Vol. 132, No. 23 — November 11, 1998

Registration
SOR/98-544 29 October, 1998

IMMIGRATION ACT

Regulations Amending the Immigration Regulations, 1978

P.C. 1998-1927 29 October, 1998

His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to section 114 (see footnote a) of the Immigration Act, hereby makes the annexed Regulations Amending the Immigration Regulations, 1978.

REGULATIONS AMENDING THE IMMIGRATION REGULATIONS, 1978

AMENDMENTS

1. The definition "accompanying dependant" in subsection 2(1) of the Immigration Regulations, 1978 (see footnote 1) is replaced by the following:

"accompanying dependant", with respect to a person, means a dependant of that person to whom a visa is issued at the time a visa is issued to that person for the purpose of enabling the dependant to accompany or follow that person to Canada and, if the dependant is the spouse of that person, who is at least 16 years of age at the time the visa is issued; (personne à charge qui l'accompagne)

2. Section 4 of the Regulations is amended by adding the following after subsection (3):

(3.1) The family class does not include a spouse who is less than 16 years of age.

COMING INTO FORCE

3. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

The Immigration Act allows the Governor in Council to make regulations providing for the application of selection standards to prescribed classes of immigrants based on such factors as family relationships. It also allows the Governor in Council to define in the regulations the meaning of certain terms and expressions found in the Act.

These amendments introduce a minimum age, 16 years, for spouses accompanying immigrants to Canada. This age will be added to the definition of accompanying dependant. The same minimum age will apply as well to spouses sponsored as immigrants by Canadian citizens and permanent residents. Spouses less than this minimum age will be excluded from the Family Class prescribed in Immigration Regulations, 1978.

This minimum age rests on the same concept as the maximum age limit in the regulatory definitions of dependent son or daughter. The nature of family relationships are defined to some extent by age. Children pass out of the family unit into independence once they reach a certain age. Similarly, on reaching a given age, children may become spouses and create new families.

Canadian society's notions of when the first of these transitions should or can occur are reflected in federal and provincial legislation governing elections, age of majority, age of adoption, obligations of parents to support their children, government transfers to families with dependent children (family allowances), and tax credits and pensions benefits related to dependent children. This body of legislation was a reference point for the existing definitions of dependent son or daughter in the Immigration Regulations, 1978.

Provincial laws about the solemnization of marriages provide the reference point for the amendments. These laws include explicit minimum age requirements for the transition from child to spouse. Without the amendments, the Immigration Regulations, 1978, allow the immigration of people who have not satisfied these requirements.

These changes are designed to prevent the immigration of married couples in which one member is less than 16 years old and of people less than 16 years old who are married to Canadian citizens or permanent residents eligible to sponsor their spouses as immigrants. The bar on admission created by these changes will apply to applicants only as long as they or their spouses are less than 16 years old at the time of visa issuance.

In preventing the immigration of married people less than 16 years old, Citizenship and Immigration (CIC) is not altering its policy and practice of recognizing the validity of marriages (except polygamous marriages) that were legal where they took place. Requiring accompanying dependant spouses to be at least 16 years old and excluding spouses less than 16 years old from the Family Class is designed simply to prevent the immigration of spouses less than 16 years old. If after attaining this age, applicants accompany or are sponsored by their spouses, their age at marriage is only relevant if it affects the legality of the marriage where it occurred.

Alternatives

A non-regulatory measure was considered. It was simply an instruction in the Overseas Processing manual to wait until spousal applicants are 14 years old before issuing immigrant visas.

This alternative is an acknowledgment that marriages of people as young as 14 years old to much older spouses occur in Canada. It is also based on provisions in the Criminal Code for age related sexual offences.

It was rejected for several reasons. Notably, it would expose CIC to the risk of impatient applicants less than 14 years old and their sponsors making mandamus applications to the Federal Court. Moreover, it would also fail to satisfy the Quebec government's desire to prevent the immigration of spouses under 16 years old.

Like other provinces, Quebec only allows marriage with parental consent if the parties are both at least 16 years old. This higher age requirement, based on the provincial legislation governing the solemnization of marriages, is a more suitable model for the amendments because it recognizes marriage as a relationship that is not strictly sexual.

Benefits and Costs

People less than 16 years old are generally unable to marry in Canada. This restriction is founded on Canadian social and legal traditions which support marriages based on mutual consent. Both partners must be old enough to ensure their marriage is not an abuse of power by parents or fiancés. Minimum age and other requirements for the solemnization of marriages in Canada also reflect a public interest in what would be a private matter but for the young age of one of the parties to the marriage.

The marriages abroad of young immigrant spouses are not subject to conditions that protect the legal and social equality of marriage partners and the interests of the communities where they will live in Canada. Should these marriages deteriorate into abusive relationships, the young immigrant spouses may be especially vulnerable. It might not be feasible for them to turn to parents or siblings outside Canada for protection.

Preventing the immigration of spouses less than 16 years old, potentially prevents them from finding themselves in such situations in Canada.

The number of immigrant spouses less than 16 years old is small. Delaying their arrival in Canada as permanents residents until they are at least 16 will not have any long term costs.

Consultation

Quebec had its own proposal to prohibit sponsorship of spouses under 16 years old. Quebec agreed to refrain from implementing its proposal when it emerged CIC was considering a similar measure. Officials from Quebec have contributed to CIC's policy development. Quebec is in favour of a regulatory option.

CIC officials have also discussed the question with counterparts from Ontario and Alberta. Both these provinces receive the largest numbers of young spouses. Neither province has expressed opposition to CIC's proposals.

Other provinces and territories have not opposed the amendments. CIC has explained the issue to them in writing.

CIC has consulted as well with the Department of Justice and the Department of Foreign Affairs and International Trade. Neither department has opposed the amendments.

No comments were received in the 60 days after June 27, 1998; the date notice was given in the Canada Gazette Part I that the Governor in Council proposed amending the Immigration Regulations, 1978.

Compliance and Enforcement

Application guides explain eligibility requirements for immigration. Applicants will learn from these guides that the immigration of spouses less than 16 years old is not possible.

The Case Processing Centre in Mississauga processes applications to sponsor Family Class immigrants. It determines if the people whom applicants want to sponsor appear to be members of the Family Class.

Visa officers have final authority to decide if all applicants, including sponsored applicants, meet the requirements for visa issuance. They may refuse applications for visas from married couples in which one member is less than 16 years old and from the spouses less than 16 years old of Canadian citizens or permanent residents.

Contact

Joan Atkinson
Director General, Selection Branch
Citizenship and Immigration Canada
Jean Edmonds Tower North, 7th Floor
300 Slater Street
Ottawa, Ontario
K1A 1L1
Tel.: (613) 941-8989
FAX: (613) 941-9323

Footnote a

S.C. 1994, c. 26, s. 36

Footnote 1

SOR/78-172

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