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Green and Spiegel - An Immigration Law Firm
Jul 13, 2020

Canada-United States COVID-19 border restrictions keep families, couples separated


Canada-United States COVID-19 border restrictions keep families & couples separatedIf distance makes the heart grow fonder, the unyielding gulf imposed by COVID-19-related travel restrictions at the Canada-U.S. border is compounding the heartache for those with the strongest of bonds – families and couples.

Although there are some exceptions to the general law that prohibits travel to Canada from the U.S. for a discretionary or optional purpose, some relationships – adult children of Canadians, or a non-Canadian long-distance lover – don’t qualify for entry under an exception for an “immediate family member” of a Canadian. For now, this means many committed couples and family members eager to reunite are forced to remain separated, a reality likely made more difficult without knowing when the restrictions will be lifted.

General ban on discretionary travel at heart of restrictions

After COVID-19 started seeping into Canada and spreading through communities, Canada introduced laws prohibiting most non-Canadian travellers from entering the country in March 2020. It was a move prompted by an urgent priority to halt and control the spread of COVID-19 in Canada, itself exacerbated by travel.

A general prohibition on entry into Canada still stands. Enacted by way of Orders-in-Council (legal instruments used by the Cabinet), as authorized under the Quarantine Act, the current law affecting travel from the U.S. states that foreign nationals (those who are not Canadian citizens or who do not have permanent residence status in Canada) are prohibited from entering Canada in key scenarios, including where a foreign national has or is believed to have symptoms of COVID-19.

According to the most recent Order-in-Council from June 29, 2020, another restriction continues to ban foreign nationals from entering Canada from the U.S. “if they seek to enter for an optional or discretionary purpose, such as tourism, recreation or entertainment.”

However, there is an exception to this ban on non-essential travel: the exception applies to a specific category of people whom the government considers to be an “immediate family member” of a Canadian citizen or permanent resident. Travellers wishing to enter Canada using this exception must also satisfy a border officer that the intend to cross the border to be with their Canadian family member and can demonstrate their intent to stay in Canada for at least 15 days.

Who is an ‘immediate family member’?

The definition of “immediate family member” is causing headaches and heartbreaks for family members not included in this category. The problem many loved ones face is that an “immediate family member” is a specific legal term that captures only the relationships as defined in the law. Its potentially broader, more modern or colloquial meaning regarding who makes up a person’s immediate family has no legal force.

According to the applicable law, an immediate family member of a Canadian citizen or permanent resident is defined as follows:

  1. the spouse or common-law partner of the person;
  2. a dependent child of the person or of the person’s spouse or common-law partner;
  3. a dependent child of a dependent child referred to in paragraph (b);
  4. the parent or stepparent of the person or of the person’s spouse or common-law partner; or
  5. the guardian or tutor of the person.

Although the restrictions have eased somewhat – some categories of relationships continue to be left out.

(Mere) lovers in a dangerous time not enough to earn exemption

News outlets including the CBC and CTV have recently brought public attention to the types of relationships that are not covered by the specific immediate family exception. The following relationships are among those that remain excluded by the current rules:

  • A non-Canadian in a relationship with a Canadian, but who is not
    • Married to a Canadian; or
    • In a common-law relationship with a Canadian
  • An adult child (who is not a “dependent child”) with a Canadian parent;

These excluded relationships also capture engaged, committed and long-term couples who do not qualify as common-law partners. It also means a non-Canadian adult living in the U.S. who has a sick, elderly parent in Canada is not eligible for an exception to the general ban on discretionary travel through the immediate family member exception. The key barrier in this scenario would be the focused definition of a “dependent child” under the law.

Proof at border remains tricky hurdle

Another complication that ensnares travellers hoping to reunite is the evidentiary burden and discretion at the border: Immigration, Refugees and Citizenship Canada (IRCC) instructions available online encourage travellers to provide documentary proof that they meet the “immediate family member” criteria. This means they must establish Canadian citizenship or permanent resident status of their loved one and satisfy the legal definition of the claimed relationship creating the “immediate family member” status.

This problem is highlighted with couples who are in the common-law relationship. This category captures those in a genuine relationship who have lived together for at least one year as though they were married.  Proving common-law status is not simple to prove and frequently individuals are unable to provide proof of the relationship.

If you have any questions regarding whether you or a loved one may qualify for the immediate family member exception, please contact us.

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