouse, child, or grandchild might never be able to join you in Canada.

In short, declaring and examining family members are critical steps in your immigration journey. Following these steps protects your application and your family’s future in Canada.

Understanding the Exclusion Under R117(9)(d)

When sponsoring a family member for immigration to Canada, it’s crucial to understand the implications of R117(9)(d). This regulation states that if you previously applied for permanent residence and did not declare or examine a non-accompanying family member, you cannot sponsor them later. However, there is an important exception under R117(10).

The Exception: R117(10)

R117(10) offers an important exception to R117(9)(d). If an immigration officer decided that a family member did not need to be examined when you applied for permanent residence, the R117(9)(d) rule does not apply. For example, if the officer determined that an examination wasn’t necessary due to specific circumstances, you might still sponsor that family member. Therefore, R117(9)(d) does not prevent their sponsorship if your family member was not examined because of such a determination.

In extraordinary cases, you may feel your situation deserves special consideration. Therefore, it’s essential to communicate directly with an immigration officer. Clearly explain the circumstances that led to your family member not being examined. Ask the officer to consider an exception under R117(10).

Furthermore, you should provide supporting documentation explaining why the examination wasn’t required or should be reconsidered. This proactive approach could help ensure your family member remains eligible for sponsorship despite earlier non-examination. Since these matters are difficult to handle, consider hiring a professional or booking a consultation session.

The Case of de Guzman v. Canada: A Federal Court of Appeal Decision

In de Guzman v. Canada ((F.C.A.), 2005 FCA 436 (CanLII), [2006] 3 FCR 655), the court examined a crucial issue regarding the non-declaration of family members. Isabelle de Guzman immigrated to Canada without declaring her two sons. She later sought to sponsor them, but immigration officials refused the application based on R117(9)(d). The refusal was due to her failure to declare and examine her sons during her initial immigration application.

Isabelle challenged this decision through a judicial review application. She argued that R117(9)(d) unfairly prevented her from reuniting with her sons. However, the Federal Court dismissed her application. Moreover, the Federal Court of Appeal (FCA) later upheld the Federal Court decision. The court emphasized that full disclosure during the immigration process is vital for the system’s integrity. Here is paragraph 33 of that decision.

[33] The importance to the administration of the statutory scheme of full disclosure is illustrated by the fact that a foreign national is inadmissible to Canada if an accompanying or, in some circumstances, a non-accompanying family member is inadmissible: IRPA, section 42. A similar provision was in effect when Ms. de Guzman applied for a visa: Immigration Regulations, 1978, paragraph 9(1)(a).

This ruling shows why R117(9)(d) makes sense from the FCA’s perspective. The regulation reinforces the importance of transparency in the immigration process. Moreover, it ensures that all family members undergo necessary examinations to maintain the integrity of the Canadian immigration system. Therefore, the court’s response highlights the critical need for declaring and examining family members during immigration.

Note to practitioners: This case is a 2005 decision by FCA. However, it remains relevant even in 2024. For example, see, Nalzaro v. Canada (Citizenship and Immigration), 2024 FC 1166 (CanLII), https://canlii.ca/t/k62td.

If you don’t declare or examine your family members during your immigration process, the consequences can be severe. The simple answer is that you cannot sponsor them later. R117(9)(d) specifically prevents sponsorship of undeclared family members. However, there may still be a way to bring them to Canada.

In certain cases, you can request approval on humanitarian and compassionate grounds. This process is complex and requires careful navigation. Moreover, despite the earlier omission, it presents compelling reasons for your family member’s consideration.

Therefore, if you find yourself in this situation, exploring your options with professional guidance is crucial. Booking a consultation session with me can help you understand your options. We will carefully evaluate your situation and determine the best course of action. While the process is challenging, it may provide a pathway to reunite with your loved ones in Canada. Alternatively, please fill out the following form to contact our team.

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