Singh v. Canada: The Charter Applies to Refugee Claimants

Singh v. Minister of Employment and Immigration was a 1985 Supreme Court of Canada decision that is to this day arguably the most significant decision that Canada’s Supreme Court has made in the area of Canadian immigration and refugee law.

The Facts

The Appellants were a mixture of Sikh and Guyanese individuals who sought refugee status in Canada during the late 1970s and early 1980s. At the time, the Immigration and Refugee Board did not yet exist.  Rather, asylum claimants submitted refugee claims directly to Canada’s immigration department, who would determine whether someone was a refugee based on advice received from the Refugee Status Advisory Committee.  If the claimant was unsuccessful, they could appeal to the Immigration Appeal Board.  Both the initial claim and the appeal were based on written submissions, and at the initial petition for asylum a claimant would also be questioned under oath by an immigration officer.  Applicants were not allowed to make oral appeals.  Nor could they respond to arguments made against them by the Refugee Status Advisory Committee.

The Appellants in Singh argued that the lack of a hearing violated Canada’s Charter of Rights and Freedoms. 

The Supreme Court’s Decision

The Supreme Court of Canada’s decision was a split one, although all six justices determined that the previous approach which denied an oral hearing could not stand.  Three of the justices based their decision on the Charter.  Three based it on Canada’s Bill of Rights. 

The key and lasting holdings of the Supreme Court of Canada were as follows:

  • While non-citizens do not have a right to enter or remain in Canada, a refugee who does not have a safe haven elsewhere is entitled to rely on Canada’s willingness to live up to the obligations it has undertaken as a signatory to the United Nations Convention Relating to the Status of Refugees.
  • The principles of fundamental justice demand, at a minimum, compliance with the common law requirements of procedural fairness.

In response to the government’s concern that the Supreme Court of Canada imposing a requirement that every refugee claimant in Canada get a full hearing would be prohibitively expensive, the Supreme Court responded by stating the following (which continues to be cited with concern by those who are worried about the cost of “judicial activism”):

… the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under s. 1 [of the Charter]. The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in s. 7 [of the Charter], implicitly recognize that a balance of administrative convenience does not override the need to adhere to these principles. Whatever standard of review eventually emerges under s. 1, it seems to me that the basis of the justification for the limitation of rights under s. 7 must be more compelling than any advanced in these appeals.


Even if the cost of compliance with fundamental justice is a factor to which the courts would give considerable weight, I am not satisfied that the Minister has demonstrated that this cost would be so prohibitive as to constitute a justification within the meaning of s. 1. Though it is tempting to make observations about what factors might give rise to justification under s. 1, and on the standards of review which should be applied with respect to s. 1, I think it would be unwise to do so. I therefore confine my observations on the application of s. 1 to those necessary for the disposition of the appeals.

To recapitulate, I am persuaded that the appellants are entitled to assert the protection of 7 of the Charter in the determination of their claims to Convention refugee status under the Immigration Act, 1976. I am further persuaded that the procedures under the Act as they were applied in these cases do not meet the requirements of fundamental justice under s. 7 and that accordingly the appellants’ rights under s. 7 were violated. Finally, I believe that the respondent has failed to demonstrate that the procedures set out in the Act constitute a reasonable limit on the appellants’ rights within the meaning ofs. 1 of the Charter. I would accordingly allow the appeals. In so doing I should, however, observe that the acceptance of certain submissions, particularly concerning the scope of s. 7 of the Charter in the context of these appeals, is not intended to be definitive of the scope of the section in other contexts. I do not by any means foreclose the possibility that s. 7 protects a wider range of interests than those involved in these appeals.

The Aftermath

Four years after the Singh ruling, Canada created the Immigration and Refugee Board, which still exists today.  Refugee claimants are entitled to a hearing before the Refugee Protection Division, and, since 2013, also have an appeal to the Refugee Appeal Division.



When Procedural Fairness Requires a Fairness Letter

One of the most complicated topics in immigration law is determining when procedural fairness will require an immigration officer who is assessing an application to seek clarification in the form of a fairness letter or interview.

As the Supreme Court of Canada noted in Baker v. Canada (Minister of Citizenship and Immigration) the the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. When a visa officer does not rely on third party extrinsic evidence to make a decision it can often appear unclear when exactly it is necessary for an officer to afford an applicant an interview or a right to respond to the officer’s concerns.  However, there will be a right  to respond under certain circumstances.

Requirement to Provide Complete Applications

Visa officers do not have any legal responsibility to advise applicants of incomplete or inadequate applications.

In Kaur v. Canada (Citizenship and Immigration), 2010 FC 758, for example, the Federal Court dismissed a judicial review application of a visa officer’s refusal of an applicant under the Federal Skilled Worker Program. A visa officer determined that the application was deficient as it failed to include required information regarding the applicant’s salary and benefits. The applicant argued that the Canadian embassy should have told the applicant that this information was missing, and given her a chance to provide what was missing. However, the Court noted that there is no duty to advise an applicant of a deficient application. As Justice Mandamin noted, the process is clear. An applicant must provide a complete application.

As such, and to reiterate, visa officers do not have the obligation to notify applicants of inadequacies in their applications nor in the supporting documents. They do not have to seek clarification or additional documentation, nor provide an applicant with an opportunity to address concerns, when the material provided in support of an application is unclear, incomplete or insufficient to show that someone meets legislative program requirements.

Credibility Concerns

A duty may exist, however, to provide an applicant with the opportunity to respond to a visa officer’s concerns when the officer is concerned with the credibility, the veracity, or the authenticity of the documentation provided by an applicant as opposed to the sufficiency of the evidence provided.

In Sandhu v. Canada (Citizenship and Immigration), 2010 FC 759,  for example, an application was complete.  However, the visa officer rejected the application because he did not believe the genuineness of one of the applicant’s answers on the application. The Court acknowledged that the duty of procedural fairness in the decisions of visa officers [is] at the low end of the spectrum. However, Justice Mandamin, the same Justice as above, also noted that where the application is adequate, but the officer nevertheless entertains a doubt on the evidence, there remains a duty to clarify the information. The judge thus allowed the judicial review.

Grewal v. Canada (Citizenship and Immigration), 2011 FC 167 provides another example of this principle. There, an application was rejected because of a poor IELTs score.  In brief, the applicant had arranged employment in Canada as a Retail Trade Manager, but the visa officer determined that she would be unable to perform the required duties  of the arranged employment because of her poor IELTS marks. The visa officer refused the application without providing the applicant with an opportunity to respond to this concern.

Justice Noel noted numerous factors that resulted in the officer having a duty to seek additional information from the applicant, including 1) that immigration guidelines specified that additional information would be required for doubts over Arranged Employment Offers, 2) that the language proficiency concern derailed the individual’s entire claim for permanent residence, and 3) that the applicant’s consultant had thoroughly explained the reason for the poor test and had stated that another would be forthcoming.  Accordingly, Justice Noel determined that procedural fairness dictated that a fairness letter or interview be provided.

Singh v. Canada, 2010 FC 1306 is a final example.  There, an officer rejected a work permit application because the only documents which the applicant provided to support her claimed employment experience as a Ragi were reference letters.  The officer stated that she saw “many such letters which turn out to be fictitious”, and that she required “more than letters, for instance, newspaper cut outs, photos of them practicing or letters of reference, to properly corroborate claims of training, knowledge, and experience.”  The Federal Court, however, overturned this decision, noting that the applicant was not put on notice that the officer was concerned with the veracity of letters, and did not request further documentation.


In 2011, Justice O’Keefe in Kaur v. Canada, 2011 FC 219 provided  an excellent articulation of the current jurisprudence, and what should be the starting basis for any analysis of whether procedural fairness required the providing of the applicant with an opportunity to respond to a given concern.  The Court stated that:

An officer is not under a duty to inform the applicant about any concerns regarding the application which arise directly from the requirements of the legislation or regulations (see Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501 at paragraphs 23 and 24).

The onus was on the applicant to satisfy the officer of all parts of her application and the officer was under no obligation to ask for additional information where the applicant’s material was insufficient (see Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262 (F.C.T.D.), [1999] F.C.J. No. 1198 (QL) at paragraph 6).

However, the officer was obligated to inform the applicant of any concerns related to the veracity of documents that formed part of the application and the officer was required to make further inquires in such a situation (see Hassani above, at paragraph 24).

The message from the courts seems clear. Visa applicants have one shot, and they should ensure that the effort that they put forward is their best, because if they do, procedural fairness will require that immigration officers provide them with the opportunity to address concerns.

If they don’t put their best foot forward, however, then their applications will be rejected outright.

Self Employed Class – What Are Cultural and Athletic Activities?

Canada’s Self-Employed Program seeks to attract to Canada individuals who have the intention and ability to become self-employed in Canada. Self-employed persons are required to have either:

  • relevant experience that will make a significant contribution to the cultural or athletic life of Canada or
  • experience in farm management and the intention and ability to purchase and manage a farm in Canada.

The farm management component of the program closed on March 10, 2018.

Eligibility – Athletics and Cultural Experience

The Immigration, Refugees and Citizenship Canada (“IRCC”) website states that to qualify for the Self-Employed Program applicants must show that they:

  • have relevant experience;
  • intend and be able to be self-employed in Canada; and
  • can contribute to Canada’s economy in one of the required areas.

“Relevant experience” under the Self-Employed Program means at least two years of experience during the period starting five years before a person applies for permanent residence and ending by the time the visa is issued. The experience must be:

  • for cultural activities:
    1. two one-year periods being self-employed in cultural activities, or
    2. two one-year periods participating at a world-class level in cultural activities, or
    3. a combination of a one-year period described in (1.) above, and a one-year period described in (2.) above.
  • for athletics:
    1. two one-year periods being self-employed in athletics, or
    2. two one-year periods participating at a world class level in athletics, or
    3. a combination of a one-year period described in (1.) above, and a one-year period described in (2.) above.

What Are Cultural Activities? 

According to the IRCC website, “cultural activities” include jobs generally seen as part of Canada’s artistic and cultural fields. Examples include:

  • authors and writers,
  • creative and performing artists,
  • musicians,
  • painters,
  • sculptors and other visual artists,
  • technical support and other jobs in motion pictures,
  • creative designers and
  • craftspeople.

The IRCC website further states that a full-list of qualifying activities can be found here.

Would someone who has practiced Chinese medicine and intends to practice Chinese medicine in Canada have the relevant experience under the program?

No. In Ding v. Canada (Citizenship and Immigration), 2010 FC 764, Justice Beaudry noted that cultural activities are meant to be those as ordinarily understood to be part of the arts.  Thus, the Court ruled that there is no basis on which to conclude that experience in a Chinese therapeutic massage clinic and training center falls within the meaning of cultural activities.

What Are Athletics? 

The IRCC website does not give examples of what “athletics” are, however, the Employment and Social Development Canada (“ESDC”) website lists the following National Occupational Classification codes as being under minor group “Athletes, Coaches, Sports officials and referees, and Program Leaders and Instructors in Recreation, Sport and Fitness.”

It needs to be stressed that while the IRCC website seems to rely on the National Occupational Classification for determining which occupations are eligible for the Self-Employed Program, the Federal Court of Canada has cast some doubt on this. In Tollerene v. Canada (Citizenship and Immigration), 2015 FC 538, Justice Fothergill had to address the reasonableness of a visa officer’s determination that world-class poker experience did not constitute athletics under the Self-Employed Program.  This was actually our firm’s case, which we unfortunately lost.  After noticing that the ESDC listed “poker player” as an example of an “athlete,” we successfully represented several world-class poker players in immigrating to Canada under the Self-Employed Program.

After a visa officer refused the application, we took the decision to Federal Court.  IRCC ultimately prevailed, with Justice Fothergill noting that:

The Applicant referred to CIC’s National Occupational Classification (NOC) for athletes, which specifically contemplates that poker players may fall within this category. However, I agree with the Respondent that this NOC is intended for applications under the federal skilled worker scheme, and not the self-employed class. While it is true that the NOC for federal skilled worker applicants in the athletes category may include “chess players and poker players”, the Regulations, definitions and guidelines that apply to self-employed immigrants are silent on this point.

As such, as Justice Fothergill did not provide any analysis for why “chess players and poker players” should not be considered “athletes,” it appears that it is largely up to the visa officer to determine whether a given activity meets the definition of “athlete” under the Self-Employed Program.


US War Deserters – Immigrating to Canada

Being a war deserter does not in of itself mean that either a refugee claim or an application for permanent residency based on humanitarian & compassionate (“H&C“) grounds will succeed.

On July 6, 2010,the Federal Court of Appeal (the “FCA“) released its decision in Hinzman v. Canada (Citizenship and Immigration), 2010 FCA 177 (“Hinzman“)

Hinzman involved an American soldier who for moral and religious beliefs was against “all participation in war.”  In 2004, upon learning that his unit would be deployed to Iraq, Mr. Hinzman fled the United States for Canada. He was AWOL from the US army since his arrival in Canada.  He originally claimed refugee status, a claim which was unsuccessful.

Mr. Hinzman then filed a Pre-Removal Risk Assessment (“PRRA“) and an application for permanent residence based on H&C grounds.

A Citizenship and Immigration Canada officer (the “Officer“) rejected the PRRA.  She found that:

[t]he possibility of prosecution under a law of general application is not, in and of itself, sufficient evidence that an applicant has a well-founded fear of persecution. The PRRA application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

Mr. Hinzman did not seek leave to apply for judicial review of the PRRA decision.

The Officer also rejected the H&C application.  Mr. Hinzman sought leave to appeal of this decision.  The Federal Court upheld the Appellant’s decision. However, it certified the following question:

Can punishment under a law of general application for desertion, when the desertion was motivated by a sincere an deeply held moral, political and/or religious objection to a particular war, amount to unusual, undeserved or disproportionate hardship in the context of an application for permanent residence on humanitarian and compassionate grounds?

PRRA and H&C Applications Require Different Tests

The FCA answered the question in the affirmative. It is important to note that it did not rule that H&C would always be appropriate for war deserters, nor did it state that Mr. Hinzman’s H&C application should be successful. Rather, the FCA found that punishment for desertion, where the desertion was motivated by a deeply held moral, political and/or religious objection, could amount to unusual, undeserved, or disproportionate hardship. The Court thus remitted the matter to a different Officer with the requirement that the new officer reevaluate the application using this criteria.

This judgment is the latest in a series of decisions reminding immigration officers that PRRA and H&C applications require different tests.

Canada’s Immigration and Refugee Protection Act requires that PRRA officers give consideration to any new, credible, relevant, and material evidence of facts that might have affected the outcome of an appellant’s refugee claim hearing had this evidence been presented, and to assess the risk to the individual if removed.

H&C applications, meanwhile, require officers to regard public policy considerations and humanitarian grounds, including family-related interests.

The Officer did not appear to consider this, instead noting with regards to the H&C application that:

It is important to note that the possibility of prosecution for a law of general application is not, in and of itself, suffiicent evidence that an applicant will face unusual and undeserved, or disporporitionate hardship. The H&C application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

As the FCA noted, this standard of analysis is generally used for PRRA applications. It is not the test for H&C applications.

Operational Bulletin 202 – War Deserters

As a result of the Hinzman decision, Citizenship and Immigration Canada (“CIC“) released Operational Bulletin 202, which states:

This operational bulletin provides immigration officers in Canada with instructions on processing cases involving military deserters.


Some individuals who may have deserted the military or who may have committed an offence equivalent to desertion of the military in their country of origin have sought refuge in Canada. Desertion is an offence in Canada under the National Defence Act (NDA). The maximum punishment for desertion under section 88 of the NDA is life imprisonment, if the person committed the offence on active service or under orders for active service. Consequently, persons who have deserted the military in their country of origin may be inadmissible to Canada under section 36(1)(b) or 36(1)(c) of the Immigration and Refugee Protection Act.

The current inventory of military deserter cases is comprised primarily of members of the United States armed forces who have claimed refugee protection in Canada. Desertion from the armed forces is described as an offence pursuant to section 85 of the United States Uniform Code of Military Justice.

Many of the persons in our current case inventory have had their refugee claims heard and have subsequently applied for permanent residence in Canada based on humanitarian and compassionate considerations. Some have also applied for permanent residence in Canada as members of the spouse or common-law partner in Canada class. Others have filed Pre-removal Risk Assessment (PRRA) applications when faced with removal from Canada. These applications are at various stages of processing either in the regions or at CPC-Vegreville.

All cases which have come to the attention of the Case Management Branch (CMB) have been identified in FOSS via a non-computer based entry.

General guidelines
Processing applications for permanent residence in Canada

Given the complexity of equating either a conviction for desertion or the commission of an act constituting an offence of desertion under a foreign law with an offence under an Act of Parliament (the National Defence Act), officers are instructed to contact their Regional Program Advisor (RPA) for guidance when processing applications for permanent residence in Canada made by military deserters. Officers are also instructed to copy the Case Review Division of the CMB on their initial communication with their RPA.

Processing claims for refugee protection in Canada

Notification of all new claims for refugee protection by military deserters and any updates to these refugee claims including PRRA applications must be provided to CMB using the existing guidelines on processing high profile, contentious and sensitive cases (OP 1, section 15).


In accordance with current instructions with respect to cases where a personal interview or an in-depth investigation may be required, CPC-Vegreville is asked to transfer applications filed by military deserters to the appropriate inland CIC for processing.

In 2016, Immigration, Refugees and Citizenship Canada removed the reference to the United States from OB 202.

Through Access to Information Act requests we have also obtained what appear to be two internal directives to IRCC officers that will be helpful to anyone with clients whose H&C grounds are at least partially based on desertion.  They include research sources, factors that officers should consider, and possible interview questions.

Spousal Sponsorship and Social Assistance

Photo by George Vnoucek

Section 133 of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) prohibit a Canadian citizen or permanent resident from sponsoring a foreign family member (generally a spouse, common-law partner, parent or grandparent) if that Canadian is in receipt of social assistance for a reason other than a disability.

The Regulations define social assistance as being any benefit, whether money, goods or services, provided to or on behalf of a person by a province under a program of social assistance. It includes assistance for food, shelter, clothing, fuel, utilities, household supplies, personal requirements and health care not provided by public health care.

Section 133(1)(k) of the Regulations do provide that a person can still sponsor a foreign family member to immigrate to Canada if the sponsor receives the social assistance because of a disability.

Financial Inadmissibility

However, s. 39 of Canada Immigration and Refugee Protection Act provides that a foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themselves or any other person who is dependent on them, and have not satisfied a visa officer that adequate arrangements for care and support, other than those that involve social assistance, have been made.

As such, even if a Canadian sponsor is no longer receiving social assistance, or is receiving social assistance because of a disability, they still might be ultimately unable to sponsor their family member to immigrate to Canada.

Minimum Necessary Income

Unlike with the sponsorship of most foreign family members the Regulations provide that there is no minimum necessary income requirement to sponsor a spouse or common-law partner.

However, it is important given s. 39 of the Immigration and Refugee Protection Act that people submitting applications under to sponsor their spouses or common-law partners under either the Family Class or the Spouse or Common-Law Partner in Canada Class ensure that they do not raise any flags regarding a possible financial inadmissibility.

For example, if a Canadian sponsor’s income was below Statistics Canada’s low-income cutoff, then the foreign national should take seriously the question of what their intended occupation will be after they immigrate.   

As well, although it is not typically mandatory in a spousal or common-law partnership application, if the foreign national is the principle breadwinner in the family then they should indicate this in the application, and provide proof of the foreign spouse’s or common-law partner’s earnings.

Examples of Financial Inadmissibility

Elayathamby Rasu v Canada (Citizenship and Immigration) is a good example of how financial inadmissibility can work. There, the Canadian sponsor in the years leading up to the sponsorship of his wife earned around an average of $10,000.00 per year. In her application form, her wife, who spoke neither English or French, stated that she planned on being a housewife after she immigrated.  The visa office refused their application, a decision which the Immigration Appeal Division upheld.

Another impediment for Canadians whose income is well below to Statistics Canada’s low income cutoff for a region is where their foreign family members do not speak English or French and where their credentials may not be recognized in Canada. In Cheung v. Canada (Citizenship and Immigration)a Canadian sponsor tried to argue to the Immigration Appeal Division that his wife, who was a nurse in her country of origin, had transferrable skills. However, the Immigration Appeal Division noted that her lack of English and the fact that it was not clear that she could actually work as a nurse in Canada meant that it was not clear that the family would not need social assistance.

Finally, as the Immigration Appeal Division noted in Phuoc v. Canada (Citizenship and Immigration)it is open to immigration authorities to not consider, or at least give very weight to, evidence of Canadian income which has not been declared to the Canada Revenue Agency.

Other Disqualifications

Other things that can disqualify an otherwise eligible sponsor from sponsoring someone include:

  • The sponsor being subject to a removal order;
  • The sponsor being detained in any penitentiary, jail, reformatory, or prison;
  • The sponsor have previously been convicted of a specified offence (such as a sexual offense);
  • The sponsor being in default of spousal or child support payments;
  • The sponsor being in default of a debt owed under Canada’s Immigration and Refugee Protection Act;
  • The sponsor being an undischarged bankrupt;
  • The sponsor being in receipt of social assistance other than for reasons of a disability; and
  • The sponsor being in default of a of a previous sponsorship undertaking.

Humanitarian & Compassionate

A family that might not be able to reunify in Canada, either because the Canadian receives social assistance or because there is a probability that they will be found to be financially inadmissible to Canada, should not give up.

As with all immigration applications, it is possible that there could be sufficient humanitarian & compassionate factors to supersede the inadmissibility.

Open Marriages and the Family Class


Canadian immigration law allows people to sponsor their spouses or common-law partners to immigrate to Canada.  A question that often arises is whether open relationships count.

Multiple Spouses or Common-Law Partners

Canadian immigration law is clear that a person cannot have more than one spouse or more than one common-law partner for the purpose of immigration. .

Section 119(9)(c) of Canada’s Immigration and Refugee Protection Regulations provides that a person cannot sponsor someone if the prospective immigrant is the Canadian’s spouse and (i) the sponsor or the foreign national was, at the time of their marriage, the spouse of another person, or (ii) the sponsor has lived separate and apart from the foreign national for at least one year and either the sponsor is the common-law partner of another person or the foreign national is the common-law partner of another person.

On the issue of polygamous marriages, section 13.2 of Immigration, Refugees and Citizenship Canada’s Overseas Processing Manual 2 – Processing Members of the Family Class (the “Guidelines”) further states that:

Polygamous marriages

Officers must counsel both parties that polygamy is an offence under the Criminal Code of Canada. R117(9)(c)(i) states that a spouse is not a member of the family class if the spouse or sponsor was already married to another person at the time of the subsequent marriage. This regulation prohibits a second (or third, etc.) wife from being recognized as a spouse within the family class and provides that only the first marriage may potentially be recognized for immigration purposes.

In order for the first marriage to be recognized as legally valid under Canadian law, the couple must live together in a monogamous marriage in Canada. Common law imparts that a polygamous marriage can be converted into a monogamous marriage provided that the couple live together in a monogamous relationship from the time of arrival in Canada. This conversion is effected by the stated intention of the parties to so convert their marriage, followed by some factual evidence that they have complied—usually by divorcing the other spouses and/or by a remarriage in a form that is valid in Canada.

The decision to refuse must be based on the balance of all evidence, and not solely because the applicant did not obtain a divorce. The parties must understand that refusal to provide such evidence may result in a refusal of their application.

A polygamous second (or third, etc.) marriage cannot be converted to one of monogamy. If a husband wishes to sponsor a wife other than his first as a spouse, he must divorce his other wives and remarry the chosen wife in a form of marriage that is valid in Canada. He and his chosen spouse must sign a declaration to that effect.

When a sponsor and applicant have been practising polygamy and there are children existing from several spouses, officers must caution the sponsor and the spouse being sponsored that other spouses will not be eligible for immigration to Canada even if their respective children are sponsored. Officers must explain that separation of children from their mothers will likely be permanent, and counsel the sponsor and applicant to consider the consequences of that separation on the children. If the children nonetheless are sponsored, and if one of these children subsequently sponsors their respective mother, this mother must be cautioned that she will have no spousal status and related legal protection in Canada and that she will not be eligible for support or other benefits that also flow from marriage under Canadian law.

The prohibition against polygamy in the Regulations, and the lack of recognition of all spouses except the first, cannot be avoided by processing a second spouse as a common-law partner. Legally, it is not possible to establish a common-law relationship that meets the definition of such in terms of conjugality, where one or both parties are still living in a pre-existing conjugal relationship. The notion of conjugality has within it the requirement of monogamy; therefore, it is only possible in law to establish a new common-law relationship after a person is either divorced or separated from the spouse or common-law partner and where they have convincingly formed the intention not to continue with that previous relationship.

An already existing marriage, uninterrupted by separation, divorce or death, is a barrier that cannot be overcome when assessing a second spouse as a common-law partner. However, where such a barrier is removed (i.e., a first wife is subsequently divorced or is deceased), a husband and second wife could choose either to remarry, or could potentially meet the definition of common-law partner (i.e., where a husband was separated from a first wife and lived with a second wife in a bona fide conjugal relationship for one year after the separation from a first wife). Because a subsequent marriage (where the first is continuing) is not valid in Canadian law, persons in such a scenario would be considered as single in law and thus, they would have to remarry to be considered married under Canadian law.

Section 5.42 of the Guidelines further states that:

5.42. Simultaneous common-law or conjugal partner relationships with two or more people (polygamous-like relationships)

A common-law or conjugal partner relationship cannot be established with more than one person
at the same time. The term “conjugal” by its very nature implies exclusivity and a high degree of
commitment; a conjugal relationship cannot exist among more than two people simultaneously.
Polygamous-like relationships cannot be considered conjugal and do not qualify as common-law
or conjugal partner relationships.


Open Relationships

Suppose someone is in a common-law partnership or a marriage, but that the relationship is an open one.  IRCC’s manuals emphasize that in order for a relationship to qualify for Canadian sponsorship purposes the relationship must be conjugal, and that in order for the relationship to be conjugal the relationship must be mutually exclusive.

While the Guidelines are silent on the issue of open marriages and open relationships, the Immigration Appeal Division has held that whether a relationship is open is just one factor in determining whether a relationship is genuine or if it was entered into for Canadian immigration purposes, and that the only part of whether an open sexual relationship could result in a relationship not being conjugal would be if both parties did not mutually agree or recognize that the relationship was open.

As such, Canadians wishing to sponsor a spouse or common-law partner and who are in an open relationship with that person should simply ensure that they do an especially good job of demonstrating that they are in a conjugal relationship, by showing the interdependence in the relationship,  the co-mingling of finances, the public recognition of their relationship and the other factors mentioned in the Guidelines.



Disabled Adults and the Best Interests of the Child Analysis

“Every child is a dependent but not every dependent is a child”.

Individuals who apply for Canadian permanent residency can request that visa officers consider humanitarian & compassionate factors to exempt them from general immigration requirements.  Such factors can include the best interests of children. Pursuant to Canada’s Federal Court of Appeal in Hawthorne v. Canada (Minister of Citizenship and Immigration), the best interests of the child in a humanitarian & compassionate consideration context involves, for example, an assessment of the benefits a child would receive if a parent was not removed from Canada, in conjunction with an assessment of the difficulties the child would face if the parent was removed and the child remained in Canada, or if the child was to return to the parent’s country of origin with the parent.

Previously, the issue of whether the best interests of a child extended to adult dependents was unclear.  Some decisions stated that the determining factor was whether an adult child was dependent on his or her parents.  In Naredo v. Canada (Minister of Citizenship and Immigration), a 20-year old was determined to be a child under Canada’s Immigration and Refugee Protection Act (“IRPA“) because he was dependent on his parents. In Ramsawak v. Canada (Minister of Citizenship and Immigration),meanwhile, the Federal Court explicitly stated that the “mere fact a ‘child’ is over 18 should not automatically relieve an officer from considering his or her ‘best interests'”, and that the dependency of the individual on his/her parents is what matters.

However, in Saporsantos Leobrera v. Canada (Citizenship and Immigration) (“Saporsantos“) Justice Shore systemically and thoroughly criticized the principle that dependency determines whether one is a child.  Justice Shore’s decision has generally become the leading case on this topic, and it is now generally understood that adult dependents are not entitled to a best interests of the child consideration.

An Overview of the Decision

The applicant in Saporsantos argued that the definition of “dependent child” in section 2 of the Immigration and Refugee Protection Regulations (the “Regulations“) determined whether a person was entitled to a best interests of the child analysis.  Section 2 of the Regulations then defined “Dependent Child” as follows (emphasis added):

“dependent child”, in respect of a parent, means a child who

(a) has one of the following relationships with the parent, namely,

(i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or

(ii) is the adopted child of the parent; and

(b) is in one of the following situations of dependency, namely,

(i) is less than 22 years of age and not a spouse or common-law partner,

(ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student

(A) continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and

(B) actively pursuing a course of academic, professional or vocational training on a full-time basis, or

(iii) is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition.

Justice Shore, however, noted that section 2 of the Regulations began with the statement that:

2. The definitions in this section apply in these Regulations.

He accordingly concluded that the IRPA and its Regulations are two different pieces of legislation and that the definition of “dependent child” in the Regulations did not determine what a child for H&C consideration in IRPA.

After concluding that s. 2 of the Regulations did not determine the issue, Justice Shore noted that the using the definition of “dependent child” to interpret the meaning of  “child” is contrary to the presumption of consistent expression. The presumption of consistent expression states that:

It is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings. Another way of understanding this presumption is to say that the legislature is presumed to avoid stylistic variation.  Once a particular way of expressing a meaning has been adopted, it makes sense to infer that where a different form of expression is used, a different meaning is intended.

Justice Shore concluded that the appropriate reference to determine the meaning of “child” was not IRPA’s Regulations, but rather the United Nations Convention on the Rights of the Child (the “Convention).  The Court noted that while the Convention has not been enacted into Canadian law, the jurisprudence is clear that IRPA must be interpreted in accordance with international treaties, that the values reflected in such treaties may help inform Canadian statutory interpretation, and that the importance of the Convention has been specifically stressed in Canadian immigration jurisprudence.

The Convention defines a child as:

Article 1

For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Accordingly, Justice Shore determined that adult dependents are not entitled to best interests of the child consideration, a principle which has since been upheld in numerous Federal Court of Canada and Immigration and Refugee Board decisions.


As such, practitioners should note that disabled adult clients are not entitled to a best interests of the child analysis for H&C purposes.


Nonetheless, common sense indicates that the impact that a guardian’s separation would have on a disabled adult would still be a significant factor in determining whether there are sufficient H&C grounds to qualify for an H&C exemption.  Accordingly, while a tougher test applies, applicants should continue to stress what the interests of their adult dependent children are.

Spousal Sponsor is Pregnant with Someone Else’s Child

When someone sponsors their spouse or common-law partner to immigrate to Canada, it can often be difficult to determine how detailed one’s application should be.  Should one include every aspect of their relationship history, including marital difficulties?  What about instances of fidelity?

Several Federal Court of Canada decisions involving cases of alleged misrepresentation against applicants offer guidance on this topic.

In Chen v. Canada (Public Safety and Emergency Preparedness),(“Chen“), Mr. Chen, a Chinese citizen, married Ms. Zou, a Canadian permanent resident. Ms. Zou then sponsored Mr. Chen for permanent residence.  While Mr. Chen’s application was in processing, a friend told him that his wife had been seen “in the company” of another man in Toronto.

When Mr. Chen arrived in Canada, he discovered that his wife pregnant with another man’s child.  According to Justice Harrington, Mr. Chen was willing to forgive his wife, and asked her to get an abortion. She refused. On many occasions she made sexual overtures to him but he was both unwilling and unable to perform. Ms. Chen “taunted Ms. Zou’s lack of manhood.”

As one would expect, the marriage shortly dissolved thereafter.

After the divorce, Mr. Chen married an old flame in China.  He then attempted to sponsor her for Canadian permanent residency.

Unfortunately for Mr. Chen, Canadian immigration authorities not only disallowed his new wife’s application, but also declared Mr. Chen to be inadmissible to Canada for misrepresentation in his own immigration application.

Essentially, the Canada Border Services Agency (“CBSA“) alleged that Mr. Chen’s first marriage to Ms. Zou was not genuine, that Mr. Chen lied to enter Canada, and that his permanent residency should accordingly be revoked.  Specifically, the CBSA was suspicious because Mr. Chen did not have a wedding reception upon arriving in Canada, he did not confront his wife about the rumours before he left China, and he did not return to China once his marriage to Ms. Zou dissolved.

Justice Harrington, however, held that in determining whether a marriage is genuine for the purposes of immigration, one has to consider whether the marriage was genuine in the first place, and whether it was still genuine when the Applicant arrives at a Canadian port of entry.

Regarding Mr. Chen’s failure to disclose to immigration officials the possibility of Ms. Zou having an affair, Justice Harrington noted that at the time of the interview Ms. Zou having an affair was only a rumor, and that the duty of candour did not oblige Mr. Chen to share mere worries.  As Justice Harrington wrote,

As to not sharing the rumours with the officer at the time of his interview, what material fact did he withhold? The only fact was that he had heard rumours. Even if they were true, it did not mean that the marriage was necessarily at an end. The Divorce Act specifically contemplates the possibility of reconciliation and the divorce papers jointly signed by the parties, which are to be found in the tribunal record, contain their joint statement that reconciliation was not possible.

In Osisanwo v. Canada (Citizenship and Immigration), a similar issue arose. There, a Canadian citizen filed an application to sponsor his parents to immigrate to Canada.  He included his birth certificate in the application to show that the people that he was applying to sponsor were his parents.  Ultimately, immigration officials required DNA testing, which showed that while his mother was indeed his mother, he was not his “father’s” son. Immigration officials determined that this constituted misrepresentation.

Justice Hughes, disagreed.  He noted that DNA testing proved that the mother was really the Canadian child’s mother, that the “father” had raised the child, and that the “father” had no reason to suspect that he was not the person’s biological father. As Justice Hughes noted:

History is replete with children born to and raised by a married couple, believing it to be their own. Must an applicant seeking entry into Canada disclose every extra-marital relationship conducted at a time where there is any possibility that a child might have been fathered by someone other than the husband? Surely our society has not found itself at that point.

The above two cases should not be taken to mean that applicants can never disclose extra-marital affairs when they apply to immigrate to Canada.  In Kawech v. Canada (Citizenship and Immigration)the Federal Court of Canada had to address a situation where someone failed to disclose the existence of a long-standing mistress.

Mr. Kawech, a Tunisian, married Ms. Charlotte, a much older woman who could not have any children.  Mr. Kawech also had a long-standing mistress with whom he had children.  Mr. Kawech did not mention the existence of this affair during the processing of his spousal sponsorship application.  When immigration officials eventually discovered it, they determined that his marriage to Ms. Charlotte was not genuine.

Madam Justice Gleason agreed, and determined that while applicants did not need to disclose every extra-marital incident, that a long-standing affair could reasonably cast doubt onto the genuineness of a marriage.

These three cases, and a string of similar cases at the Immigration Appeal Division, show that when completing their immigration paperworks applicants should keep in mind that in assessing the genuineness of a marriage there may be a difference between those who have one-night stands or flings, and those who are in extra-marital relationships that last close to one year.

As also shown above, the issue of extra-marital affairs in spousal sponsorship applications also goes beyond simply impacting whether a marriage is genuine.  A father who is informed by Canadian immigration officials that he is both not the biological parent of his child, which by itself would be devastating, may also discover that he is also banned from Canada for misrepresentation because he did not disclose what he did not know in his immigration application.

Fortunately, as long as applicants can show that they both (a) did not know that they were not the biological parents of their child and (b) that this belief was reasonable, the innocent mistake defence to misrepresentation would likely apply.