Surrogacy and Immigration Considerations

Surrogacy in Canada is a legal option and a highly fulfilling alternative for couples that have difficulty creating a family on their own. It is also a wonderful opportunity for women to change the lives of those who cannot carry a child to term.

TYPES OF SURROGACY

Different types of surrogacy.

§  Genetic Surrogacy: when the genetic mother’s ovum or ova and the genetic father’s sperm are fertilized and implanted into the womb of a third party, the surrogate. Thus, the baby in a genetic surrogacy is not related to the woman who carries him or her.

§  Donor Egg Surrogacy: where the intended father is genetically related to the child, but the carrier and the intended mother are not.

§  Donor Sperm Surrogacy: where the carrier is not genetically related to the child but carries the intended mother’s ova, which have been fertilized by a donor (not the intended father).

§  Traditional Surrogacy: where the carrier is genetically related to the child that she bears for the intended parents.

IS SURROGACY LEGAL? 

In Canada, it is legal to enter into a surrogacy agreement. The Ontario Courts routinely grant Parentage Applications in the case of genetic, donor egg and donor sperm surrogacies. This means that the intended parents, not the surrogate or her spouse, will be named on the child’s birth certificate.

CAN A SURROGATE BE PAID?

A surrogate cannot be paid for her services but her pregnancy related expenses can be paid. In addition, a surrogate must be at least 21 years old.

SURROGACY CONTRACT

It is beneficial to draft a contract between you and the surrogate to outline her rights and responsibilities and yours. This contract shows the intention of the parents and displays the agreement between the surrogate and the parents.  A surrogacy contract can cover the following matters:

§  psychiatric or psychological pre-screening

§  behaviour during pregnancy

§  issues governing expenses, insurance and reimbursements

§  issues surrounding genetic testing of the fetus

§  arrangements concerning custody of the child in the event that something happens to the intended parents (including injury, separation or divorce)

§  the need for wills

§  resolution of conflicts that may arise during or after the pregnancy

 INTERNATIONAL SURROGACY

Many intending parents would like to engage in the surrogacy process outside of Canada. This is very common and Citizenship and Immigration Canada provides different avenues on bringing the child back to Canada.

The first step is ensuring the intending parents are either Canadian citizens or permanent residents of Canada. The second step is determining if the child has a genetic link to the intending parents or not. As discussed above this can be performed via the gestational method.

For immigration purposes, The Uniform Child Status Act 2010 defines assisted reproduction as a method of conceiving other than by sexual intercourse. The Uniform Child Status Act further defines a surrogate as a person who gives birth to a child as a result of assisted reproduction if, at the time of the child’s conception, she intended to relinquish that child to

1. The person whose human reproductive material was used in the assisted reproduction or whose human reproductive material was used to create the embryo used in the assisted reproduction, or
2. The person referred to in a) and the person married to or in a common-law partnership with that person.

IMMIGRATION OPTIONS

A common misconception about international surrogacy is that it is not possible to bring the child back to Canada. This is not true. There are three approaches that allow for a child, without a genetic link to immigrate to Canada.

1.       Adoption

When the child is born, the intending parents can adopt the child and sponsor the child to Canada. In countries where adoption is not available because the intending parents are known as the legal parents at the time of birth, the intending parents shall submit a written confirmation from that country or an expertise visa office explaining why.

2.       Discretionary Immigration Processing Option

After the child is born, the intending parents can apply for a Temporary Resident Visa for the child and once that is granted, they can apply for a Humanitarian and Compassionate Application on behalf of the child to obtain permanent residence in Canada. This will enable the child to than apply for Citizenship under subsection 5(4) Citizenship Act.

3.       Apply for Citizenship

(a) Under subsection 5(4) Citizenship Act, the intending parents can apply, on behalf of the child, for citizenship. This application is asking for the discretion of Citizenship and Immigration Canada to grant citizenship on a case-by-case basis.

(b) Genetic link to the parents
               
                Where there is genetic link, parents can apply for Canadian citizenship for their child by descent.

HOW WE CAN HELP

At A. Princewill Law Firm, we are the immigration experts that can successfully advise you in which options are available for you and your child. International surrogacy is complicated and retaining a lawyer will provide you with the specific legal information you need. In addition, we know how Citizenship and Immigration access their application and can advise you on what documents to provide to create a strong case. We will be there for you every step of the way, before the birth of the child and even after.

Contact us today to book a consultation to discuss how we can help you.  

Family Class Sponsorship

Family Class Immigration allows for families to be reunited and live together in Canada as permanent residents which can lead to citizenship. Family reunification is one of the main objectives of Canada’s Immigration system. Citizenship and Immigration Canada (CIC) views each application with due diligence and high priority is given to family class applications.

There are many different avenues available under the Family Class Sponsorship category. They include:

- Parent and Grandparent Sponsorship
- Parent/ Grandparent Super Visa
- Spouse/ Common Law Partner Sponsorship (for more information on spouse/common law partner    sponsorship, click here)
- Dependent children
- Other family members (For more information on sponsoring other family members, click here)

Sponsor Eligibility

• Must be a Canadian Citizen or Permanent Resident
• Must be at least 18 years old
• Be able to provide basic needs for family member(s) (i.e. Provide food, shelter, clothing etc)
• Meet or exceed the minimum necessary income required to sponsor
• Must be prepared to financially provide for sponsored family member(s) for at least three years should they receive permanent residence (and show proof of financial means)
• Must not have sponsored anyone else, in the past, who has requested financial assistance from the government
• Sponsor cannot be bankrupt, in prison, charged with any serious offence or under a removal order.

Documents Required for Family Class Sponsorship

Documents are a crucial element of the application package. You must be prepared to provide up-to-date documents to meet the sponsor eligibility criteria and to attest to your relationship.

Documents for Parent/ Grandparent Sponsorship

In addition to the Citizenship and Immigration application form package, you must also include:

• Canadian Citizens: Copy of your passport or birth certificate
• Permanent Residents: permanent resident or submit a Confirmation of Permanent Residence or Record of Landing
• Copy of marriage certificate
• Identification of a co-signer if applicable
• If previously married or in a common-law relationship provide:
• Proof of separation, divorce or annulment
• Death certificate, if applicable
• Declaration of severance, if applicable

• Option C printout from your most recent Notice of Assessment
•  Proof of employment (original employment letter from employer stating duration, hours, pay/salary)
• Proof of income for the last 12 months (i.e. pay stubs)
• Any other financial income (i.e. Investments, pension, rental income, special benefits etc)
• Medical Condition Statement if you have legally adopted the dependent child(s)

Sponsored Parent/ Grandparent Documents

• Identity and civil status documents
• Copy of birth certificate, national identity card, marriage certificate, divorce/separation from previous spouse (if applicable), declaration of severance (if applicable), annulment or death certificate or previous partner (if applicable), photocopy of status documents of any close Canadian relatives
• Children information (dependent children must be 19 or younger)
• Adoption papers (if applicable), proof of custody of children
• Travel documents
• Copy of passport(s) and travel documents, children must have their own passport, if you live in a country different from your nationality provide a copy of your visa
• Proof of relationship to sponsor
• Sponsor birth certificate
• Parent/ Grandparent birth certificate
• Proof of medical examination
• CIC provides a list of medical panels in your country to have an upfront medical examination performed
• Photographs of the spouse/partner and dependents according to the specified photograph guide

Parent/ Grandparent Super Visa

The Super Visa Program allows a parent/ grandparent to be a long-term visitor of Canada. This visa can enable a successful applicant to receive a Super Visa for up to 10 years with multiple entry. This is valid for 2 years at a time with renewal.

To be eligible to apply a parent/ grandparent shall meet the following requirements.

• -          Sponsor must meet the minimum income requirements
• -          Applicant must purchase 1 full year of health insurance
• -          Applicant must complete an immigration medical examination and provide results to CIC
• -          The Sponsor must provide written commitment of financial support to CIC
• -          If applicable, some applicants may require a Temporary Resident Visa in addition to their Super Visa.

Sponsored Dependent Child Documents

• Identity and civil status documents
• Copy of birth certificate, national identity card, marriage certificate, divorce/separation from previous spouse (if applicable), declaration of severance (if applicable), annulment or death certificate or previous partner (if applicable), photocopy of status documents of any close Canadian relatives
• Children information (dependent children must be 19 or younger)
• Birth certificate, Adoption papers (if applicable), proof of custody of children
• Travel documents
• Copy of passport(s) and travel documents, children must have their own passport, if you live in a country different from your nationality provide a copy of your visa
• Proof of relationship to sponsor
• Sponsor birth certificate
• Parent/ Grandparent birth certificate
• Proof of medical examination, if applicable.
• CIC provides a list of medical panels in your country to have an upfront medical examination performed
• Photographs of the spouse/partner and dependents according to the specified photograph guide

Sponsor other family members

You may be able to sponsor other family members but you must meet the sponsorship requirements.

Under this category you can sponsor brothers, sisters, nephews, nieces, or grandchildren who are orphaned, are under 18 and do not have a spouse or common-law partner and their relatives who will accompany them (e.g. Spouse, partner, children). You are able to sponsor one relative of any age or relation only if you do not have any other relatives that you could sponsor under the family class category and you do not have a relative that is a Canadian citizen or permanent resident of Canada.

Any siblings or adult children over the age of 18 cannot be sponsored by you because they are considered financially independent. However, as a relative, you can provide them with extra points under a skilled worker category should they wish to immigrate to Canada.

Common Mistakes

Family Class Sponsorship require lots of information, documents and forms. It is easy to make a mistake and delay your application process by many months or even years.

One of the biggest mistakes that is commonly made is the type of application a sponsor chooses to pursue. When sponsoring a parent/ grandparent, you must choose whether you would like to apply for permanent residence or a super visa.

It is imperative to know whether or not the application is strong with everything in order or if the application will raise issues and concerns in some areas.

Another common mistake is providing Citizenship and Immigration Canada with out-of-date documents. This will automatically delay and sometimes even lead to your application being denied. Most documents only have a validity of 3-6 months. Furthermore, sponsorship forms are constantly being updated, should you submit an application with an old form it will be returned and your process will be delayed.

Another mistake commonly made is not providing proper evidence and proof to attest to stated information. This is a crucial step because Citizenship and Immigration Canada expect every fact that is disclosed to be backed up by tangible evidence. Collecting proof can take a while and sometimes it is hard to obtain but it is imperative to send as much proof as you can with your application to avoid it being delayed or refused. On the forms, the sponsor and applicant must disclose everything that is asked for and not try to withhold information because it can bar them from sponsoring or being sponsored. This includes any information about siblings, children, work places, countries lived it etc.

Another common mistake is sponsoring an adopted child who is not legally adopted in their country of residence. Should this occur, CIC will not regard the relationship as valid. It is important to know who can and cannot be sponsored.

These are only a few of the many mistakes that can be made while applying for Family Class Sponsorship. Be sure to double check everything.

How we can help

At A. Princewill Law Firm we understand the importance of being with your family members and would like to help you achieve it in an expeditious and accurate manner. With our many years of experience we know how to strengthen your application and what Citizenship and Immigration Canada are looking for. We can effectively advise and assist you with your forms and documents. We also monitor your application even after it is submitted. You will dramatically notice a difference when trying to apply on your own and applying with our services.

Let us help you determine your eligibility by filling out our free online assessment. One of our skilled staff members will be able to assess and advise you on your situation. 

Humanitarian and Compassionate Applications

What are Humanitarian and Compassionate Applications?

A Humanitarian and Compassionate Application (H&C) allows for an applicant to stay in Canada on humanitarian and compassionate grounds. It is used in exceptional cases. It enables the applicant to apply for their permanent residence on the grounds of H&C and is used for those individuals who do not meet the requirements under any of the other permanent residence categories. H&C application is available also to convention refugees and persons in risk of persecution.  

Getting Started

Before an individual begins an H&C application, there are a number of factors to understand first:

-          Unless waiting for a decision on a Pre-Removal Risk Assessment Application, an H&C application does not prevent deportation.

-          H&C decisions are determined on a case-by-case basis.

-          There must be sufficient and relevant proof pertaining to the H&C grounds.

      There is a government processing fee of $550 per adult and $150 per child.

How to build a strong humanitarian and compassionate application

A strong application begins with the right reasons for applying. An H&C application is usually made as a last resort and the applicant must show/prove the immediate need to stay in Canada. There is an endless list of reasons to apply under an H&C application. The two most common ones are used by refugee applicants and they are hardship and risk.

Hardship includes a situation where an applicant is or will face serious problem and suffering should he or she be forced to move back to their home country. This can include reasons such as no government in charge, not recognized as a citizen in your home country anymore, medical hardship, need an exemption from one or more requirements of the Immigration and Refugee Protection Act (IRPA) or Regulations in order to apply for permanent residence within Canada, belief you would endure unusual/undeserved hardship if you are not granted the exemption, etc. 

Medical hardship is not always a reason to apply under H&C grounds. A reason to use medical hardship is if you or a family member risk death by returning to your home country due to poor or no medical treatment. 

To prove hardship an applicant must display that they are well-established in Canada. As each case is different, it is important to provide the best evidence displaying your circumstances. Proving your hardship and establishment in Canada is dependent on factors that you present to Citizenship and Immigration Canada (CIC). 

For example:

-          How long the applicant has lived in Canada.

-          Collecting welfare, if applicable.

-          Ability to understand and speak English/ French and taking action to improve in them.

-          Improve/ further education while in Canada

-          Any relatives in Canada and if you are in contact with them

-          Any Canadian-born children.

-          How much family you have in your home country and if you are in contact with them.

-          Any jobs in Canada/ keeping up with tax payments.

-          Current employment.

-          Any assets abroad.

-          References from people in Canada. (ie. Teachers, friends, work, volunteer etc.)

-          Community involvement.

-          Specific hardship faced if returned to home country. (ie. Being a woman and having limited rights)

This list is non-exhaustive and can continue on for whatever reasons an applicant has that would make him/her face hardship should they return to their home country.

Applying under H&C ground because of risk means that you cannot return to your home country because of at least one of the following:

-          Persecution

-          Torture

-          Risk to life

-          Risk of cruel or unusual punishment

Should the applicant have a PRRA application, they do not risk deportation until a decision is made on that case. PRRA officers only consider new evidence should you already have had a refugee hearing. However, they can sometimes consider important evidence pivotal to your case that was not available during a refugee hearing (eg. Medical evidence, proof of torture etc). If you are in Canada and have not yet made a refugee claim, do so immediately. You must display that you are in immediate danger of persecution and not delay on this matter.

Children

A Canadian immigration officer is bound to consider the best interests of a child. Should you have children involved in your case ensure to display:

-          Any ties the child has to Canada

-          If the child was born in Canada

-          Is the child attending school in Canada?

-          Have they ever been to your home country?

Common Mistakes

Many applications are refused for minuscule mistakes or inadequate information. Ensure that you submit a strong application and avoid making the following common mistakes.

• -          The applicant’s only or main ties to Canada is their job and paid taxes.
• -          The applicant has been on welfare for a long period of time.
• -          Criminal activity.
• -          Not personally affected by persecution or human rights in home country.
• -          Not disclosing ALL relevant information (even if it is weak).
• -          Misrepresenting yourself/situation.
• -          Basing claim on poor educational facilities and poor employment opportunities.
• -          Not filing application in time.
• -          Have a pending refugee claim.

How we can help

If any of the following mistakes seem like something that would apply to you it may be best to not consider applying or hiring a lawyer to represent you. There are many advantages in hiring a lawyer and at A. Princewill Law Firm, we know how to assist you in turning a weak H&C application into a strong one. 

Let our immigration lawyers and dedicated team of staff help you overcome a weak application and put together a strong application that addresses all your hardships/risks. We know what CIC is looking for and we will effectively analyze your situation to point out any weaknesses. 

Book a consultation today to get started!