Sponsoring a dependent child: what day the age locks in, and children who were non-accompanying and not examined

The definition of a dependent child has two layers, and both have to be met

Within the family class, a dependent child is a category the Regulations set out expressly. IRPR s.117(1):

117 (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
(a) the sponsor's spouse, common-law partner or conjugal partner;
(b) a dependent child of the sponsor;
(c) the sponsor's mother or father …

The difficulty is not in that sentence. It is in the definition of the term dependent child itself. IRPR s.2:

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.

The definition splits into two layers, (a) and (b). (a) is about the parent-child relationship, (b) about the situation of dependency, and one item within each layer has to be met.

(b) then splits into two branches. The first reads less than 22 years of age and is not a spouse or common-law partner. There are two conditions here, and the and in the middle is easy to read past: if the child is under 22 but is already married, or is already in a common-law partnership with someone, this branch does not hold. The age half is met, the status half is not, and the whole thing still does not hold.

In the relationship layer, adopted child and biological child stand side by side, and an adopted child falls within the definition just the same. But the Regulations have a whole separate set of provisions on adoption, in the later subsections of s.117, which this page does not go into.

The branch for 22 and over: all three conditions have to hold

(b)(ii) is the route left open for a child who has already turned 22, and its conditions are stricter than commonly assumed. The text strings three things into one sentence, and all three have to hold at once for the branch to apply:

1. is 22 years of age or older; 2. was already substantially dependent on the parent's financial support before turning 22, the text being has depended substantially on the financial support of the parent since before attaining the age of 22 years; 3. is unable to be financially self-supporting because of a physical or mental condition, the text being unable to be financially self-supporting due to a physical or mental condition.

A commonly heard version is that a child with a disability counts as a dependent child indefinitely. That version drops the middle condition. The provision asks for more than the present state: the dependency also has to have begun before the child turned 22 and to have continued through to now. Someone who had been working and supporting themselves all along, and whose physical condition only appeared in their mid-twenties, does not connect to the second condition on the timeline.

What day the age locks in depends on which class you are in

The usual default assumption is that age is counted as at the day the permanent residence application is made. s.25.1 of the Regulations actually splits this lock-in date across nine subsections, with (1) as the residual one:

25.1 (1) For the purposes of determining whether a child is a dependent child, the lock-in date for the age of a child of a person who is a member of any of the classes set out in these Regulations, other than in those cases referred to in subsections (2) to (9), and who makes an application under Division 5, 6 or 7 of Part 5 is the date on which the application is made.

That subsection states within itself other than in those cases referred to in subsections (2) to (9), which is a declaration up front that exceptions follow. Three of them bear most directly on economic immigration:

(4) … the lock-in date for the age of a child of a person who is a member of the provincial nominee class, who is nominated by the province and who makes an application under Division 6 of Part 5 is the date on which the application for nomination was made to the province.

(5) … the lock-in date for the age of a child of a person who is a member of the Atlantic immigration class … is the date on which the application for endorsement was made to the province.

(3) … the lock-in date for the age of a child of a person who is referred to in section 86, 90, 97 or 101, to whom a Certificat de sélection du Québec has been issued and who makes an application under Division 6 of Part 5 is the date on which the application for selection was made to Quebec.

The day named in the provincial nominee subsection is often a year or more earlier than the day the permanent residence application goes in. In between sits the province's own time to assess the nomination, and the federal step comes only after the nomination is in hand. Where a child's age sits close to 22, the stretch between those two days may be the dividing line.

This layer is favourable information for an applicant, but it cannot be used as a conclusion. Whether that class applies, what day the act named in the provision actually occurred, and how old the child was on that day are all case-by-case questions of fact, to be checked back against the actual filing record. The remaining subsections deal with particular Quebec situations and the refugee classes, which this page does not go into.

On how the provincial nomination step relates to the federal one, see how provincial nominee programs relate to Express Entry.

Children who were non-accompanying and were also not examined

This is the other end of it. If, when the sponsor went through their own permanent residence application, there was a child who did not accompany them and was never examined, the Regulations exclude that child from the family class outright. IRPR s.117(9):

(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if
…
(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

Two conditions stack up before it is triggered: the sponsor previously made a permanent residence application and became a permanent resident; and within that application, this person was a non-accompanying family member and was not examined.

This provision often only surfaces many years later.

There is a provision resting on the same principle on the spousal sponsorship side, see inland or outland spousal sponsorship. Switching to another route is not the same as getting around an exclusion.

The provision leaves an exit, and the exit has conditions of its own

s.117(9)(d) opens with subject to subsection (10), so this subsection has to be read together with the two that follow.

s.117(10):

(10) Subject to subsection (11), paragraph (9)(d) does not apply in respect of a foreign national referred to in that paragraph who was not examined because an officer determined that they were not required by the Act or the former Act, as applicable, to be examined.

What this subsection says is: where the person was not examined because an officer determined that under the law as it then stood they were not required to be examined, (9)(d) does not apply. It turns on that act of an officer determining that examination was not required, which is a different thing from nobody having raised the matter at the time.

s.117(11):

(11) Paragraph (9)(d) applies in respect of a foreign national referred to in subsection (10) if an officer determines that, at the time of the application referred to in that paragraph,
(a) the sponsor was informed that the foreign national could be examined and the sponsor was able to make the foreign national available for examination but did not do so or the foreign national did not appear for examination; or
(b) the foreign national was the sponsor's spouse, was living separate and apart from the sponsor and was not examined.

(11) takes back part of the exit that (10) opens. For someone already within (10), if an officer determines that the sponsor was informed at the time that this family member could be examined and the sponsor was able to make them available for examination but did not do so, or that the person did not appear for examination, (9)(d) applies all the same.

So this is neither something a supplementary document resolves, nor something with no room in it at all. Whether a person falls within (10), and whether (11) then pulls them back out, depends on what actually happened inside that earlier application: how the officer handled it at the time, whether any notice about examination was ever issued, and whether the sponsor was in a position to arrange it. These are facts from many years ago, and the record left from that time is what has to speak to them.

The three layers are tied together

There are also conditions the sponsor themselves has to meet, which are a separate set of requirements; see the official page. For processing times, use IRCC's processing times tool for the current period. On what routes remain after a refusal, see after a refusal.

Even once the age question is cleared, s.117(9)(d) is still ahead, and it looks at an old application from many years back. The three layers have to be worked through in order: first establish which branch of the s.2 definition the child falls in, then which subsection of s.25.1 applies and what that day actually is, and last go back and check whether the sponsor's permanent residence application from that time raises a (9)(d) problem. Change the answer at any layer and every layer after it has to be worked out again.

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Common questions