ADVISE PLEASE - When your child is not part of your application!

[Cindy1]

In our initial application, we put on the form that my husband has one child. We wrote a letter explaining that he does not have contact with his son, and while we are required to list him on the applicantion we do not wish to include him with our application. We also indiciated that we realize this will prevent us from ever applying for his son. We also included an email from my husband to the mother of his child, asking if he could be including in the application, and she said NO. All communication must be sent thru her lawyer.

The letter we received from Buffalo is stating we need to include him in our application, and we need to do the medical for his son.

We thought we were clear that he is not to be included in our application. Any words of advise? We are not planning on sponsoring his son and don't forsee any easy way of doing this, without long drawn out battles in court.


HELP! :'(

 

[canadianwoman]

You and your husband should really try to get the medical done for his son. Just because the medical is done, does not mean the child will be coming to Canada now. However, it safeguards the right of your husband to sponsor the child later. Try to explain to the mother (through her lawyer if fine - in fact the lawyer will be more objective and may be able to convince the mother that the child should be examined) that the medical is just in case something terrible happens and the child has to come to Canada. If the mother dies, and the child is not examined now, he will never be able to go to Canada. If he is examined now, if there is such an emergency, the father will be able to sponsor him.

 

[Leon]

You need to include him in the application as not accompanying and you need to try to get his medicals and show proof that you tried, such as proof that the ex has full custody and flat out refuses.

If you couldn't get his medicals after trying, then your husband needs to write a statement and sign it preferably with witnesses, better yet get a lawyer to make it, stating that he has tried to get the medicals, it is not in his power and he realizes this will prevent him from ever sponsoring the child in the future.

 

[Baloo]

In our initial application, we put on the form that my husband has one child. We wrote a letter explaining that he does not have contact with his son, and while we are required to list him on the applicantion we do not wish to include him with our application. We also indiciated that we realize this will prevent us from ever applying for his son. We also included an email from my husband to the mother of his child, asking if he could be including in the application, and she said NO. All communication must be sent thru her lawyer.

The letter we received from Buffalo is stating we need to include him in our application, and we need to do the medical for his son.

We thought we were clear that he is not to be included in our application. Any words of advise? We are not planning on sponsoring his son and don't forsee any easy way of doing this, without long drawn out battles in court.


HELP! :'(

Well it will cause delays.

I assume this is an outland app'.

You need to look at http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf

Section 5.11

Inadmissibility and non-accompanying family members
All family members, whether accompanying the principal applicant or not, are required to be examined unless an officer decides otherwise. Normally, an inadmissible family member, whether accompanying or not, would render the principal applicant inadmissible. There are, however, two exceptions to this rule described in R23. The first is the separated spouse of the applicant and the second is where a child of the applicant who is in the legal custody of someone other than the applicant or an accompanying family member of the applicant, or where someone other than the applicant or accompanying family member of the applicant is empowered to act on behalf of that child by virtue of a court order or written agreement or by operation of law.

 

[Cindy1]

Thanks guys for the replies.

He does not even know where his sons resides.

He has his divorce papers from 10 years ago, saying that they have joint custody.

The mother, has since moved and my husband cannot find out where they are living. The only means of contact his via email and even that is not regularly answered.

Even if we were to get law enforcement involved to attempt to first find them and then take his son to get the medical exams, she will not be willing to get a Passport for their son.

Just when we thought everything was smooth sailing, we have hit a brick wall.

 

[Baloo]

Thanks guys for the replies.

He does not even know where his sons resides.
How old is the son?

Do you have the ability to contact the ex wife's lawyer?

He has his divorce papers from 10 years ago, saying that they have joint custody.
This may be an issue.

The mother, has since moved and my husband cannot find out where they are living. The only means of contact his via email and even that is not regularly answered.

Even if we were to get law enforcement involved to attempt to first find them and then take his son to get the medical exams, she will not be willing to get a Passport for their son.
I doubt that you would need to do this, taking a different approach is likely to be better.

Just when we thought everything was smooth sailing, we have hit a brick wall.

No, just a speed bump

I think you need to be working towards proving the VO's request cannot be met.
Follow the line that Leon suggests.

 

[janamay1967]

You and your husband should really try to get the medical done for his son. Just because the medical is done, does not mean the child will be coming to Canada now. However, it safeguards the right of your husband to sponsor the child later. Try to explain to the mother (through her lawyer if fine - in fact the lawyer will be more objective and may be able to convince the mother that the child should be examined) that the medical is just in case something terrible happens and the child has to come to Canada. If the mother dies, and the child is not examined now, he will never be able to go to Canada. If he is examined now, if there is such an emergency, the father will be able to sponsor him.

I have a similar issue: I have an 18 year old son that has just signed a 5 year contract with the US Army. He is obviously not immigrating with me. I included him on the application but did not get a medical. I assumed that his being in the army would be self-explanatory. Do you think this will foul up my application? Should I make him go for the medical anyway? Will being in the army exclude him?

Thanks,

 

[Cindy1]

Thank you Leon and Baloo.

We have been exploring all our options, which are minimal and your advise seems like our best option.

We realize it's still a long shot, and we are at the mercy of the VO but given that we have asked his son's mother multiple times to allow their son to take a medical exam, and each time she has denied the request. We have two emails from my husband, to their son's mother and in both she had said that she will not allow it.

We hope that this, plus letters of support from his parents, and siblings to attest that he has made repeated requests, with no avail, will support our request.

Thanks to Qorax, here is some helpful information for anyone else who may be in a similiar situation



OP 2 Processing Members of the Family Class
2006-11-14 12

If these family members are genuinely unavailable or unwilling to be examined, the consequences
of not having them examined should be clearly explained to the applicant and reflected in the
CAIPS notes. Officers may wish to have applicants sign a statutory declaration indicating they
understand the consequences of failing to have the family member examined.
See also section 5.12, Exclusion from membership in the Family Class – R117(9)(d), R117(10)
and R117(11) below.

5.12. Exclusion from membership in the family class – R117(9)(d), R117(10) and R117(11) (former
OM OP 03-19)
Under both the previous legislation and under IRPA, both the applicant and the applicant's family
members, whether accompanying or not, must meet the requirements of the legislation. There are
no exceptions to the requirement that all family members must be declared. With few exceptions,
this also means that all family members must be examined as part of the process for achieving
permanent residence.

Officers should be open to the possibility that a client may not be able to make a family member
available for examination. If an applicant has done everything in their power to have their family
member examined but has failed to do so, and the officer is satisfied that they are aware of the
consequences of this (i.e., no future sponsorship possible), then a refusal of their application for
non-compliance would not be appropriate.

Officers must decide on a case-by-case basis using common sense and good judgment whether
to proceed with an application even if all family members have not been examined. Some
scenarios where this may likely occur include where an ex-spouse refuses to allow a child to be
examined or an overage dependant refuses to be examined. Proceeding in this way should be a
last resort and only after the officer is convinced that the applicant cannot make the family
member available

 

[Leon]

I have a similar issue: I have an 18 year old son that has just signed a 5 year contract with the US Army. He is obviously not immigrating with me. I included him on the application but did not get a medical. I assumed that his being in the army would be self-explanatory. Do you think this will foul up my application? Should I make him go for the medical anyway? Will being in the army exclude him?

Thanks,

You should include him on your application, list him as not accompanying and get his medicals. It will save you a headache later because they will ask for them.

 

[Leon]

We realize it's still a long shot, and we are at the mercy of the VO but given that we have asked his son's mother multiple times to allow their son to take a medical exam, and each time she has denied the request. We have two emails from my husband, to their son's mother and in both she had said that she will not allow it.

But he has joint custody. Why is he not chasing this woman through the courts system to find his son and get his visitation rights? It seems you are giving up on this child very easily and that is something immigration does not like. There are ways to find her through the courts. If you have an email address she is regularly checking, a court order can get the IP where she is logging in from and the internet provider to reveal her address. A private eye might also be able to locate her for you. Is he paying her child support? Where is that money going?

Not getting the medicals is an option if the mother has full custody and flat out refuses. In this case, they have joint custody.

 

[etoile]

But he has joint custody. Why is he not chasing this woman through the courts system to find his son and get his visitation rights? It seems you are giving up on this child very easily and that is something immigration does not like. There are ways to find her through the courts. If you have an email address she is regularly checking, a court order can get the IP where she is logging in from and the internet provider to reveal her address. A private eye might also be able to locate her for you. Is he paying her child support? Where is that money going?

Not getting the medicals is an option if the mother has full custody and flat out refuses. In this case, they have joint custody.

Yes, this. This is your partner's child. What would happen if the mother died and he would not be allowed to have his own child live with him in Canada? This really off to me. Especially since he has joint custody.

 

[Cindy1]

But he has joint custody. Why is he not chasing this woman through the courts system to find his son and get his visitation rights? It seems you are giving up on this child very easily and that is something immigration does not like. There are ways to find her through the courts. If you have an email address she is regularly checking, a court order can get the IP where she is logging in from and the internet provider to reveal her address. A private eye might also be able to locate her for you. Is he paying her child support? Where is that money going?

Not getting the medicals is an option if the mother has full custody and flat out refuses. In this case, they have joint custody.

Thanks Leon for your answer. Yes he has been paying child support. There were two periods in time, where he was laid off, one for 7 months and another for 18 months that he feel behind with his child support payments, other than that he has regularly paid child support.


This scenario we didn't expect it to be an issue, but now it seems that it's a major hurdle. Seeking a private eye, and going through the court systems appears that the approval of our application is going to go from expected months to expected years.

Last night I was awakened by a nightmare, that we got a denial letter. :'(

 

[Leon]

Cindy, you can imagine how many people there are who do not include their children in their application, then the situation changes, like other people have said, the mother could die and there is nobody to take care of the child or maybe the child grows up and decides at 18 that his mother is a big B for denying him contact with his father all these years and he wants to come and live with/near his father to get to know him. In these cases, because the child didn't have medicals at the time of the dads PR application, the child can not be sponsored.

Immigration does not want to make it easy for people to not include their children. They will give an exception IF it is proven that the other parent has full custody and is flat out denying the medicals but you can not prove that without trying and it sounds like to me that he hasn't even tried. It sounds like the mother moved away and he is not going after his visitation even though he has joint custody. Many fathers would be screaming in that situation that she has kidnapped the child and they want their rights. What is he doing? Doesn't sound like much. He should have had a lawyer as soon as she moved working on getting his rights through the courts and finding her. If he had done that, it would already be done and would not be an issue now. It could have resulted in him getting full custody or her getting full custody but at least it would have been clear who has the right to deny what to whom.

 

[Cindy1]

In the letter we received from Immigration, it said we needed to submit the medicals for his son within 90 days, or that his application could be denied.

Assuming we go through the Private Eye route, go through the courts, get the medicals it's very likely all this will be much more than 90 days.

If our application is denied because we were unable to meet the 90 days, does this mean we have to start the whole application process from square one again? Pay fees, FBI check, medicals for my husband, supporting docs, etc etc?

 

[Leon]

Yes, I believe if you miss the deadline, you must apply again from scratch. If you already paid the right of residence fee, you will get that one back.