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x dont let son go for medical test please help

Printed From: Canada Immigration and Visa Discussion Forum
Category: Canada Immigration Topics
Forum Name: Family Class Sponsorship
Forum Description: A review of current sponsorship programs (permanent residence) promoting the reunion in Canada of close relatives from abroad.
URL: https://secure.immigration.ca/forum/forum_posts.asp?TID=2296
Printed Date: 03 Jul 2024 at 12:50am


Topic: x dont let son go for medical test please help
Posted By: peter
Subject: x dont let son go for medical test please help
Date Posted: 27 Apr 2010 at 9:48am

Hello can someone help me out am having inland application which i have declared my son. the visa office as send my ex wife my son medical form since 2007 in which she is refusing to take my son for the medical test now the visa office as send another latter to her that they gave her 20 day to do it but she is still dont ready to comply with the cic instruction,am in canada but i cant go out to do it ,if we didnt get this done my application will not be delt with what can i do can i take my son out of my application for now or what can i do can someone help please


Replies:
Posted By: Harmonia
Date Posted: 27 Apr 2010 at 9:54am
Taking your son out of the application would mean that you would never be able to sponsor him into Canada.

Posted By: peter
Date Posted: 27 Apr 2010 at 10:01am
thanks  Harmonia how do you think i can go about this

Posted By: Harmonia
Date Posted: 27 Apr 2010 at 10:26am
Peter - I think there's another post buried in this forum that relates to taking someone out of an application (someone wanted to remove their father from the app, as they were worried he would not pass the medical). 
 
Check out the OP manuals on the CIC website for more info...  If I have time, I will look around for you.

Posted By: Harmonia
Date Posted: 27 Apr 2010 at 10:38am
OK - here's what I found...
 
Refer to OP for more info
http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf - http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf
 
Specifically sections 5.10, 5.11, and 5.12
 
It seems that if you are unable to obtain the information (i.e. medical) of your son due to your wife's reluctance - then the I/O should explain that you will not be able to sponsor him in.  It will not invalidate your application.  BUT - you have to prove that you have done everything possible to get this info:
 

Officers should be open to the possibility that a client may not be able to make a family member available for examination. If an applicant has done everything in their power to have their family member examined but has failed to do so, and the officer is satisfied that they are aware of the consequences of this (i.e., no future sponsorship possible), then a refusal of their application for non-compliance would not be appropriate.

My questions:

Did you indicate on your application that your son is a NON-ACCOMPANYING family member?  Is your wife aware of the implications of her not doign the medical (i.e. you are not trying to take your son, you are just trying provide him with more options in the future).?
 
Just trying to figure out if she's aware of the consequences.   I know that ex-spouses can be very difficult to deal with - and often there is nothing you can do, even if you are acting in the best interests of the child.
 
From what I read (and senior members please correct me if I am misinterpreting) you don't need to withdraw him from the application - but you will need to provide proof and a reason why you are unable to obtain his medical.  
 
Anyone out there care to contribute some more info?

Posted By: redeagle
Date Posted: 27 Apr 2010 at 11:11am
There is something in one of the OP guides, I was thinking about it the other day and I cant remember where it is. But there is an exception to the rule. It is based on the fact that an ex may indeed refuse to have a child examined even though the applicant has done everything possible to enable examination.

In this situation, the IO may make a decision to wave the examination.

Now I know its in there, but i cant remember where or which of the OP guides. I dont have time to look for it right now either, but there is something to fill your time.

-------------
"Will this matter a year from now?"
Probably, this is gonna be a one hell of a long journey.

Posted By: peter
Date Posted: 27 Apr 2010 at 11:12am

hello Harmonia i do said is  NON-ACCOMPANYING family member  in my application

Posted By: Harmonia
Date Posted: 27 Apr 2010 at 11:56am
Peter...
If you are able to have a rational discussion with your ex, I would suggest that you try to bring her around to seeing that what you are trying to do is in the best interests of your son.
 
Your son only stands to gain by having the option to gain PR status in Canada.  I would also try really hard to let her know that just because he's on your application as a non-accompanying family member - this does not mean that he will be issued a visa, and subsequently have to go to Canada.  All this means is that, at a later date, should you want to sponsor him in - you will have the option.
 
Without him on your application, you will likely NEVER be able to sponsor him in to the country.
 
There could be many reasons you (and your ex) would want to provide your son with the opportunity:  perhaps Canada can provide better education, more job opportunities, better standard of living? 
 
Why anyone would want to deny their child an opportunity like this is beyond me.  Of course, there is always the bitter spite of ex-spouses -- but you should try to convince her to see beyond the failure of your relationship, and to focus on the opportunities that could be made available for your son.
 
I wish you the best of luck...

Posted By: peter
Date Posted: 27 Apr 2010 at 2:25pm
hello Harmonia thanks again  have try everything but she is not ready to comply  we  have divorce over 9 years ago going to be 10 years this years  i realy dont know what she whant

Posted By: peter
Date Posted: 28 Apr 2010 at 8:16am
hi

Posted By: Harmonia
Date Posted: 28 Apr 2010 at 1:42pm

Peter - in this case you might be wise to document your attempts to get the medical for your son.  Removing him from the application could start you back at the beginnign of the process (though I am not certain).  Leaving him on, without the medical - should make the Immigration Officer give you the option to explain why there is no medical for him -- which is when you explain that you have tried unsuccessfully (and show your proof, if you have any).  At this point the I/O might tell you that if you proceed with the application you will have to understand and be in agreement with the fact that your son will NEVER be eligible for sponsorhip into Canada (by you as the sponsor).

Did you read the Operations manuals?

Posted By: RobsLuv
Date Posted: 28 Apr 2010 at 2:39pm
If your son is not medically examined as part of this application - whether he's designated non-accompanying now or not - you will never be able to sponsor him to Canada.  This means that if something happened to your ex-wife, your son would be orphaned and you would either have to go back to your country to parent him, or leave him to someone else.  I don't have to tell you that your ex-wife is being selfish, but in her defence, she probably does not understand the requirement and thinks that you're only trying to find a way to get your son and take him away from her.  It might help if she understood that even if he is included and examined, you cannot bring him to Canada without her written consent.  They would NEVER let him over the border into the country without her authorization and CIC states very clearly in their manuals that officers absolutely will not issue a permanent resident visa to a minor who is in the custody of the other parent. 

From OP2 Processing Manual, Sections 5.10 & 5.11:
Quote 5.10. Non-accompanying family members
Applicants must declare all family members when applying for a visa and must again declare all
family members, whether accompanying or not, prior to obtaining permanent resident
status. Permanent residents who did not declare all their family members on their application are
reportable under A44(1) [see also “Sponsor who may be subject to an A44(1) report” (section 10.5
below) and “Misrepresentation” (section 5.22 below)]. In addition, all family members, whether
accompanying or not, must be examined, unless the appropriate officer determines that they are
not required by the Act or the former Act to examine the family member [R117(10)]. Family
members who were not declared and examined are excluded from the family class and may not
be sponsored at a later date as per R117(9)(d) unless R117(10) applies.
Non-accompanying family members must undergo medical examinations.
5.11  Officers will not issue a permanent resident visa to separated spouses,
common-law partners or children in the custody of someone else, even if they are examined.
This is because separated spouses and partners are not members of the family class as per R117(9)(c)
and because children in the custody of someone else are non-accompanying family members.

If these family members are genuinely unavailable or unwilling to be examined, the consequences
of not having them examined should be clearly explained to the applicant and reflected in the
CAIPS notes. Officers may wish to have applicants sign a statutory declaration indicating they
understand the consequences of failing to have the family member examined.

5.12. Exclusion from membership in the family class – R117(9)(d), R117(10) and R117(11) (former
OM OP 03-19)
Under both the previous legislation and under IRPA, both the applicant and the applicant's family
members, whether accompanying or not, must meet the requirements of the legislation. There are
no exceptions to the requirement that all family members must be declared. With few exceptions,
this also means that all family members must be examined as part of the process for achieving
permanent residence.  Officers should be open to the possibility that a client may not be able to
make a family member available for examination. If an applicant has
done everything in their power to have their family member examined but has failed to do so, and
the officer is satisfied that they are aware of the consequences of this (i.e., no future sponsorship
possible), then a refusal of their application for non-compliance would not be appropriate.
Officers must decide on a case-by-case basis using common sense and good judgment whether
to proceed with an application even if all family members have not been examined. Some
scenarios where this may likely occur include where an ex-spouse refuses to allow a child to be
examined or an overage dependant refuses to be examined. Proceeding in this way should be a
last resort and only after the officer is convinced that the applicant cannot make the family
member available for examination. The applicant themselves cannot choose not to have a family
member examined.
The intent of R117(9)(d), R117(10) and R117(11) is to ensure that persons whom the sponsor
made a conscious decision to exclude (either by not declaring and/or not having the persons
examined) from their own application for permanent residence cannot later benefit by being
sponsored by this same person as a member of the family class.


In addition, if CIC is contacting her about this - rather than you - they can be quite overbearing in their demands and that might have put her off.  Why would she want to take the time and spend the money to take the child to a special doctor to have an examination just to facilitate your immigration to Canada?  It is asking a lot . . . so try to understand that part of the equation, too.  Is there someone else there who can take your son to this appointment.  If you schedule it, and pay for it, do you have a parent or sibling who has access to your son who could take him to the Dr.  The key, I think, is to try to find out what your ex-wife is objecting to.  I know it's hard to have the conversations with an ex (I have an ex-husband myself and it's very difficult to discuss things, even about our children, because we seldom agree), but this is important.  Another thing: how old is your son?  Is he old enough to make this decision for himself?  If so, he should be aware of what it all means and start making his wishes known.  I have no doubt my ex would have given me a really hard time about this very same issue if it had not been for the fact that our daughter was 10 years old at the time and was very clear about the fact that she wanted to live in Canada with me.  He valued his relationship with her enough that he honoured her decision. 

If none of this turns things around with her - and never being able to bring your son to Canada is not acceptable to you - then you should get the courts in your country involved in this case and they can order her to have him examined because it's in his best interest to be able to be reunited with you if something happens to her.  Where you're at a disadvantage is that you're in Canada and, with an inland application in process, you're really not in a position to go home to fight this out.  I will say that CIC does not like to allow minor children to be excluded from applications because of the fact that it leaves a child without a parent if something happens to the custodial parent.  They are not likely, however, to "waive" the requirement for examination and still allow him to be sponsored at a later date.  If they allow the application to proceed without him being examined, you will have to sign a declaration saying you understand you are forever barred from sponsoring him.  None of us can tell you what to do but you do have the option to withdraw the inland application, go home and straighten this out with your ex through the courts, and then file a new outland PR application that can include your son (still as a non-accompanying dependent) when you're able to get him medically examined.  

-------------
3/2007-applied
1/2008-Refused
12/2008-ADR failed
1/2010-Appeal allowed
4/2010-In Process(Again)
5/2010-request FBI/meds
8/2010-FBI recd
11/30/10-APPROVED!
1/31/11-LANDED!

Posted By: Harmonia
Date Posted: 28 Apr 2010 at 3:54pm
RobsLuv - you made a good point:
 
"This means that if something happened to your ex-wife, your son would be orphaned and you would either have to go back to your country to parent him, or leave him to someone else. "
 
Hopefully the OP will be able to start a rational discussion with his ex... but I've seen it happen all too often that such conversations are sometimes impossible.
 

Posted By: audball
Date Posted: 28 Apr 2010 at 4:36pm
You could TRY to show her a photocopy of the application showing that he's non-accompanying to show that you aren't trying to take him. Just leave good options for HIS future.

Your wife sounds like she's being unreasonable. I'm also assuming you have tried to pay for the medical exam, so she can't refuse for monetary reasons

Posted By: peter
Date Posted: 29 Apr 2010 at 8:53am
thanks redeagle  for the information


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