April 29, 2009

Can He Sponsor His Undeclared Son?

Q. My ex-husband had an affair with a woman while we were still married and from that relationship the woman became pregnant and had a son. Sometimes later we moved to Canada from Trinidad and apparently he was not aware of this child because the mother had a husband as well. When he applied for permanent residence that child was not put on his application. At this time the boy will like to come to Canada because his mom died about five years ago. How can his father sponsor him before he becomes 22?

A. First, confirming paternity is always step one. Thus, a DNA test should be undertaken. Second, if the child is your former husband’s biological son is he the child’s lawful father? In short, did the husband of the child’s biological mother become the child’s adoptive father? If so, your former husband will not be recognized as the child’s father in law and therefore the child is not a member of the family class. The other key is the age of the child. Is he over the age of 18? The Immigration Act only recognizes children adopted before the age of 18 as members of the family class. If the child is under 18 your former husband may need to go through an adoption process if necessary and possible based upon his relationship to the other (perhaps adoptive) father. The other concern is that your ex-husband must go through a family sponsorship procedure but may be barred in sponsoring because the child was not previously declared. Normally, undeclared family members cannot be later sponsored. This is a very complex case that requires both an immigration lawyer as well as a family lawyer. Good luck!