Advice needed guys

[hambousha]

Dear all

Greetings !
I need a simple advice if you can
I and my wife are getting through tough time now and we might get divorced and if this happens, she and my 2 year old kid might not go to Canada.

My questions are ;
1-If we get divorced, does that affect their PRs statuses ?

2-If I live in Canada and get the citizenship and my kid never goes to Canada and did not even renew his PR because he does not meet the criteria, Might he get the citizenship because I will get it ?
We landed and now in our home countries to finalize some stuff

Appreciate your kind advice !
Best regards,

 

[Bs65]

Simple answers and others can comment

1)Divorce in itself should have no impact given maintaining PR status residency obligation post landing is an individual responsibility children included. So 2 years resident out of every 5 years.

2)you getting citizenship has zero influence on your children getting citizenship as they would still need to meet any residency requirements to obtain citizenship.

If your children or your wife never return to Canada their PR status will be at risk should they not meet the 2 out 5 RO and try to return at some later date where they may get reported at the border.

There are cases where children when they are older appeal any possible revoking of PR on basis as minors they had no choice but to leave with parents. Generally any such appeal is before they reach age 19 to be successful and show they fully intend to reside in the country to reset their RO.

PR status by the way nevers expires automatically it can only be renounced by an individual or revoked by immigration for some reason such as failing RO

 

[hambousha]

Simple answers and others can comment

1)Divorce in itself should have no impact given maintaining PR status residency obligation post landing is an individual responsibility children included. So 2 years resident out of every 5 years.

2)you getting citizenship has zero influence on your children getting citizenship as they would still need to meet any residency requirements to obtain citizenship.

If your children or your wife never return to Canada their PR status will be at risk should they not meet the 2 out 5 RO and try to return at some later date where they may get reported at the border.

There are cases where children when they are older appeal any possible revoking of PR on basis as minors they had no choice but to leave with parents. Generally any such appeal is before they reach age 19 to be successful and show they fully intend to reside in the country to reset their RO.

PR status by the way nevers expires automatically it can only be renounced by an individual or revoked by immigration for some reason such as failing RO

Thanks for your reply
To what extent are you sure about the second answer because another one sent me no they are not affected and you apply for the kid (Minors are not affected by residency obligations)

 

[Bs65]

Yes I got that wrong they do not have the residency requirement if under 18 but could still lose PR status in the mean time if do not ever live in Canada would be my understanding. But not sure a child can land for a few days maintain PR without ever living in the country then get citizenship. Maybe others can comment as I got the first answer wrong. http://www.cic.gc.ca/english/citizenship/become-eligibility.asp

The child still needs to be a PR to get citizenship regardless of whether the citizenship residency requirements are waived or not would still be my understanding but I may well be wrong. Although PR status never expires it would seem odd for PR to not be revoked if a child has never really lived in Canada and then applies for some other immigration process such as citizenship whilst not even in the country.

So for me anyway thats how I would interpret it the child needs to meet PR RO but not necessarily the citizenship residency obligation when a parent applies for citizenship at the same time meaning the child cannot live outside Canada and get citizenship unless maintaining as a minimum PR

 

[rish888]

Hambousha,

Minors don't have a residency obligation to apply for citizenship; however, this only applies if their application for citizenship is processed with that of at least one parent. (The parent would need to meet the 4/6 year residency obligation.)

Once 18 and having lived in Canada for over 4 years in the past 6, you child can apply for citizenship in their own right regardless of your status.

Please note that while minors don't have a residency obligation when applying for citizenship, they do have a residency obligation to maintain their PR (2/5 years)

As bs65 said, if your child leaves the country as a result of your actions, when 18 your child could either apply for a PR TD at the local embassy or seek admission at a land border on H&C grounds.

Hope this helps!

 

[hambousha]

Hambousha,

Minors don't have a residency obligation to apply for citizenship; however, this only applies if their application for citizenship is processed with that of at least one parent. (The parent would need to meet the 4/6 year residency obligation.)

Once 18 and having lived in Canada for over 4 years in the past 6, you child can apply for citizenship in their own right regardless of your status.

Please note that while minors don't have a residency obligation when applying for citizenship, they do have a residency obligation to maintain their PR (2/5 years)

As bs65 said, if your child leaves the country as a result of your actions, when 18 your child could either apply for a PR TD at the local embassy or seek admission at a land border on H&C grounds.

Hope this helps!

Thanks a lot
So what I understand that;
My child is now 2 years
He has to stay 2/5 years to renew his PR so When I apply for citizenship after four years, I can apply for him as long as he holds a valid PR despite not completing the four years himself ..
Correct?

 

[rish888]

Let me put it this way.

The PR card your child gets is valid for 5 years.

This means that he must return to Canada in a way such that there are at least 2 years left on the validity of the card. This is so he can technically meet the Residency Obligation before he renews his card (one instance in which residency is verified.)

However, the moment you complete 4 years, you child can be processed for citizenship with you.

In the above instance, he would have lived in Canada for only 1 year before his application for citizenship.

The residency obligation for a PR must be separated from Citizenship.

There is no residency obligation for citizenship, however there is a residency obligation for PR status, which is a prerequisite for citizenship.

You must make sure that your child complies with the residency obligation so that his PR status is not questioned, as that may affect his citizenship application.

If you have been and will continue to reside permanently in Canada, you can bring your child in at anytime as long as there a 2 years left on his PR card validity. Both of you can then apply for citizenship together.

 

[Rob_TO]

2-If I live in Canada and get the citizenship and my kid never goes to Canada and did not even renew his PR because he does not meet the criteria, Might he get the citizenship because I will get it ?

Interesting situation.
Here are rules for minors citizenship: http://www.cic.gc.ca/english/resources/tools/cit/grant/minors.asp
The minor must be a permanent resident of Canada, not have lost that status and have not unfulfilled conditions relating to that status.

As long as "unfulfilled conditions" doesn't relate to the residency obligation, then it would be fine to apply for their citizenship while they do not meet the RO.

Here is the app for minors: http://www.cic.gc.ca/english/pdf/kits/citizen/CIT0003E-2.pdf
Note question 9, which asks the date they became a PR and all the absences outside Canada since then. So IRCC is interested in the child's residency history, and will be very aware they do not meet the RO.

That being said, even if there was a requirement for minor to meet the RO to get citizenship, a child being removed from Canada is a very common situation where a visa officer would usually grant a H&C basis to overcome the RO violation. So my guess is that the child should be able to get citizenship either way (of course I've never actually seen a case of this).

 

[rish888]

Hambousha,

In relation to the specific situation which Rob_TO quoted (about your child getting citizenship if you're a citizen) the answer is a little complicated.

The child of a Canadian citizen (who acquired citizenship after the child's birth) is not directly entitled to any sort of Canadian citizenship.

However, there is a particular situation where your child could get citizenship indirectly if you were a citizen:

Under the IRPA, there are many ways in which one can satisfy their residency obligation, and not all of them include living in Canada.

One such situation is if a spouse or a dependent minor is accompanying a citizen outside Canada. (To meet the definition of "accompanying" you must usually be living under the same roof.)

As such, if your child just stays outside of Canada, and does do anything that may trigger a review of residency, for example trying to enter Canada with less than two years remaining on the PR card or applying for a PR Travel document after expiry of a PR card, then you could do the following:

Get your citizenship, leave Canada (as citizens don't have a RO of any sort) go stay with your child for two years, then your child, having met his RO by accompanying a Canadian citizen outside Canada, may apply for citizenship.

While the above may not be convenient for you, it is a possibility. I do personally find it to be unethical as it would be exploiting the system, but nonetheless it would be completely legal.

As an alternative to this, as I said previously, you could just bring your child to Canada with 2 years left on his PR card (at which time you would have lived in Canada for 3 years) wait one year and apply for citizenship. (when you meet 4 years) Once citizenship is granted you and your child can leave and enter Canada.

 

[Rob_TO]

Get your citizenship, leave Canada (as citizens don't have a RO of any sort) go stay with your child for two years, then your child, having met his RO by accompanying a Canadian citizen outside Canada, may apply for citizenship.

There is some debate on this exception to the RO, in terms of the word "accompanying". Since the child would already be in another country it would be the citizen parent moving to accompany the child, not the child moving to accompany the citizen parent. So there may be some complications.

However in general, IRCC does not usually revoke PR status of children attempting to enter Canada as the H&C clause around being removed as a minor would apply here. However a visa officer may need assurance the child is actually moving permanently to Canada to apply the H&C allowance here.

Also there is no specific rule I see that states a PR child not meeting the RO, would be refused citizenship if included in their PR parent's citizenship app. I'm not entirely sure how "unfulfilled conditions" should be interpreted here.

 

[rish888]

You make a valid point Rob_TO,

I know there has been some case law as regards to spouses who are separated and live physically close to each other yet they are separated, and whether or not they can claim "accompaniment."

As far as I know I don't think there is any prior case law as regards to the situation I described.

Usually the concept of "unfulfilled conditions" from what I understand is in cases when people immigrate under the entrepreneur category and need to set up a business etc. I do have trouble understanding how this could apply to minors though.

While I don't believe the RO is in and of itself a condition of PR, it is a reason to lose it, when applying for citizenship if they run a check into the PR status of the minor and find him to be in violation that could quite possibly be an issue.

If he gets his kid with still 2 years left on the minor's PR card then the RO is not an issue, he could make an application for citizenship after 1 year (in which case the minor has not violated his RO as his PR card is still valid and he could theoretically meet the 2 year requirement before renewal) and then once citizenship comes through move in and out freely.