Genuineness and Primary Purpose – The Disjunctive Test – Section 4(1) of the Regulations

Regulation 4(1) of the Immigration and Refugee Protection Regulations (“IRPR“) state that:

4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or

(b) is not genuine.

There has been developing jurisprudence on the disjunctive nature of IRPR r. 4(1), including a recent Federal Court certified question on whether IRPR 4(1)(a) is ultra vires the Immigration and Refugee Protection Act (“IRPA“), which provides that:

The objectives of this Act with respect to immigration are to see that families are reunited in Canada.

Continue reading “Genuineness and Primary Purpose – The Disjunctive Test – Section 4(1) of the Regulations”


Financial Requirements to Sponsor Family Members

People wishing to sponsor family members to immigrate to Canada generally have to meet numerous requirements.  These include, but are not limited to:

  • Not be subject to a removal order;
  • Not be detained in any penitentiary, jail, reformatory, or prison;
  • Not be in default in respect of any previous undertaking;
  • Not be an undischarged bankrupt;
  • Not be in receipt of social assistance other than for a disability; and
  • Meet the minimum necessary income requirements.

The Minimum Income Requirement

The financial requirement for sponsors is necessary to ensure that sponsors can support their sponsorees for the duration of their sponsorship undertaking.  People sponsoring spouses, common-law partners, conjugal partners, or dependent children are exempted from this requirement.

For all other family sponsorship applications, the sponsor’s income must meet the minimum necessary income requirement as identified annually by Statistics Canada in Low Income Cut Off levels (“LICO”).  The sponsor must meet the cut-off to support all members of a sponsor’s own family, the sponsored person, and the sponsored person’s family members.  This includes non-accompanying family members.

The current LICO rates for 2011 outside of Quebec are:

Size of Family Unit LICO
1 person (sponsor) $22,229
2 people $27,674
3 people $34,022
4 people $41,307
5 people $46,850
6 people $52,838
7 people $58,827
Each additional person $5,989

Excluded from these amounts include, amongst other things, any amounts paid to the sponsor under the Employment Insurance Act, other than special benefits.

The spouse or common-law partner of a sponsor may co-sign an undertaking to help meet income requirements by pooling resources.  Other family members may not co-sign.  A co-signer must meet the same requirements and are subject to the same bars as the sponsor.  They assume the same obligations as the sponsor and become jointly and severally or solidary liable if there is default.

Pursuant to OB 324, and resulting from the Federal Court’s decision in Dokaj v. Canada, where a family member is added to the sponsor’s family during the processing of a sponsorship application, then the changes to both the size of the family unit and the family’s income must be considered where the additional family member is a spouse, common-law partner, or conjugal partner who becomes a co-signer.

Changes in Circumstances

It is extremely important to note that rule 133(1) of the Immigration and Refugee Protection Regulations requires that a sponsor has to be in compliance with the income requirements from the day on which the application is submitted until the day on which a decision is made on the application.

Accordingly, a co-signer may not be added to the sponsorship application if the sponsorship was already assessed and at that assessment, the sponsor failed to meet the sponsorship requirements.

Summary of When a Co-Signer can be Added to an Existing Sponsorship Application

The following is from OB 324, and offers a useful summary for when co-signers can be added to existing sponsorship application.  It also demonstrates how rule 133(1) of the Regulations are interpreted.

  1. In all cases, the sponsor must have met all sponsorship eligibility requirements at the initial sponsorship assessment.
  2. In all cases, a co-signer may not be added after a negative (Not Met) recommendation has been rendered on the initial assessment.
  3. In all cases, a co-signer may not be added after a negative (Not Met) recommendation has been rendered on a reassessment.
  4. CPC-M will add a co-signer after the initial assessment, even if the sponsor did not choose to include the co-signer at initial filing of the sponsorship application, as long as the sponsor met the original financial assessment and all other eligibility requirements on his own.
  5. If the sponsor is given the opportunity to add a co-signer following a change in circumstances and chooses not to do so and a negative recommendation is rendered, on a reassessment, the sponsor cannot then request to add a co-signer.
  6. Although the facts in the Dokaj case were specific to the sponsorship of parents, the re-interpretation of the regulations, allowing the addition of the co-signer after filing, will apply to all family class categories where the financial test is applicable.

 


Determining Whether a Marriage Is Genuine

Arguably the most important part of any spousal or common-law sponsorship application is establishing that a relationship is not encompassed by s. 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR”), which provides that:

4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or

(b) is not genuine.

Despite the importance of applicants demonstrating that their relationship is genuine and not entered into primarily for the purpose of acquiring any status or privilege under the Immigration and Refugee Protection Act (the “Act”), there are no set criteria which determine whether an application is bona-fide. As the Federal Court noted in Koffi v. Canada (Citizenship and Immigration), 2014 FC 7 (citations removed)

It is well established in the case law of this Court that there is no specific criterion, or even a set of criteria, to determine whether a marriage is genuine pursuant to section 4 of the Immigration and Refugee Protection Regulations. It is exclusively up to the visa officer to determine the relative weight to grant each of the factors, based on the facts, to ensure the inherent logic of the applicant’s story according to the particular clues, or references made by the applicant himself, meaning the encyclopedia of references, a dictionary of terms, a picture gallery of the applicant’s file in addition to an assessment to determine whether the facts on file taken together create harmony or discord.

Notwithstanding the fact that there is no set criteria for IRPR r. 4(1) analysis, numerous Immigration Appeal Division (“IAD”) decisions have noted that a non-exhausted list of factors includes:

  • the compatibility of the spouses;
  • the development of the relationship;
  • communication between the appellant and the applicant;
  • financial support;
  • the spouses’ knowledge of each other;
  • visits by the appellant to see the applicant;
  • the presence of the applicant’s family in Canada;
  • the applicant’s previous attempts to land in Canada;
  • previous marriages; and
  • the cultural context.

While the burden of proof is on an applicant to establish that a relationship is bona-fide, officers should not presume at the outset that a relationship is mala-fide. As well, while visa officers are entitled to consider and weigh numerous factors when assessing a sponsorship application, the jurisprudence is also clear that officers must be alert to an applicant’s unique circumstances, including cultural customs, dating habits, and financial circumstances.

For example, as the Federal Court noted in Lhundup v. Canada (Immigration, Refugees, and Citizenship),  2017 FC 224, it would be unreasonable for an immigration officer to unduly focus on the difference in age between a married couple.

Immigration, Refugees and Citizenship Canada has produced training materials to officers on how to spot non-genuine relationships.  Thankfully, most officers show much more common sense in assessing these applications than what their training materials suggests should be how they assess applications.


Family Class Undertakings

On June 10, 2011, the Supreme Court of Canada released its decision in Canada (Attorney General) v. Mavi.  The case involved an appeal from numerous Ontario residents regarding relief from the sponsorship undertakings that they had signed to sponsor a family class member.

Potential immigrants under the family class are only eligible to apply for permanent residency once a Canadian citizen’s or permanent resident’s application to sponsor them has been approved.  Family class immigrants are not assessed independently on their ability to support themselves, as is the case with other immigrants.  The burden of showing sufficiently financial wherewithal lies with the sponsor.

I have yet to witness a case where a client showed concern about the sponsorship undertaking.  Usually the undertaking is treated as a joke, and sponsors normally tease their spouses / family members about not becoming “welfare bums”.  However, as the cases of the individuals in Mavi show, breaches of the sponsorship undertaking can often lead to huge debts.  Mavi involved individuals in the following circumstances:

  • Mr. D sponsored his fiancee in 2002.  When she arrived in Canada she refused to live with him or marry him.  Mr. D tried to have his former fiance deported, however, her appeal was successful.  Unbeknown to him, she later went on social assistance.  In 2007, the Ontario government informed him that he owed $10,510.65 for breach of the undertaking.
  • Ms. E sponsored her father, mothers, and two brothers in 1995.  Her husband was a co-signatory.  She later left him because of abuse.  She went on social assistance afterward, as did her father, and one brother.  In 2006 she was informed that she owed the Ontario government $94,242.16 for breach of the undertaking.
  • Mr. G sponsored his mother in 1999.  He subsequently lost his job.  His mother applied for social assistance.  In June 2007 he was informed that he owed $54,426.39.
  • Mr. H’s wife arrived in Canada in 2006.  She briefly lived with him, then cut off contact.  Unbeknown to him, she later remarried, and then went on welfare.  In 2007, he was informed that he owed the Ontario government $10,547.65 for breach of the undertaking.
  • Ms. H sponsored her mother, who shortly after had a stroke.  She applied for benefits for her mother’s institutional care.  She later learned that she owed the government $54,559.99.
  • Mr. M sponsored his father in 1996.  After his father arrived, they had a falling out.  In 2005 he learned that his dad had gone on social assistance.  He owed the Ontario government $17,818.08.
  • Mr. Z’s spouse arrived in Canada in 2000, only to leave a few weeks later and remarry.  In 2007, Mr. Z found out that she had gone on welfare, and that he owed the Ontario government $22,158.02.

The provincial governments are generally very strict about enforcing these obligations, and the courts too have not been very forgiving.  In paragraph 41 of the Mavi decision, Justice Binnie noted that:

Family reunification is based on the essential condition that in exchange for admission to this country the needs of the immigrant will be looked after by the sponsor, not by the public purse.  Sponsors undertake these obligations in writing.  They understand or ought to understand from the outset that default may have serious financial consequences for them.

The court then went on to articulate some principles that underlie sponsorship undertaking debt collections.  Before signing the sponsorship undertaking, sponsors should therefore be aware of the following principles which I have pulled out from the judgement:

  • The government has the ability to delay enforcement action having regrading to the sponsor’s circumstances and to enter into agreements respecting terms of payment.  As the court noted in paragraph 59, “the amount and terms of repayment are within the discretion of the government decision maker. An agreement requiring a sponsor to pay $20 a month on a $20,000 debt may never result in the full amount being paid, but it would nonetheless be an agreement which the government is authorized to make”.
  • The government does not, however, have the ability to simply forgive the debt.  Section 135 of the Immigration and Refugee Protection Regulations simply does not allow for write-offs, but only “deferred enforcement” along the lines of the above point.
  • The deferral of enforcement can be ended if the sponsor’s financial circumstances change.  The decision notes the example of a sponsor winning the lottery.
  • Prior to filing a certificate of debt with the Federal Court, the government must notify the sponsor of its claim, provide the sponsor with an opportunity to explain in writing his or her relevant personal and financial circumstances that are said to mitigate against immediate collection, to consider any relevant circumstances brought to its attention (while keeping in mind that the undertaking was the essential condition precedent to allowing the sponsored immigrant to become a permanent resident), and to notify the sponsor of the government’s decision regarding how it is going to collect the debt.
  • In carrying out the obligations above, the government does not have an obligation to provide written reasons.
  • There is no hearing, and no appeal procedure.
  • In the case of “rogue family members”, or family-class immigrants that have cut off contact with their sponsors, the government does not have a duty to advise sponsors that the rogue family member has started to receive social assistance.  Pursuant to paragraph 76, “the risk of a rogue relative properly lies on the sponsor, not the taxpayer”.

British Columbia and Sponsorship Default Debts

In British Columbia, the Ministry of Finance, Non-Tax Collections collects unpaid sponsorship default debts on behalf of the Ministry of Social Development. I have had experience contacting them on behalf of individuals before, and my experience has been that they already follow the principles articulated in Mavi.  They are quite flexible when it comes to scheduling payments over a period of time, however, they are unwilling / unable to simply forgive amounts owed.  When I advised one representative that my client simply could not pay, the respond was not surprising: “declare bankruptcy”.

Individuals that are contacted by the Ministry of Finance are provided with the opportunity to explain their financial circumstances, and to arrange a payment schedule.

If payments are not made, then the Ministry may take the following actions:

  • place a notice of Crown Debt on your property;
  • issue a demand on your wages, bank account or other accounts;
  • set off funds owed to you by the provincial or federal government;
  • issue a Small Claims Action (less than $25,000) or a Supreme Court Action (over $25,000);
  • file a Payment Order or Default Order in Small Claims Court or Supreme Court; and/or
  • seize and sell your assets.

Illegally Obtained Welfare

Finally, as the Ontario Superior Court of Justice found in Wright v. Wright, it is important to note that a sponsor will need to repay a provincial government even if the permanent resident obtained the welfare payment through fraud.

 


Who Can Be Sponsored

One of the questions that we are most frequently asked is which family members can be sponsored under Canada’s family reunification programs.  Most people rightly assume that Canadian citizens and/or permanent residents can sponsor their spouses, children, and parents.  However, many also wonder about sponsoring siblings, cousins, nieces, nephews, etc.

Canada’s Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR“), provide that a Canadian citizen / permanent resident (the “Sponsor“) may sponsor the Sponsor’s spouse, common-law partner or conjugal partner.  A “spouse” is the Sponsor’s husband or wife.  A “common-law partner” is someone who the Sponsor has cohabited with in a conjugal relationship for a period of at least one year. A “conjugal partner” is someone who the Sponsor has been in a conjugal relationship with for a period of at least one year, but who for exceptional circumstances the Sponsor has neither been able to marry nor cohabit with.  It most commonly applies to same-sex relationships where the couple is unable to cohabit or marry due to fear of persecution or penal control.

IRPR also provides that a Sponsor may sponsor the Sponsor’s dependent child.  A “dependent child” is a child who is the biological or adopted child of the Sponsor, and who is under the age of 19 and is not married or in a common-law partnership.  If the child is over 19, then the child must have depended substantially on the financial support of the parent since before the age of 19, and be unable to be financially self-supporting due to a physical or mental condition.

A Sponsor may also sponsor his/her mother, father, grandfather, or grandmother.

While the above three scenarios are commonly well known, there are other family relationships that are eligible for sponsorship.

Continue reading “Who Can Be Sponsored”


Same-sex sponsorship: apply as a spouse, common-law or conjugal partner

The following article appeared in the August edition of The Canadian Immigrant.

In June 2015, the United States Supreme Court in Obergefell v. Hodges required that all U.S. states license marriages between two people of the same sex, essentially legalizing same-sex marriage in America. Two years before, the United States Supreme Court in United States v. Windsor ended the disparate treatment of same-sex and opposite-sex couples in matters of immigration.

The two United States Supreme Court decisions will likely result in American immigration policy more closely resembling that in Canada, where same-sex marriage has been legal since July 20, 2005.

In Canada, people in same-sex and opposite-sex relationships have three options to sponsor their partner from abroad; they can either apply as spouses, common-law partners or conjugal partners.

 Three partnership options

The spouse category is straightforward, and applies to anyone who was legally married, provided that both parties to the marriage are over the age of 16, and that both parties voluntarily entered the marriage and had the capacity to do so. There are specific exceptions to this, including marriages conducted through proxy, telephone, internet and fax, as well as polygamous and bigamous marriages.

The common-law partner category requires people in relationships who have not married to have cohabited together for at least one year in a conjugal relationship. It requires continuous cohabitation for one year, not intermittent cohabitation adding up to one year. While cohabitation means living together continuously, short periods of separation due to work, business travel, family obligations, etc., are permitted. After the one-year period of cohabitation has been established, the partners may live apart for periods of time without legally breaking the cohabitation, provided that there is evidence that both parties are continuing the relationship.

The conjugal partner category is for individuals who have been in a relationship for at least one year and who are not married nor have been able to cohabit for one year. The reason for not living together must be exceptional, and the conjugal partner category is typically used by people in same-sex relationships in countries where such relationships can lead to persecution, which for the purpose of this category includes ostracism, loss of employment, inability to find shelter or other sanctions. Typically, there also must be a Canadian immigration impediment to the foreign national partner living in Canada as a visitor, including the inability or unlikelihood of obtaining a visa.

Canada does not have a fiancé or an intended common-law partner category.

A genuine relationship

Regardless of which category is used, all applicants must demonstrate that their relationship is genuine and that the primary purpose is not simply to immigrate to Canada.

To establish genuineness, couples must show that they share a mutual commitment to a shared life to the exclusion of all others. It includes the requirement of monogamy, and applicants are required to demonstrate that they are interdependent physically, emotionally, financially and socially. (On a side note, persons who are married can be in a common-law partnership or a conjugal partnership with someone else, provided that their marriage has broken down and a physical separation has occurred.)

Establishing the primary purpose of a relationship is similar to establishing genuineness. However, while the genuineness analysis is based on the present, the primary purpose test looks at the intentions of both parties to the relationship at the time the relationship began.

All couples equal

At this point, the existence of same-sex relationships has become so ingrained in Canadian immigration policy that in the context of sponsorship applications, most practitioners and visa officers probably don’t distinguish whatsoever in how they assess couples in same-sex relationships as opposed to opposite-sex ones. As a Canadian, that makes me proud.



Court Certifies Question on Judicial Review of 117(9)(d) Refusals – [Updated August 6]

The Federal Court (the “Court“) in Habtenkiel v. Canada (Citizenship and Immigration), has certified a question that if answered in the affirmative would seem to pretty much shut the door on humanitarian & compassionate (“H&C“) appeals of s. 117(9)(d) refusals.  The certified question is:

In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration)2009 FCA 288 (CanLII), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227?

That question is long and confusing, but lets break it down.

Continue reading “Court Certifies Question on Judicial Review of 117(9)(d) Refusals – [Updated August 6]”