All applicants, unless exempt, must show that they have enough money to support themselves and their  family in Canada upon immigration. Proof of Funds (PoF) is one of the minimum eligibility requirements for:

• the Federal Skilled Worker Program or
• the Federal Skilled Trades Program

The funds must be available with the applicant, both, when the application for permanent residency is filed and when a permanent resident visa is issued.

If an applicant meets the the program requirements of the Canadian Experience Class (this includes provincial nominees who are part of the CEC stream), they are exempt from the PoF requirement. Also applicants who are authorized to work in Canada and have a valid job offer.

The Legal Genesis –

The PoF requirement is not present in the Immigration & Refugee Protection Act (IRPA). However, the IRPA regulations stipulate the PoF requirements along with the eligibility requirements. The selection criteria as set forth in subsection R76(1), also mandates that the applicant have sufficient funds available to support their settlement in Canada, pursuant to subparagraph R76(1)(b)(i). The relevant paragraph states as follows

(b) the skilled worker must

               (i) have in the form of transferable and available funds, unencumbered by debts or other obligations, an amount equal to one half of the minimum necessary income applicable in respect of the group of persons consisting of the skilled worker and their family members, or

              (ii) be awarded points under paragraph 82(2)(a), (b) or (d) for arranged employment, as defined in subsection 82(1), in Canada.

To meet the requirements of the above paragraph, the funds available with the applicant must be

• available and transferable;
• not borrowed;
• unencumbered by debts or other obligations; and
• sufficient to support initial establishment in Canada.

Pursuant to section R77, the requirement and criteria for settlement funds must be met at the time the application is made as well as when the permanent resident visa is issued.

How much money is required to meet the PoF requirement?

The amount of money an applicant needs to support his family is set by the size of an applicant’s family. To calculate the size of a family the following must be included:

• yourself
• your spouse or partner
• your dependent children and
• your spouse’s dependent children

When calculating the applicant’s family size, applicant’s spouse or dependent children who are permanent residents or Canadian citizens also have to be included, even when they are not named in the application.

The applicants will need to show proof that they have enough money when they apply to immigrate, and again when the application is approved.

If the applicant is unable to demonstrate that they have sufficient funds to meet the requirements, the application is refused.

The current sufficient funds requirements as established by IRCC is:

How to meet the PoF requirement?

When an applicant is invited to apply for permanent resident, they must give written proof that they have this money and demonstrate that they meet the PoF. All applicants should provide an official letter(s) from one or more financial institutions that lists all current bank and investment accounts as well as outstanding debts, such as credit card debts and loans.

• The letter(s) must be printed on the letterhead of the financial institution and must include the applicant’s name, the contact information of the financial institution (address, telephone number and email address), the account numbers, the date each account was opened and the current balance of each account as well as the average balance for the past six months.

• Other documents may also be requested, as necessary.

When showing the funds, these cannot be borrowed from another person. This is the intention of IRCC to ask for 6 months average balance. Also, an applicant must be able to use this money to pay the costs of living for his family, even when they non-accompanying.

Showing funds held in joint accounts and spouse’s accounts

If an applicant’s spouse is accompanying, the applicant can show the funds held together in a joint account to meet the PoF requirement. However, to be able to show the funds for meeting the PoF requirement, held in an account under the spouse’s name only, the applicant must prove that they have access to the funds. This can me done by the spouse executing an affidavit affirming that the funds held in the spouse’s account can be used by the applicant for the purpose of meeting the PoF requirements.

Similarly, if an applicant has a joint account with their parent, then the parent will have to execute an affidavit affirming that the funds held in the joint account can be used by the applicant for the purpose of meeting the PoF requirements.

Using gift deed to meet PoF requirement

If you are invited to apply, and you cannot meet the PoF requirements, you can consider meeting this by getting the funds in form of a Gift. Gift, as defined under law is the “voluntary transfer of property (movable or immovable) from one person (the donor or grantor) to another (the donee or grantee) without full valuable consideration (exchange of money or property), or an expectation of return. When executing the gift deed, it should meet the formalities of the country in which the gift deed is being executed. The gift deed will also overcome the 6 months average balance requirement as the funds will be with the applicant shown as a gift.

Gift deed in India

In India, gifts are governed by the Transfer of Property Act, 1882 (the law which governs transfer of movable and immovable property) in Chapter VII (which deals with Gifts), specifically Section 123 clearly states:

22. “Gift” defined
“Gift” is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made-Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.

123. Transfer how effected
For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.

So in effect, there is no requirement for a written instrument. However, to show evidence of the gift to IRCC, a written instrument is mandatory.

A gift deed or an affidavit is sufficient, as both, the stamp paper and the gift deed are executed on a Rs. 100 stamp paper, and the stamp paper is registered in the name of the person who is executing the document, i.e. the donor.

Further, section 122 lays down the requirement for how the gift is made. The basic requirements that should be met in a gift deed are:

a. The transfer should be made voluntarily;
b. without consideration (no expectation of money, return, or other favours); and
c . an acceptance by the donee (acceptance can be by acknowledging in writing that the gift has been received or by the act of receiving it).

What cannot be used as PoF?

Any asset which cannot be readily liquidated, and the price of which cannot be ascertained immediately, cannot be used to meet the PoF requirements. Therefore, real estate assets, stocks etc. cannot be used. However, bank deposits, mutual funds, treasury bills, bonds, provident fund (India), Life Insurance Policy (whole life insurance, term life cannot be used) and similar monetary investments that can be readily liquidated, can be used for PoF, without liquidating them.

Need help with PoF or Gift deed

If you need help drafting a gift deed, GET GCMS would be happy to draft one for you, which meets your needs. Please contact GET GCMS for details. After you file your express entry application, it is important to keep a track of whether the PoF have been accepted and there are no issues with the PoF documents. GCMS notes (see how they look and how to order them) can greatly help you understand what is happening with your application, and if there are any concerns with the PoF. You can order GCMS notes at anytime, which will help you keep a track of your application and let you take corrective action, if necessary. GCMS notes will help also you see if any additional document request for PoF has been successfully accepted and added to your file by the IRCC.

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