Written by: Sanaa Mahmood
When you submit an application to immigrate to Canada either permanently or temporarily, you may choose to include your child as a dependent in that application, provided the child meets the current definition of a dependent child, as per Canadian Immigration Laws and Regulations.
The current definition of a dependent child, on January 1, 2020, according to the Immigration and Refugee Protection Regulations, SOR/2002-227 is:
dependent child, in respect of a parent, means a child who
(a) has one of the following relationships with the parent, namely,
(i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or
(ii) is the adopted child of the parent; and
(b) is in one of the following situations of dependency, namely
(i) is less than 22 years of age and is not a spouse or common-law partner, or
(ii) is 22 years of age or older and has depended substantially on the financial support of the parent since before attaining the age of 22 years and is unable to be financially self-supporting due to a physical or mental condition.
Bear in mind that the definition of dependent child may change, and it is therefore wise to check with a licensed immigration professional regarding the current definition, and whether your child qualifies.
Let’s break down the definition of a dependent child, as it stands on January 1, 2020.
You will note there are two parts, part (a) and part (b) to the definition of a dependent child. BOTH parts must be satisfied, in order for you to be able to include your child as a dependent in your application. Let’s take a closer look at part (a), then part (b).
Part (a) of the Definition:
Part (a) requires that the child must be either your biological child, OR your adopted child. Note that if the child is your biological child, but was adopted by someone else, then the child will not be considered your dependent child for immigration purposes. There is one exception: If it was your spouse or common-law partner who adopted the child, then the child is still considered your dependent child for immigration purposes. However, if someone OTHER than your spouse or common-law partner adopted the child, then the child will not be considered your dependent.
With regard to an adopted child, applicants are required to satisfy the Officer assessing the application that the adoption created a genuine legal parent-child relationship, and was not entered into primarily for the purpose of acquiring any status or privilege under the Immigration and Refugee Protection Act. Evidence of an ongoing relationship may include proof of living together in one home, photographs, and/or proof of regular communication between the parent and child.
Part (b) of the Definition:
In addition to part (a), part (b) must be satisfied. There are two ways that part (b) can be satisfied. The first way is if the child is less than 22 years of age AND does not have a spouse or common-law partner.
If your child is turning 22 years of age very soon, then he or she may soon no longer qualify as a dependent child. In such a circumstance, it is advisable to act quickly to submit your application, if you wish to include your child as a dependent. For most applications, if you submit the application prior to your child turning 22 years of age, and it is received before your child’s birthday, then your child’s age becomes “locked-in”. This means that even if your child turns 22 while the application is processing, he or she will not be disqualified as a dependent child due to age.
It is important to note that there are different types of applications, and the above does not necessarily apply to every single application. Again, it is wise to check with a licensed immigration professional if you believe age may be an issue.
In addition, it is important to note that when an application is submitted, it is normally screened for completeness. If required forms or documents are missing, then the application may be returned to the sender. If this occurs, then the application will need to be updated and re-submitted. In such a circumstance, the date the first, incomplete application was received is NOT considered the relevant lock-in date for the purposes of calculating the age of any dependent children. Instead, if the application is returned as incomplete, then for processing purposes it is essentially the same as if the application had never been sent.
The takeaway message here is that if a dependent child is nearly 22 years of age, it becomes very important to ensure a complete application is submitted, so the application is not returned and the lock-in date is prior to the child’s 22 birthday.
In addition to the child being below the age of 22, the child is required not to be married or in a common-law partnership. In the immigration context, a common-law partnership means that a couple has lived together for at least one year in a conjugal relationship. Some countries do not recognize common-law partnerships, and applicants sometimes mistakenly believe this means that their child is not in a common-law partnership. However, regardless of whether or not the country of residence/citizenship recognizes common-law partnerships, if your child has established a common-law partnership according to Canadian immigration law, then he or she is disqualified from meeting part (b)(i) of the definition of dependent child.
The second way that part (b) of the definition of dependent child may be satisfied is:
- If your child is 22 years of age or older AND
- Your child has depended substantially on your financial support since before turning 22 years of age, AND
- Your child is unable to be financially self-supporting due to a physical or mental condition.
#1 above is simple enough to determine. With respect to #2, applicants are required to satisfy the Officer that since before 22 years of age, continuously up to the time the Officer is making the determination, the child depended substantially on the parent’s financial support. If there is a break, and the financial dependency was not continuous, the child is considered not to meet the definition.
With respect to #3, applicants are required to satisfy the Officer that at the time the Officer is making the determination, the child is unable to be financially self-supporting due to physical or mental condition. It is not necessary to show that the physical or mental condition existed continuously from before 22 years of age to the time the Officer is making the determination. This was clarified by Justice Gibson in Gilani v. Canada (Minister of Citizenship and Immigration), 2005 FC 1522. Again, while financial dependency must be continuous, it is not necessary to establish continuity with respect to the physical or mental condition preventing the child from being self-supporting.
There is a level of complexity in the definition of a dependent child. In order to establish that a child falls within the definition, financial, medical, or other documentation may be required.
This article is meant to clarify the definition and provide information to the public. This article should not, however, be considered legal advice. If you would like to meet with us to discuss this topic, or any other immigration-related topic, we would be pleased to assist you.
