UNDECLARED CHILD, WHAT TO DO

[ifeedly]

Canada is a very interesting and fun country.

In this country there are certain things that can get you in trouble fast (Most of the problems new people experience in Canada result from atleast one item from this list)
1) Greed
2) Compromises
3) Deception
4) trying to find a way against law
5) Not following established protocol.

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Couple of things that are going to help everybody and have helped everybody in coming here and prospering:
1) Follow the rule of land
2) Use the services provided by government
3) Know what to look for
4) Dont deal with shady people
5) Follow the guidelines provide by government.

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with all that
this is what it is about this clients case:

What you are getting from this forum is legal advise which none of us is qualified to give.
experience posting on web based forums comes from reading and learning and is not equal to sound legal advise.
case law is good but there were more thans 500 cases decided upon in last 15 days in federal court, has anybody on this forum studied them?

if somebody thinks that lawyers are bad its their personal opinion and lack of understanding about Canadian system.
(rule 5 also applies to shady people representing as certified lawyers)

if the government has created a system where you can get legal representation for free (FREE FREE FREE FREE) in Canada then make use of it instead of believing people like us on this forum, whose only qualification is applying for immigration and getting approved (which is very easy if you put ur papers in a straight line).
it takes 5-10 years to do the degree and become a lawyer in Canada, even the immigration consultants now a days have to go through rigorous academic training before they receive their license.

and as always whenever in doubt refer to first 5 rules that can get you in trouble and second 5 rules that will keep you safe.

 

[Rob_TO]

Canada is a very interesting and fun country.

You seem to have a problem comprehending what i was saying so I'll try to restate. I never said all lawyers are bad, I'm telling the OP to know as much about their situation as possible before they go for any first consultation with a lawyer.
You are new to this site, so I recommend for you to go and search for all the posts of people's negative experiences with their lawyers. You will soon see there are hundreds of posts where lawyers have given horrible advice to people or simply didn't understand the rules, causing serious problems and hardships for many. And yes these are the same lawyers who spent 5-10 years in school. A degree doesn't guarantee any given lawyer will be incompetent or devious.

So again the OP should take the advice given, learn from other's experiences on this site, and read countless past court cases (and yes, of which people on this forum have studied) dealing with this exact same issue of not declaring a dependent child. Then they will have a better understanding of their situation so will be better prepared when they do eventually go to see a lawyer.

Simply saying "go to a lawyer" and leaving it at that, doesn't really help them.

 

[SamHom]

Although getting a lawyer may be worth a shot unless it's super expensive, Rob's advice to be careful and aware is a very good one indeed.

Do some googling. Ask a few lawyers (that's not practising immigration law), the bar has a really bad rumour. To my understanding, it's common that lawyers do this for a few years, and then move on to other areas of the law. I can't tell if the above is 100% correct, but these are common views if you look around.

My own personal experience? We are dealing with a law firm on our case because we wanted peace of mind. What we got is far from peace of mind. They're incompetent, they don't care and they have given me so much incorrect information it's crazy. If they screw up my case, what can I do? I'm just a poor immigrant. A poor broke immigrant. Maybe that's their reasoning and others, who knows.

 

[kangamoose]

Canada is a very interesting and fun country.

In this country there are certain things that can get you in trouble fast (Most of the problems new people experience in Canada result from atleast one item from this list)
1) Greed
2) Compromises
3) Deception
4) trying to find a way against law
5) Not following established protocol.

----------------------------------------------------------------------------------------------------
Couple of things that are going to help everybody and have helped everybody in coming here and prospering:
1) Follow the rule of land
2) Use the services provided by government
3) Know what to look for
4) Dont deal with shady people
5) Follow the guidelines provide by government.

-------------------------------------------------------------------------
with all that
this is what it is about this clients case:

What you are getting from this forum is legal advise which none of us is qualified to give.
experience posting on web based forums comes from reading and learning and is not equal to sound legal advise.
case law is good but there were more thans 500 cases decided upon in last 15 days in federal court, has anybody on this forum studied them?

if somebody thinks that lawyers are bad its their personal opinion and lack of understanding about Canadian system.
(rule 5 also applies to shady people representing as certified lawyers)

if the government has created a system where you can get legal representation for free (FREE FREE FREE FREE) in Canada then make use of it instead of believing people like us on this forum, whose only qualification is applying for immigration and getting approved (which is very easy if you put ur papers in a straight line).
it takes 5-10 years to do the degree and become a lawyer in Canada, even the immigration consultants now a days have to go through rigorous academic training before they receive their license.

and as always whenever in doubt refer to first 5 rules that can get you in trouble and second 5 rules that will keep you safe.

Rule "4) trying to find a way against law". What you are telling the OP is to get a lawyer to challenge the immigration system and "find a way against the law". The OP willingly left a member of his family off the application and the law states that family member can never be sponsored. Rob_TO has given some very sound advice, know all the facts before consulting a lawyer. Read the case law and from that you can determine if the case has a chance at winning. Don't take the lawyers word for it, its your life you need to informed.

We might just be people on the internet but we are informed people because we took the time to learn the immigration system to give our applications the best chance of success. We may not have 4 years of law school under our belts but each one of us took the time to put our own applications together and spent hours reading before sending our applications in.

 

[Marlee]

Just out of curiosity... even if he can't sponsor his child - can't his wife still do so once she becomes a PR?
Meaning he would sponsor her as his wife and once she lands she applies for the sponsorship of her child?
I'm not that familiar with the Family Class regulations but maybe it is a possibility?!

 

[Ponga]

Just out of curiosity... even if he can't sponsor his child - can't his wife still do so once she becomes a PR?
Meaning he would sponsor her as his wife and once she lands she applies for the sponsorship of her child?
I'm not that familiar with the Family Class regulations but maybe it is a possibility?!

I don't think so, because she would need to show/declare the child in her own sponsorship application.

 

[Marlee]

Yes, but would she still be banned from sponsoring the child though? After all she was not the one who misrepresented any information. It was her husband.

 

[Rob_TO]

I don't think so, because she would need to show/declare the child in her own sponsorship application.

Right, he would need to sponsor his wife and child in the same application. However since the child is not recognized as a member of the family class due to not being declared, the child can't be included in the wife's PR app as a dependent (accompanying or non-accompanying). So there is also no chance for the wife to sponsor the child after she gets PR, because the child would need to be left out of her own application as well.

 

[Ponga]

Yes, but would she still be banned from sponsoring the child though? After all she was not the one who misrepresented any information. It was her husband.

Agreed, but when she includes her daughter in her own application, and the sponsor is denied for misrepresentation...how can she land as a PR without her daughter being included in her application?

 

[Rob_TO]

Agreed, but when she includes her daughter in her own application, and the sponsor is denied for misrepresentation...how can she land as a PR without her daughter being included in her application?

Note that the sponsor would be denied due to trying to sponsor someone (the child) that is not recognized as a member of the family class. The denial would not be due to misrepresentation (though that is what caused everything).

If the PR wanted to just sponsor his wife and leave the child out of the application (they would mention the child but they would not be listed as a dependent), that would most likely work and she could get PR. Though the husband and wife would basically need to abandon the child in their home country since they could never become PR though them.

 

[SamHom]

Note that the sponsor would be denied due to trying to sponsor someone (the child) that is not recognized as a member of the family class. The denial would not be due to misrepresentation (though that is what caused everything).

If the PR wanted to just sponsor his wife and leave the child out of the application (they would mention the child but they would not be listed as a dependent), that would most likely work and she could get PR. Though the husband and wife would basically need to abandon the child in their home country since they could never become PR though them.

There's no way that you can win in court that the mother was the one who did the misrepresentation since she was main applicant? And therefore the husband should be allowed to bring both wife and kid?

 

[Rob_TO]

There's no way that you can win in court that the mother was the one who did the misrepresentation since she was main applicant? And therefore the husband should be allowed to bring both wife and kid?

It doesn't matter who committed what misrepresentation or who is to blame.

The only thing that matters is that the child was not declared so is not recognized as a member of the family class under him, so if sponsoring his wife for PR the child would not be allowed to be included in the app since he is not recognized as a dependent. And since he can't be part of the app, that also means the mom can't sponsor the child later on after she becomes PR (to do this the child would need to have been included as a non-accompanying dependent).

CIC in general takes the same stance whether the non-declaration was an intentional omission or a complete accident by misunderstanding the rules at the time. So far the only court cases I've seen where people have been successful in overcoming a non-declaration is in cases they genuinely had no idea the child even existed during the application process. If there are other court cases on record where people have been successful for other reasons, I would love to see them.

 

[ifeedly]

The first rule of dealing with intelligent people is to know that there is going to be healthy debate about everything.
and I appreciate the input of all those who replied.

My call to all those who have been here(forum) for a while and have been helping people through this forum is to appreciate the fact that
the government of Canada has done a lot of work in supporting the immigration. The legal system is very strong and is in favor of people.

If you are in the country already there are whole lot of straight forward avenues available for individuals that they can access without worrying about anything.
when those avenues are available then people who need them should be guided towards them instead of perpetuating a negative view towards due process.

Canadian system is based on living within the law, following it and even if there are loopholes that could be used then declining to use those loopholes.

In reference to the present case :

1) The person most affected by the issue is in Canada and he is able to use these resources then why not guide him where he can get more competent advise by the people who are actually qualified to provide that advise and are able to represent him legally.

1.1) Does anybody on this forum feels confidant that they can act as a representative for the individual they are giving advise to and represent them in front of CIC or government??

2) Just because the people have been on this forum for a couple years does it give them the right to say that they are better than the Canadian system.

3) Why cant we learn humility and understand that the purpose we are here is to help people and provide them the best possible advise and letting them know that they don't need to be scared or afraid in Canada.

4) Being active on this forum is almost similar to community service or working for an NGO, then why cant we behave in a manner befitting one and keep law of the land supreme.

5) The reason some of the immigrants encountered people who tried to mislead them is because they dealt with incompetent people who did not understand the system and law and these incompetent people believed that they knew everything.

6) And for all those who are still seething: look at the forum, it is paid for by a lawyer. Yes, a lawyer actually pays for this forum and hosts this forum and still gets to see people degrading his profession.

7) No I am not pro lawyers or Consultants but I believe in Canadian system because I have been here long enough to realize that.

--> If the person who asked the original question would have known about the services available to Canadians and permanent residents and everybody who is in Canada then she would not have posted to this forum. In that case is it not everybody's duty to advise her appropriately and let her know there is help.

9) People who serve public have no need for arrogance and they realize that sometime just saying the most routine things will help others find a way.

10) No, I dont work for government.

Take care guys and keep smiling.

 

[ifeedly]

Rule "4) trying to find a way against law". What you are telling the OP is to get a lawyer to challenge the immigration system and "find a way against the law". The OP willingly left a member of his family off the application and the law states that family member can never be sponsored. Rob_TO has given some very sound advice, know all the facts before consulting a lawyer. Read the case law and from that you can determine if the case has a chance at winning. Don't take the lawyers word for it, its your life you need to informed.

We might just be people on the internet but we are informed people because we took the time to learn the immigration system to give our applications the best chance of success. We may not have 4 years of law school under our belts but each one of us took the time to put our own applications together and spent hours reading before sending our applications in.

What can I say? if legal representation for you means circumventing the law then I dont think I can say anything that would hold meaning for you.
anyway, peace.

 

[zardoz]

At risk of being boring, this is what the Law actually states in Section 117...
http://laws-lois.justice.gc.ca/eng/regulations/sor-2002-227/FullText.html

Excluded relationships

(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

(a) the foreign national is the sponsor’s spouse, common-law partner or conjugal partner and is under 18 years of age;

(b) the foreign national is the sponsor's spouse, common-law partner or conjugal partner, the sponsor has an existing sponsorship undertaking in respect of a spouse, common-law partner or conjugal partner and the period referred to in subsection 132(1) in respect of that undertaking has not ended;

(c) the foreign national is the sponsor's spouse and

(i) the sponsor or the foreign national was, at the time of their marriage, the spouse of another person, or

(ii) the sponsor has lived separate and apart from the foreign national for at least one year and

(A) the sponsor is the common-law partner of another person or the sponsor has a conjugal partner, or

(B) the foreign national is the common-law partner of another person or the conjugal partner of another sponsor; or

(c.1) the foreign national is the sponsor’s spouse and if at the time the marriage ceremony was conducted either one or both of the spouses were not physically present unless the foreign national was marrying a person who was not physically present at the ceremony as a result of their service as a member of the Canadian Forces and the marriage is valid both under the laws of the jurisdiction where it took place and under Canadian law;

(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

Marginal note:Exception

(10) Subject to subsection (11), paragraph (9)(d) does not apply in respect of a foreign national referred to in that paragraph who was not examined because an officer determined that they were not required by the Act or the former Act, as applicable, to be examined.

Marginal note:Application of par. (9)(d)

(11) Paragraph (9)(d) applies in respect of a foreign national referred to in subsection (10) if an officer determines that, at the time of the application referred to in that paragraph,

(a) the sponsor was informed that the foreign national could be examined and the sponsor was able to make the foreign national available for examination but did not do so or the foreign national did not appear for examination; or

(b) the foreign national was the sponsor's spouse, was living separate and apart from the sponsor and was not examined.

It makes no reference to blame or reasons. It's an absolute.