Immigration applications are full of questions that may appear simple. But sometimes, answering one question incorrectly can have consequences years later. One of the most serious examples involves failing to declare a spouse, common-law partner or dependent child when applying for permanent residence in Canada. At YA Law Corporation, we meet clients who did not deliberately hide a family member. In some cases, they misunderstood the law. In others, they assumed that because a spouse, partner or child was not accompanying them to Canada, that person did not have to be included in the application. Unfortunately, what begins as a misunderstanding can later become a significant immigration problem.
A Real-Life Example: What Does “Common-Law” Mean?
Recently, we met a client whose circumstances illustrate how easily this problem can arise. When her partner applied for Canadian permanent residence and he did not declare her as a common-law partner even though they had already been living together in a conjugal relationship for more than one year. But, they believed they were not yet common-law partners.
Why?
They had looked at the rules applicable under British Columbia family law. Under section 3 of British Columbia’s Family Law Act, a person is generally considered a spouse if the person has lived with another person in a marriage-like relationship for a continuous period of at least two years. There is also an important exception for certain purposes where the couple has a child together. They therefore assumed that until they had lived together for two years, they did not need to identify themselves as common-law partners. That assumption created a serious immigration problem. Immigration Law Uses a Different Definition. Canadian immigration law is federal law. For immigration purposes, the applicable definition is found in the Immigration and Refugee Protection Regulations (IRPR). Section 1(1) of the IRPR defines a common-law partner as a person who is cohabiting with another person in a conjugal relationship and has done so for a period of at least one year. While under BC Family Law Act, couple are considered in common law relationship if they are 2 years in a marriage-like relationship.
A person should not use the two-year definition under the BC Family Law Act to determine whether a partner must be declared in a Canadian immigration application.
What Happened in This Case?
By the time the partner applied for permanent residence, the couple had already lived together for more than one year. Under Canadian immigration law, therefore, they were already common-law partners. But the applicant did not declare his partner as his common-law partner because they mistakenly believed that the two-year rule applied. Later, after they had lived together for more than two years, her partner attempted to sponsor his partner through family-class sponsorship. The application proceeded. The sponsored partner completed steps including biometrics and her immigration medical examination. Eventually, however, they received a letter raising the much more serious problem: she had already been the sponsor’s common-law partner when he applied for permanent residence, but she had not been declared and examined as his family member. The issue was no longer whether they had a genuine common-law relationship. The issue was that she potentially fell within the excluded-family-member rule in paragraph 117(9)(d) of the IRPR.
The undeclared Family Member Rule:
Paragraph 117(9)(d) of the IRPR can have severe consequences. In general terms, where a person applied for permanent residence, became a permanent resident, and a person who was then a non-accompanying family member was not examined as required, that family member may later be excluded from the family class.
IRPR also defines “family member” to include a person’s:
- spouse or common-law partner;
- dependent child;
- dependent child of their dependent child.
IRCC expressly tells applicants that they must declare family members even when those family members are not accompanying them to Canada. IRCC also warns that a person who fails to declare and have a family member examined as required may be unable to sponsor that person later. This is why an undeclared child can create the same type of problem.
“But It Was an Honest Mistake”
This is perhaps the hardest part for clients to understand.
A person may say:
“I wasn’t trying to hide my partner.”
“I thought common-law meant two years.”
“My child wasn’t coming to Canada with me.”
“I thought I only had to list dependants who were accompanying me.”
Those explanations may be highly relevant to the person’s circumstances and to any available remedy, but they do not automatically erase the operation of paragraph 117(9)(d).
The Federal Court of Appeal has upheld the validity and operation of this provision. In De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, the sponsor had failed to disclose family members when she immigrated to Canada and later attempted to sponsor her sons. The sons were found to be excluded from the family class under paragraph 117(9)(d) because they had not been disclosed and examined when their mother immigrated. The Federal Court of Appeal upheld the regulatory scheme and rejected the challenge to the validity of paragraph 117(9)(d). The case demonstrates an important principle: family reunification is an important objective of Canadian immigration law, but applicants are also required to disclose their family composition so that immigration authorities can examine family members when required.
A similar issue arose in Azizi v. Canada. The sponsor had not disclosed his wife and children when obtaining permanent residence and later attempted to sponsor them. The courts upheld the application of paragraph 117(9)(d). The Federal Court of Appeal confirmed that the regulatory scheme required disclosure of non-accompanying family members and that failure to declare them could prevent their subsequent admission through the family class. These cases demonstrate why an applicant should never assume that an undeclared family member can simply be “added later.”
There May also Be a Misrepresentation Issue:
Failure to disclose a spouse, common-law partner or dependent child can potentially raise another issue: misrepresentation.
Section 40(1)(a) of the Immigration and Refugee Protection Act provides for inadmissibility where a permanent resident or foreign national directly or indirectly misrepresents or withholds a material fact relating to a relevant matter that induces or could induce an error in the administration of the Act.
This does not mean that every undeclared-family-member case automatically results in a finding of misrepresentation. The facts, materiality, procedural history and circumstances must be examined carefully. It does mean, however, that applicants should not treat questions about marital status, common-law relationships and dependent children casually. The Lesson: Do Not Assume That meeting definition of “Common-Law” Means the Same Thing Everywhere. Canadian law does not have one universal definition of “common-law partner” for every legal purpose.
A couple in British Columbia may look at provincial family law and see a two-year period. But an immigration application is governed by federal immigration legislation, where common-law relationship is based on one year of cohabitation in a conjugal relationship. That difference can have enormous consequences.
If you are applying for Canadian permanent residence and you have a spouse, partner, child or other person who may meet the immigration definition of a family member, do not leave that person off the application simply because they are not accompanying you to Canada or because you believe they do not qualify. Disclose the circumstances accurately and obtain advice where necessary. A simple misunderstanding today can become a much more complicated immigration problem years later.
Contact YA Law Corporation
If you have previously obtained Canadian permanent residence and did not declare a spouse, common-law partner or dependent child, or if a sponsorship application has been refused because of paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, the circumstances should be reviewed carefully before another application is submitted.
This article provides general legal information and is not legal advice. Immigration cases are fact-specific and the law and applicable public policies may change.