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. 

Canadian Citizenship

Eligibility for Canadian Citizenship

There are six (6) criteria that an applicant must meet to be eligible for Canadian Citizenship.

1. 1.       Age

An applicant must be at least 18 years old to apply for Canadian citizenship. If the applicant is under 18, a parent/ legal guardian can apply on their behalf, provided the child is a permanent resident and at least one of the parents is a Canadian citizen or is applying for citizenship at the same time.

1. 2.       Permanent Resident Status

The applicant must be a permanent resident in Canada and must not be under review for immigration issues or under a removal order.

1. 3.       Time you have lived in Canada

An applicant for Canadian citizenship must have resided in Canada for a total of three (3) years in the last four (4) years. This that a person applying to become a citizen of Canada must have lived in Canada for a minimum of 1095 days in the last four years.

1. 4.       Language Skills

As Canada has two (2) official languages, an applicant must show they know at least one (1) of the languages in adequate ability and provide documentation to prove this. In addition, an immigration officer will be testing the applicant’s ability to speak either English or French during the interview.

1. 5.       Criminal History

Should an applicant have any indictable criminal history in the last three (3) years, be under review for immigration fraud, under a removal order, being investigated, or has had citizenship revoked, then they are not eligible to apply for Canadian citizen.

1. 6.       Canadian Citizenship Test

An applicant between the ages of 18-54 must show their knowledge of Canada and the privileges and responsibilities of acquiring Citizenship. This is displayed through a written test on citizenship. Citizenship and Immigration Canada will provide you with a study guide which can also be assessed on line by clicking on Discover Canada.  

Processing Time for Canadian Citizenship Applications

The current processing time for complete citizenship applications is 24 months. This time can increase if your application raises any questions or concerns that Citizenship and Immigration requires clarification on.

Documentation

In addition to the Canadian Citizenship Application form and payment of for processing fees. See below for supporting documentation required for your application package.

-          Copy of your Record of Landing (IMM 1000) or Confirmation of Permanent Residence (IMM 5292 or IMM 5688)

-          Copy of Permanent Resident Card (PRC), if you have one

-          Original results of an official language test taken (keep in mind that CIC will only accept results of certain third-party institutions that offer these tests. For example, Canadian English Language Proficiency Index Program General Test)

-          Proof of completion of either French or English secondary and post-secondary education (in Canada or abroad). This can be either a diploma, degree, transcript.

-          Copy of passport

-          Official Education records if you attended school within the last four years of applying

-          Two (2) pieces of personal identification (For example, drivers licence, Canadian health card, copy of passport etc.)

-          Two (2) identical citizenship photographs, see specifications on CIC website

-          Any and all documents or proof that display you have settled in Canada and have established ties to the country. (For example, copy of gym membership, copy of employment contract, any membership cards, property ownership etc.)

The information provided above can seem overwhelming. You may not think you are even eligible because you have been working outside of the country or you travel a lot. It is easy to make a mistake and delay or bar yourself from applying for citizenship but many people who believe they are not eligible, in fact, are!

Let us help you! At A. Princewill Law Firm, we know how important it is to get your Canadian citizenship and that it sometimes can be a frustrating process. We know the ins and outs of the application process and can help you monitor your application once you submit it as well. We will assist you in obtaining documentation that will strengthen your application for you and your family.