Custodianship of f Min inors: Legalities and Responsibilities By - - PowerPoint PPT Presentation

Custodianship of f Min inors: Legalities and Responsibilities

By Eva Oso sorio io, RCIC IC May 7, , 2018

1.

• 1. Min

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.

• 5. Roles an

and Responsib ibili ilities s of

• f th

the Custodian 6.

• 6. How to
• lim

limit it pot

• tential

l lia liabili ility for th the cu custodia ian while ile protecting th the best in interest of

• f th

the ch child ild

AGENDA

Global Proficio Inc. Immigration to 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)

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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

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Minors Studying in Canada

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

• pposed 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

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Custodianship vs. Guardianship

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Mandatory vs. Discretionary Custodianship

Mandatory custodianship when children are under 17 years of age Discretionary custodianship when children are 17 to 18 or 19 years of age Immigration officers have instructions to assess the custodianship requirement on a case-by- case basis. Officers may request additional documentation, an interview or a custodianship declaration The objective is to be satisfied with respect to whether an applicant can provide care and support to themselves while in Canada. Custodianship arrangements are not required when the minor child is accompanied by at least one parent or a guardian A legal arrangement is made to give the custodian in Canada the permission to act in place of a parent or legal guardian. A Custodianship Declaration must be signed by the Custodian and the parents/ guardians and the signatures must be certified by a notary public or Commissioner of Oaths

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)

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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

Mandatory vs. Discretionary Custodianship

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

• bligations as a custodian in the event of an emergency

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Custodianship: Responsibilities and Limitations

Parent/Guardian’s Declaration I/We, ______________________ and ______________ (names

• f

parents/guardians), the parents/guardians

• f

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

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

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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

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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

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How to Limit Potential Liability

• As a Custodian, properly notify parents/guardians when the custodianship agreement

should cease but a clear line has not been established (e.g. minor remaining in Canada after the end of the school year and traveling to another province, within Canada, where the Custodian will not be able to fulfil his/her duties

• Make sure that parents/guardians agree to find another custodian when the school year

ends and the student remains in Canada away from

• Have a protocol in place for life or death calls and make sure that the parents are fully

aware

• Obtain proper legal advise when something is not covered by guidelines
• Seek expert advice for legal matters that may be outside your area of expertise (e.g.

immigration advice on entry/exit requirements when students travel during March break, Christmas breaks)

Eva Osorio, RCIC, BA, C. Tran. Global Proficio Inc. Immigration to Canada www.globalproficio.com T: (902) 717-6664/counsel@globalproficio.com

Q & A

Eva Osorio, RCIC, BA, C. Tran. Global Proficio Inc. Immigration to Canada www.globalproficio.com T: (902) 717-6664/counsel@globalproficio.com

Thank you

Study Permits Applying for an initial study permit within Canada

Application after entry 215 (1) A foreign national may apply for a study permit after entering Canada if they (a) hold a study permit; (b) apply within the period beginning 90 days before the expiry of their authorization to engage in studies in Canada under subsection 30(2) of the Act, or paragraph 188(1)(a) of these Regulations, and ending 90 days after that expiry; (c) hold a work permit; (d) are subject to an unenforceable removal order; (e) hold a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months; (f) are a temporary resident who (i) is studying at the preschool, primary or secondary level, (ii) is a visiting or exchange student who is studying at a designated learning institution, or (iii) has completed a course or program of study that is a prerequisite to their enrolling at a designated learning institution; or

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