CIMM Committee Report

    Currently, family class sponsorship undertakings last for a period of 10 years. The proposed regulations create various time periods:

• for spouses: three years;

• for dependent children who arrived before they were 12 years of age: until age 22;

• for dependent children who arrived at 12 years of age or more: 10 years; and

• for all other cases: 10 years.

    Some witnesses argued that there should be no family class undertakings at all. They felt that such undertakings are not necessary because all provinces and territories have laws regarding family support obligations. However, if there are to be undertakings, it was argued that the maximum period for all sponsored relatives should be three years.

    Advocates for women pointed out that the existence of an undertaking could be used as a tool against vulnerable women, who are sometimes led to believe that they must continue to endure difficult domestic situations. In essence, undertakings may be seen as implying a dependency relationship. Others pointed out that an immigrant family who arrived with a baby would be required to be financially responsible for 21 years, even if the child required social assistance because of a disability.

    The Committee is unable to agree with those witnesses who argued that sponsorship undertakings should be eliminated. Although we welcome the Department’s proposal to reduce the length of undertakings for spouses and common-law partners from 10 years to 3, we feel that the proposal for dependent children is overly complex and potentially unfair. We have concluded that an undertaking should not extend past the age of 18, with an exception for dependent children who are 19 and over at the time of their arrival in Canada. In those situations, the undertaking should last for three years.

1. Social Assistance

    Committee witnesses raised two financial preconditions to family sponsorships in the proposed regulations that caused them concern. The first was that the receipt of social assistance, for any reason other than disability, is a complete bar to sponsoring any family member. The reason for this is clear: fairness to Canadian taxpayers.

    Witnesses pointed out to the Committee, however, that in at least some cases, Canadian taxpayers could be helped by such sponsorships.The immigration of a spouse, common-law partner, or even the parents of a single parent on social assistance, could be the means to a better life if the immigrant was likely to find work or could provide childcare. For that reason, the Committee finds that the receipt of social assistance as an absolute bar to sponsorship could be counterproductive and needs rethinking. We therefore recommend that in appropriate cases family members be allowed to come forward. We recognize that this can be accomplished using humanitarian and compassionate grounds, but would prefer to see it spelled out in the regulations.

    We emphasize that evidence that the arrival of the family member would assist the family unit to become self-sufficient should be cogent and tangible. For example, a spouse or common-law partner might produce evidence of a job offer. A parent might commit in writing to provide childcare services, or parents could provide evidence of assets sufficient to allow the reunited family unit to live independently.

    The sponsorship of dependent children by single parents receiving social assistance raises a different issue. Clearly, the arrival of a dependent child will not allow the sponsor to achieve self-sufficiency. We believe, however, that the principle of family reunification in these cases is more important than monetary considerations. We conclude, therefore, that single parents should be able to sponsor dependent children even if receiving social assistance.

RECOMMENDATION 29

Sponsorship of a member of the family class by a sponsor on social assistance should be permitted where there is cogent and tangible evidence that the arrival of the family member is highly likely to enable the household to be self-supporting.

RECOMMENDATION 30

Receipt of social assistance should not bar single parents from sponsoring dependent children.

2. Minimum Income

    The second financial precondition to sponsorship that concerned witnesses was a change to the minimum income required to sponsor a person other than a spouse, common-law partner, or a dependent child. The current regulations require an annual income equal to Statistics Canada’s low income cut-off figure (LICO) for an area the size of the sponsor’s place of residence. The proposed regulations would use the figure for urban areas of 500,000 people or more, regardless of where the sponsor lives. The difference is significant. For example, the LICO for a family of four in a rural area is $22,639; the LICO for that same family of four in an urban area of over 500,000 people is $32,759. There is little doubt that the change will impact the ability of some individuals to sponsor parents.

    The Committee accepts the reasoning of one of its witnesses that the proposed increase in the minimum income necessary to sponsor is likely to have a greater impact on women than men because of the fact that, generally speaking, women earn less than men. Moreover, even though the rule does not apply to spouses, common-law partners and dependent children, parents are an important part of the family class. For these reasons, we are reluctant to impose additional sponsorship burdens and recommend that the current rule be continued.

    Currently, fiancé(e)s may be sponsored as part of the family class, with the condition that they marry within 90 days. If a visa officer rejects a fiancé(e), the sponsor may appeal to the Appeal Division of the Immigration and Refugee Board.

    The regulations propose to eliminate the relationship of fiancé(e) from the family class and process these applications under the humanitarian and compassionate provisions. This would be the approach for intended common-law partners as well. Appeal rights would thus be lost; the only recourse for refused applicants would be an application for leave for judicial review in the Federal Court. The provision in section 38 of the Immigration and Refugee Protection Act that exempts members of the family class from inadmissibility on the grounds that they might reasonably be expected to cause excessive demand on health or social services would also not apply.

    The Committee sees no basis for this change. Fiancé(e)s have been members of the family class for years, and we are aware of no reason why they should be deprived of the rights enjoyed by other members of the family class. We recommend that the existing rules be retained, and applied to intended common-law partners.

    For the first time, the regulations will contain a definition of "common-law partner": "an individual who is cohabiting with [a] person in a conjugal relationship, having so cohabited for a period of at least one year." This definition is followed by a provision stating that if a conjugal relationship has lasted for at least one year, but cohabitation was impossible because of persecution or any form of penal control, the individual may still be considered a common-law partner.

    Committee witnesses had a number of criticisms of the above definition. These are:

• "Persecution" and "penal control" as reasons for not fulfilling the cohabitation requirement are far too narrow;

• The one-year cohabitation requirement could be interpreted too literally;

• The cohabitation requirement should be dropped, or used as one factor among many to establish the bona fides of the relationship;

• Same-sex couples formally united under the laws of other jurisdictions should be recognized by our law as well; and

• There is no explicit reference to the fact that a common-law partner may be of the same or the opposite sex.

    The Committee is sensitive to the above concerns, particularly the factor relating to "persecution" and "penal control" as reasons for non-cohabitation. Reference to the existence of persecution, or potential persecution, should a same-sex couple cohabit in another country means, in essence, that Canada would consider them refugees. This is an unnecessarily stringent test. For a couple to establish an environment of significant discrimination, which could take place in the workplace, the family, or in social relations, as a reason for not cohabiting should be sufficient, provided the immigration officer is satisfied that the relationship is genuine. Similarly, the threat of actual punishment for cohabiting is far too stringent.

RECOMMENDATION 33

The allowable reasons for excusing common-law partners from cohabiting should be expanded beyond "persecution" and "penal control." Proof of discrimination should be sufficient.

    Even with that change there will still be significant difficulties with the one-year cohabitation rule. Some witnesses were concerned that it would be interpreted literally, resulting in a failure to recognize the nature of modern life. All couples are separated from time to time by business, family or other commitments; couples wishing to reunite in Canada may be separated by immigration rules alone. One witness stated that the majority of same-sex partners are unable to cohabit.

    The Committee agrees with those witnesses who said that, in an immigration context, the primary test for a common-law partnership should be whether or not the conjugal relationship is bona fide and has continued for at least a year. A mandatory cohabitation requirement is bound to produce unfair results in some circumstances and we have concluded that cohabitation should be only one element among others that serve to prove the genuineness of the relationship.

RECOMMENDATION 34

Officers assessing applications from common-law partners should take a flexible approach when assessing the length of time the individuals have cohabited. Cohabitation should be only one factor in determining the genuineness of a common-law relationship and the definition of "common-law partner" in clause 1 should be changed accordingly.

    One further point about the definition of "common-law partner" is noteworthy. The definition does not explicitly state that a partnership can be of the opposite sex or the same sex, although that is clearly the intention. We agree with the witnesses who argued that the definition should reflect the true meaning of the term.

    Currently, individuals may sponsor family members even if the sponsor is out of the country, provided the sponsor intends to return to Canada at the time the family members receive a visa. Clause 130(1)(b) seems to reverse that rule by requiring sponsors to be habitually present in Canada. One witness raised this issue and noted that it would be unfair to sponsors outside the country who intend to return to Canada.

    Clause 2 of the proposed regulations contains a definition of "dependent child" that includes a reference to a "biological child," to distinguish those children from adopted children. The current regulations use the word "issue" for that purpose.

    One witness was opposed to the change, maintaining that "issue" could be more broadly interpreted than "biological child" so as to include a de facto child of the family. The witness pointed to a case now being litigated that is likely to settle this question. The Committee sees no reason to change the terminology from "issue" to "biological child." "Biological child" may suggest to officers assessing applications that a more stringent level of proof is now demanded; it may lead to routine requests for DNA testing, which is both expensive and time-consuming.

    The Committee is sympathetic to the situation of children who are, in fact, part of a family, even if they are not the actual children of either of the parents. Departmental officials have the tools at hand to permit a de facto member of the family to immigrate with the family. The Immigration Manual discusses de facto family members as a category to be considered for landing on humanitarian and compassionate grounds. If the dependency is bona fide, stable and long lasting a positive decision should be warranted. The Committee urges the Department to continue this approach to humanitarian and compassionate landings.

    Two witnesses raised issues relating to definitions of family in the regulations. Clause 1 defines the term "family member" to mean a spouse or common-law partner and dependent children. In contrast, the "family class" includes the foregoing, as well as parents, grandparents and others. The implication is that individuals coming to Canada as immigrants are permitted to bring with them their "family members," that is, the nuclear family. Other family may be sponsored later.

    One witness questioned this in the case of refugees. The regulations will now provide a legal basis for the current administrative practice of allowing the family of protected persons selected abroad to have their non-accompanying family members processed as part of their application for one year, without the need for a sponsorship. However, as noted, family means nuclear family, and it was pointed out that parents, for example, might be dependent on the relative in Canada. The Committee recommends that the government consider extending concurrent processing of a selected refugee’s family to include those in a dependent relationship.

    The Family Business Job Offer Program is an administrative program that allows family businesses to bring a family member to Canada to work in the business in a position of trust. The job offer is currently treated as if it had been validated by Human Resources Development Canada and is awarded 10 points.

    The government proposes to eliminate the Program on the grounds that it is resource intensive and that the adaptability criterion of the proposed selection system awards points both for an offer of employment, without the requirement of trust, and a family relationship in Canada. Several witnesses opposed ending this Program. One noted that it was a valuable way to promote family reunification while supporting small business.

    The Committee agrees with those witnesses who recommend retaining the Program. Although it may be resource intensive, the numbers landed are small, and the needs filled in the business are likely to be significant. A small family business is unlikely to be able to attract any employee as dedicated and hardworking as a family member, particularly one new to the country who wants to make good.

    We also note that earlier we recommended the elimination of points for an informal job offer under the adaptability factor in the selection criteria. If the Department agrees with the Committee that that factor is open to fraud, then one of the reasons for eliminating the Family Business Job Offer Program disappears as well. In addition to continuing the Program, we also recommend that it be put on a firmer footing by including it in the regulations.