Immigrating to Canada: Dependant Children Lock-in Dates

Please be aware that this article is accurate as of January 29, 2006

This article is intended to be used as general information only, not as legal advice.

The Situation

Consider the following situation – you are applying for Canadian permanent residence. You apply as a skilled worker, and include your spouse and both of your sons on your application. Your sons are aged 21 and 22 years of age, financially dependant on you, and both in school full-time. Therefore, at the date of your application your sons qualify as a "dependant children" (definition below), and may be included on your application to immigrate to Canada. This is important, for your only children that may immigrate with you on your application are your "dependent children".

Your application takes one and a half years to process, and by the time the immigration officer finally makes a decision regarding your case, you sons have finished their schooling, are no longer financially dependant on you, and are aged 23 and 24.


The Question

Are your two sons still eligible to be on your Canadian immigration application as "dependent children"?


The Statutory Rules

Non-Canadians are allowed to apply to immigrate to Canada in the "skilled worker" category, which assesses an applicant's ability to immigrate to Canada based on a combination of many factors, including work experience, education, and language ability.

Applicants in the skilled worker category are allowed to include their spouse and their and dependent children on their applications, in order to allow their spouse and dependent children to immigrate with them to Canada, if their application is successful.

For the purposes of skilled worker applications, "dependent children" are defined as including (among other factors), children who are less than 22 years of age, or children who are 22 years of age or more, but who have been substantially financially dependant on their applying parent since before reaching age 22, and who has also been, since before age 22, in school on a full-time or continuous basis.

However, one important factor which is not defined in the statutory rules is exactly when information regarding dependants is "locked in", or be "frozen" on the application form. In other words, will a child's age and financial dependency be calculated as of the application date, or as of the immigration officer's decision date, or as of some other date?


Lock-in Date for Age

Citizen and Immigration Canada ("CIC") has internal policies which lock in the age of the child as of the date of the date of the application.

CIC's internal policies provide that the lock-in date for age for dependant children of skilled workers occurs as of the date of the application. The CIC policy manual gives the following definition of lock-in date:

Lock-in date

The lock-in date is a reference point used to freeze certain factors for the purpose of processing applications. Neither the Act nor Regulations define it. It does not overcome any requirements of the Act and Regulations applicants must satisfy when an officer admits them…

Refugee and Economic class: Lock-in (of age) occurs when a visa officer has accepted a submission as an application…

This policy does not conflict with jurisprudence in this area (jurisprudence being of higher authority than CIC policy).

Therefore, in the example above, your youngest son would continue to be eligible as your dependent child, even a year an a half after the date of application, for he was 21 at the time of the "lock-in" date for age.


NEW Lock-in Date for Financial Dependency

In contrast to the lock-in date for age, in the past CIC maintained that the lock-in date for financial dependency was the date of the application being decided.

Therefore, in the example above, according to former Canadian immigration policy, your oldest son would not be eligible as your dependant child as of the day that an immigration officer made a decision on your file, one and a half years after you applied, for at that time he was no longer financially dependant on you, despite his financial dependency on the date of your application. Combined with his age, he would thus no longer be considered a "dependant child".

However, this has now changed, at least for the time being. In Hamid, a Federal Court of Canada court case decided in December 2005, the court held that, in the absence of a contrary statutory requirement, the lock-in date for financial dependency for the dependant children of skilled workers is the day of application. The court in Hamid explained that the lock-in date for age logically should also apply to that of financial dependency – that there is no principled reason for an applicant to be penalized for a delay in processing, for this is beyond an applicant's control.


Conclusions

Hamid is a very important case for skilled worker class applicants, for it means that an applicant's children may be considered dependent children, and therefore allowed to remain on the applicant's application for a longer period of time.


Final Points

Please be aware of the following points, which are very important to keep in mind:

- Please be aware that this article is accurate as of January 29, 2006. The law changes often, so be sure that you are aware of the most current law. Please be in touch with me at any time in order to request information regarding the current law. I can be reached at www.canada-immigrate.ca.

- The new rules regarding the lock-in date for financial dependency applies to applicants under the skilled worker class only – it does NOT apply to applicants under the family class.

- The lock-in date applies for applications that are complete and in compliance with all statutory requirements. In other words, until an application made properly and fully, there is not lock-in date.

- Hamid will likely go to the Federal Court of Appeal, and once the case is heard at that court, there may be a decision that a different lock-in date is more appropriate than the date of application.