COVID-19 Developments and Legal Updates

Brittany Trafford

The Canadian borders have been restricted for over a year now and many families have struggled with being separated. Throughout 2020 and early 2021 restrictions have fluctuated as the federal government tried to balance their recognition of the importance of family reunification, with the risks of the pandemic. After many months missing immediate and extended family members, people in Canada are looking for ways to come together with their relatives.

While everyone is waiting with much anticipation for changes to the travel restrictions as vaccines roll out, this article explores the current state of the federal travel restrictions in Canada and how it impacts family reunification. In some cases, though much more difficult than normal, it is possible for family members to finally gather together. Knowing the steps to take and who is eligible to enter Canada will help families plan ahead and avoid disappointment.

Coming to Canada: who is eligible?

The requirements for family members to enter Canada depends on a number of factors including: 1) the immigration status of the family member in Canada; 2) the relationship between the individuals separated; and, 3) the location of the family member outside Canada.

In some cases, provincial restrictions also prohibit family members from reuniting; for example, New Brunswick restricts all “unnecessary travel” which would include entering the province to visit a family member. Similarly, Nova Scotia is also currently restricting entrance to the province to “essential travel” only, which does not include visiting people in the province including family members. These provincial requirements may relax as provinces open up; however, it is essential to consider any provincial restrictions that will prohibit travel into the region, even if approved for entrance by Immigration, Refugee and Citizenship Canada (“IRCC”) and by the Canada Border Services Agency (“CBSA”).

This article focuses only on federal restrictions and we encourage you to seek guidance on the particulars of the province of destination before travelling, especially as the provincial restrictions frequently fluctuate as provinces react to their circumstances and the third wave of the pandemic.

A) Immediate family members of Canadians and permanent residents

Immediate family members of Canadians and permanent residents (“PRs”) of Canada are eligible to enter the country under federal exemptions. An immediate family member includes:

• a spouse or common-law partner
• dependent children (in most cases children under 22 years old)
• dependent children of a dependent child
• parents or step-parents
• parents or step-parents of the spouse or common-law partner
• guardians or tutors

They must show evidence that they are eligible to enter Canada when boarding a plane and upon arrival at the port of entry. This evidence will include:

• Evidence of the status of the Canadian or permanent resident in Canada (i.e. copy of passport, citizenship certificate, birth certificate or PR card)
• Proof of the relationship to the immediate family member (i.e. marriage certificate, proof of common-law status, or birth certificates for children listing the Canadian/PR parent)
• Evidence that they intend to stay in Canada for more than 15 days (if they are travelling for a non-discretionary reason, like a pure visit)

Where the travel is for less than 15 days, the purpose of the travel should be for a non-optional or non-discretionary reason, which means it cannot be for tourism or a recreational purpose.

These family members will be subject to the normal travel requirements such as needing a visa or electronic travel authorization if not a US citizen. They are also subject to quarantine requirements and pre and post-arrival COVID-19 testing requirements. They will need to show that they have a suitable quarantine plan which may include an approved hotel booking where the individual enters Canada by flight.

B) Extended family members of Canadians or permanent residents of Canada

In some cases, an extended family member of a permanent resident or Canadian may be able to enter Canada. An extended family member includes the following:

• an individual who is 18 years of age or older, is in an exclusive dating relationship with the Canadian/PR (who is also 18 years of age or older), has been in such a relationship for at least one year and has spent time in the physical presence of the person during the course of the relationship
• a dependent child of the person in the exclusive dating relationship
• a child of the Canadian/PR (other than a dependent child) or a child of their spouse or common-law partner or of the person in the exclusive dating relationship
• a dependent child of a child (a grandchild)
• a sibling, half-sibling or step-sibling of the Canadian/PR or of the Canadian/PR’s spouse or common-law partner
• a grandparent of the Canadian/PR or of the Canadian/PR’s spouse or common-law partner

These individuals must be entering for more than 15 days (if they are travelling for a non-discretionary reason, like a pure visit), and will need to sign a statutory declaration before a notary swearing to their relationship. They will then submit the declaration and supporting documents to IRCC to obtain written authorization confirming their eligibility to enter Canada. They must have the written authorization to show the CBSA officers upon arrival. They will be required to obtain a visa or electronic travel authorization if not a US citizen. They will also be required to follow all quarantine and testing requirements for entrance to the country.

C) Immediate family members of temporary residents in Canada

In recognition of the importance of family reunification, the government has also allowed some exemptions for family members of individuals who are in Canada with temporary status (on work permits or study permits or as a visitor). The process is a bit different than that used for immediate family members of Canadians and the exemption only applies to immediate family members, not to extended family members. Immediate family members include those listed under section A above.

In order to enter the country from the United States, the rules merely state that the foreign national cannot enter for an optional or discretionary reason. Therefore, the foreign national cannot enter Canada for tourism or entertainment purposes, but may be able to make an argument for entry in other cases. Generally, this exemption will apply when an immediate family member is entering to take up longer term or permanent residence with their immediate family member while they are in Canada, rather than for a vacation. They do not require a written authorization, but must have documentation to prove their relationship to the temporary resident in Canada (or with whom they are entering), evidence that the family member has status in Canada (i.e. a copy of the work permit or study permit), and evidence to support their purpose of entry.

If the family member is entering Canada from outside the United States, they will require written authorization to enter Canada and will need to show they are entering for the purposes of family reunification. They must request the authorization online from the Public Health Agency of Canada. The processing time can take about 14 days. They will need to provide evidence that the person in Canada has status here, that they are an immediate family member and that their travel is non-discretionary. In most cases, the travel will be to reunite and reside with the family member. The traveller must have their electronic travel authorization or visitor visa, depending on their country of citizenship. They will need the written approval in order to board the plane to Canada and to show CBSA upon arrival.

Immediate family members of temporary residents in Canada are subject to all other restrictions, including quarantine requirements and pre and post-arrival COVID-19 testing.

D) Entrance for compassionate grounds (funerals and caregiving)

Finally, it is important to recognize that some family members may need to enter the country for compassionate purposes. The situation must meet the exemptions set out in the Orders in Council that include: to provide care to a Canadian, permanent resident or temporary resident who has been deemed critically ill by a medical professional or deemed to require medical support; or, to attend a funeral or end of life ceremony.

In order to be exempted from the travel restrictions and normal quarantine requirements, the individual would need to obtain pre-approval from the Public Health Agency of Canada, which can be obtained through an online application that includes providing evidence of the medical condition or death, letter of support for caring for someone at end of life and a site visit authorization form from the places the foreign national will attend (including care facilities, hospitals and funeral homes).

Conclusion

Canada’s travel requirements will potentially be changing this summer through a phased approach, including a gradual lifting of travel restrictions and quarantine requirements.  However, even under the current restrictions there may be ways for families to reunite following a difficult year as people become more confident in travelling and are looking to finally see their loved ones.

Because of the frequent changes and additional provincial restrictions that are in flux, we recommend you seek immigration advice on travel eligibility and required steps before planning your trip. Our team of immigration lawyers is happy to help.

This article is provided for general information only. If you have any questions about the above, please contact a member of our Immigration group.