Just discovered I have an illegitimate child after 16 years

[dasi40]

I am a PR in Canada and I have 3 kids from my wife of 12 years. I had received an unexpected call (about 2 weeks ago) from a former girl-friend that she had a baby-girl for me who is now 16 years old.
From the picture she sent to me, her claim is likely to be very correct but I am also trying to request for her DNA analysis and match it with mine here in Canada to validate her claim.
My name is not on her birth certificate and of course, I didn’t mention her in my PR application. Her mum will not hesitate to release her to join me in Canada if the paternity test confirms me as the father. Please, what is the best way to sponsor her to join me in Canada?
Dasi

 

[sariss]

You may need to call an immigration lawyer to see what they think. Generally, if you did not mention a child on an application, they are ineligible to be sponsored. But in this case, I am not sure.

 

[frege]

Section 117(9)(d) of the Immigration and Refugee Protection Act makes it impossible to sponsor a child in these circumstances, even though the omission was inadvertent. The only option in these cases is to apply on humanitarian and compassionate grounds. This is an extremely complicated area of the law, and there is really no choice but to involve an *excellent* immigration lawyer for this. There is currently a legal dispute about in what ways refusals in these cases can be appealed, so it is quite possibly entirely up to CIC whether to allow someone in.

Some of the factors likely to be considered are:

1) If the child has lived their life in their own country up until now, why do they need a connection with Canada? In this case, you might be required to demonstrate that you have taken on a "father" role.

2) Does CIC believe you didn't know about the child?

3) What exactly was the law, and what were CIC forms like, when you became a PR? Were you given fair warning about the consequences?

(Don't discuss these issues here - they're just examples, and you should try reasonably to keep information confidential. You might also consider modifying your post to remove any information that would allow CIC to identify your case later on.)

Because a case like this is so complicated, and involves many fine legal points, you will need to do research to find a lawyer who can deal with a case like this properly.

If you Google "117(9)(d)", you'll find writings on this subject. To get you started, here are a couple of articles, the second of which, from July 2013, shows that jurisprudence is still changing in this area.

http://www.cba.org/cba/cle/pdf/Rubinoff2.pdf

http://www.stevenmeurrens.com/2013/07/the-jurisdiction-of-the-iad-in-considering-procedural-fairness-in-1179d-cases/

 

[zardoz]

From the facts offered in the initial post in this thread, even if the IAD were able to consider an H&C exemption from 117(9)(d), I suspect that it would find that the lack of parental involvement for the first 16 years of the child's life would negate the H&C application. At this late point in the child's development, a demonstrable "father" role would be hard to establish.

 

[PMM]

Hi

Section 117(9)(d) of the Immigration and Refugee Protection Act makes it impossible to sponsor a child in these circumstances, even though the omission was inadvertent. The only option in these cases is to apply on humanitarian and compassionate grounds. This is an extremely complicated area of the law, and there is really no choice but to involve an *excellent* immigration lawyer for this. There is currently a legal dispute about in what ways refusals in these cases can be appealed, so it is quite possibly entirely up to CIC whether to allow someone in.

Some of the factors likely to be considered are:

1) If the child has lived their life in their own country up until now, why do they need a connection with Canada? In this case, you might be required to demonstrate that you have taken on a "father" role.

2) Does CIC believe you didn't know about the child?

3) What exactly was the law, and what were CIC forms like, when you became a PR? Were you given fair warning about the consequences?

(Don't discuss these issues here - they're just examples, and you should try reasonably to keep information confidential. You might also consider modifying your post to remove any information that would allow CIC to identify your case later on.)

Because a case like this is so complicated, and involves many fine legal points, you will need to do research to find a lawyer who can deal with a case like this properly.

If you Google "117(9)(d)", you'll find writings on this subject. To get you started, here are a couple of articles, the second of which, from July 2013, shows that jurisprudence is still changing in this area.

http://www.cba.org/cba/cle/pdf/Rubinoff2.pdf

http://www.stevenmeurrens.com/2013/07/the-jurisdiction-of-the-iad-in-considering-procedural-fairness-in-1179d-cases/

1. There is no discussion. The child was not examined (whether he knew or didn't no is immaterial) so is not a member of the family class. If the child is not a member of the family class, then there is no appeal to the IAD
2. The link you gave is 5 years old. Better information at the Federal Court http://decisions.fct-cf.gc.ca/en/ Search with the exact phrase 117(9)d

The Court of Appeal has therefore decided that the impugned regulation is not utltra vires the IRPA particularly in cases where there is a misrepresentation to immigration authorities. Here, however, the Applicant did not know of his son's existence at the time of his application for permanent residence. He cannot, therefore, be said to have concealed this information or to have misrepresented his circumstances. In my view, it matters not whether non-disclosure is deliberate or not. The regulation is clear, paragraph 117(9)(d) makes no distinction as to the reason for which an non-accompanying family member of the sponsor was not disclosed in his application for permanent residence. What matters, is the absence of examination by an officer that necessarily flows from the non-disclosure. This interpretation is consistent with the findings of my Colleague, Justice Mosley in Hong Mei Chen v. M.C.I., 2005 FC 678, where the scope and effect of the impugned regulation were found not to be limited to cases of fraudulent non-disclosure. At paragraph 11 of his reasons, my learned colleague wrote, “... Whatever the motive, a failure to disclose which prevents the immigration officer from examining the dependent precludes future sponsorship of that person as a member of the family class.”

Note the IAD can't consider H.& C. as the child is not a member of the family class, only the Visa officer processing the application can.

 

[frege]

1. There is no discussion. The child was not examined (whether he knew or didn't no is immaterial) so is not a member of the family class. If the child is not a member of the family class, then there is no appeal to the IAD
2. The link you gave is 5 years old. Better information at the Federal Court http://decisions.fct-cf.gc.ca/en/ Search with the exact phrase 117(9)d

On point 1, it is not immaterial with respect to an H & C application. A person who had deliberately circumvented the law would have a much harder time.