Custodianship of f Min inors: Legalities and Responsibilities By Eva Oso sorio io, RCIC IC May 7, , 2018
AGENDA 1. Min 1. inors Stu Studying in in Can anada 2. 2. Custodia ianship ip under th the Im Immigration an and Refugee Protection Act ct 3. 3. Custodia ianship ip vs. s. Gu Guardianship ip 4. 4. Man andatory vs. s. Di Discretionary Custodia ianship ip 5. Roles an 5. and Responsib ibili ilities s of of th the Custodian 6. 6. How to o lim limit it pot otential l lia liabili ility for th the cu custodia ian while ile protecting th the best in interest of of th the ch child ild Global Proficio Inc. Immigration to Canada
Minors Studying in Canada Background • In general, foreign nationals need a study permit to study in Canada (there are some exceptions) • In most cases, an application for a study permit should be made before coming to Canada • A minor child applying to study in Canada must meet all admissibility requirements under the Immigration and Refugee Protection Act, as applicable ( e.g. financial, criminal, medical) Global Proficio Inc. Immigration to Canada
Minors Studying in Canada In order to meet admissibility requirements under IRPA Section A.39, an officer must be satisfied that adequate arrangements are in place for the care and support of the child while in Canada Immigration and Refugee Protection Act (IRPA) Division 4 - Inadmissibility Financial reasons 39. A foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themselves or any other person who is dependent on them, and have not satisfied an officer that adequate arrangements for care and support, other than those that involve social assistance, have been made. A custodianship agreement must then be in place before the study permit application can be approved by IRCC Global Proficio Inc. Immigration to Canada
Custodianship vs. Guardianship The term custodianship is more appropriate for the purposes of a study permit application than the legal term guardianship as guardianship involves an individual being legally appointed to manage the affairs of an individual as opposed to being deemed to have custody of the student For immigration purposes, a custodian must be : ❑ a Canadian citizen or a Permanent Resident of Canada ❑ over 19 years of age Global Proficio Inc. Immigration to Canada
Mandatory vs. Discretionary Custodianship Custodianship arrangements are not required when the minor child is accompanied by at least one parent or a guardian Mandatory custodianship when children Discretionary custodianship when are under 17 years of age children are 17 to 18 or 19 years of age A legal arrangement is made to give the Immigration officers have instructions to assess custodian in Canada the permission to act in the custodianship requirement on a case-by- case basis. Officers may request additional place of a parent or legal guardian. A Custodianship Declaration must be signed by documentation, an interview or a the Custodian and the parents/ guardians and custodianship declaration the signatures must be certified by a notary public or Commissioner of Oaths The objective is to be satisfied with respect to whether an applicant can provide care and support to themselves while in Canada. Global Proficio Inc. Immigration to Canada
Mandatory vs. Discretionary Custodianship Factors to be considered when assessing discretionary custodianship ❑ Level of study – (secondary school students normally require a custodian) ❑ Level of independence ❑ Financial capacity (applicant’s financial self -sufficiency outside of parents or guardians) ❑ Travel history ❑ Accessibility of the parent or guardian ❑ Risk environment – (any indicators of irregular child migration and potential for exploitation or trafficking) Global Proficio Inc. Immigration to Canada
Mandatory vs. Discretionary Custodianship Updated Study Permit Application Forms and the Discretionary Provision IMM 5709 (02- 2018), …Application to remain in Canada as a Student Under ‘DETAILS OF INTENDED STUDY IN CANADA’ If you are under the age of majority of the province/territory where you intend to study, you must fill out the Custodianship Declaration (IMM5646) form IMM 1294 (02-2018), Application for Study Made Outside Canada Under ‘DETAILS OF INTENDED STUDY IN CANADA’ If you are less than 17 years of age, you must fill out the Custodianship Declaration (IMM5646) form Global Proficio Inc. Immigration to Canada
Custodianship: Responsibilities and Limitations Custodian Declaration The application of the official seal below confirms that the notary public has received evidence that the custodian is a Canadian citizen or a permanent resident, is over 19 years of age, and currently resides at the home address stated above. I, _______________________ (name of custodian) hereby solemnly declare that I will undertake the full custodianship for the said student, ________________(name of student) during his/her stay in Canada, while under the age of majority in the province in which he/she resides. As a custodian, I have made the necessary arrangements for the care and support of the said student in place of the parents as appropriate. By signing this custodianship agreement, I certify that I reside within a reasonable distance of the student’s intended residence and school and will be able to fulfil my obligations as a custodian in the event of an emergency Global Proficio Inc. Immigration to Canada
Custodianship: Responsibilities and Limitations Parent/Guardian’s Declaration I/We, ______________________ and ______________ (names of parents/guardians), the parents/guardians of the said student, _____________________(name of student), hereby grant full custodianship to _______________________(name of custodian) during the student’s stay in Canada, while he/she is under the age of majority in the province in which he/she resides. I have made the necessary arrangements for the care and support of the said student such that the custodian should act in place of me/us, the parents. By signing this custodian agreement, I/We affirm that I am/we are satisfied the above appointed custodian resides within a reasonable distance of my/our child’s intended residence and school and will be able to fulfil his/her obligations as a custodian in the event of an emergency Global Proficio Inc. Immigration to Canada
Custodianship: Responsibilities and Limitations Summary of responsibilities ✓ Undertake full custodianship for the student during his/her stay in Canada and while under the age of majority in the province of residence ✓ Make necessary arrangements for care and support of the student in place of the parents as appropriate ✓ The custodian will act in place of a parent in case of emergency ✓ Custodianship only needs to be in place while the student is physically present in Canada “during his/her stay in Canada” ✓ The custodian must reside within a reasonable distance to the minor applicant’s intended residence and school. ✓ Custodianship arrangements are to be in place to meet a financial admissibility. ✓ Custodianship does not have an expiry date. The expiry date is defined as “during the student’s stay in Canada”. Officers will normally request a new custodianship to be produced approximately every 2 years Global Proficio Inc. Immigration to Canada
How to Limit Potential Liability The Immigration and Refugee Protection Act and Regulations only refer to custodianship in regards to the financial admissibility requirement The IRCC Custodianship Declaration provides a brief, general description of the roles and responsibilities of a Custodian The IRCC Custodianship Declaration states that the Custodian will act in place of a parent in case of an emergency. This could be to make a life or death decision in case the parents can’t be reached or there is no sufficient time to reach them It is advisable to establish program-specific custodianship guidelines with appropriate legal assistance to reduce potential liability for the custodian while protecting the best interest of the child Global Proficio Inc. Immigration to Canada
How to Limit Potential Liability Custodianship Program- Specific Guidelines should be in place and they should be clearly communicated to the parents/guardians of the minor child Educational institutions and organizations providing custodianship services across Canada tend to define expectations and responsibilities. Some common areas covered are: ❑ Be a liaison between the school and the parent ❑ Take an active role in supporting the student ❑ Provide ‘parental’ advice to student regarding school programs and activities ❑ Signing parental waivers for school-related functions and activities ❑ Assist student with renewal details, e.g. passport, health insurance ❑ Make alternate arrangements when the Custodian is planning to be away from the student for a length of time ❑ Make decisions in case of a medical emergency Global Proficio Inc. Immigration to Canada
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