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.

 


Conditional Permanent Residency for Some Spousal Sponsorships

On October 26, 2012, Citizenship and Immigration Canada (“CIC“) implemented conditional permanent residency for certain people who immigrate to Canada under the spousal-sponsorship program.  The implementation of conditional permanent residency took affect on October 25, 2012, the day prior to CIC publicizing it.   The change was not retroactive, and will not affect sponsorship applications which were received by CIC prior to October 25, 2012.

CIC has stated that the goal of introducing conditional permanent residency is to reduce instances of marriages of convenience.

What Conditional Permanent Residency Is, and Who it Applies to

Conditional permanent residency applies to individuals who are the spouse, common-law, or conjugal partner of their sponsor for two years or less when they submit their sponsorship applications and who do not have children in common with their sponsor when they submit the sponsorship applications (“Conditional Permanent Residents“).  Conditional Permanent Residents are required to cohabit in a conjugal relationship with their sponsors for a continuous period of two years after the day on which they become permanent residents (the “Condition“).  If CIC determines that Conditional Permanent Residents have breached the Condition, CIC will declare them inadmissible to Canada, and removal proceedings will be initiated.  Conditional Permanent Residents are able to appeal such decisions to the Immigration Appeal Division, which can consider humanitarian & compassionate considerations.

Specifically, the Condition applies if the couple does not have any children in common and:

  • has been married for two years or less;
  • dated for four years, but has been married for two years or less;
  • has been in a conjugal relationship for two years or less;
  • has cohabited in a common-law relationship for two years or less; or
  • has been in a common-law or conjugal relationship for more than two years and has been married for less than two years, and the person submitted an application as a spouse.

The Condition does apply if the couple

  • has been married for more than two years;
  • has been in a conjugal relationship for more than two years and the person submitted an application as a conjugal partner;
  • has cohabited in a common-law relationship for more than two years and the person submitted an application as a common-law partner; or
  • has children in common.

Having the Condition Removed and Investigations

At the end of the two-year period, a Conditional Permanent Resident does not have to submit an application to CIC to have the Condition removed.  Instead, CIC automatically removes the Condition after two years if there is no ongoing investigation into whether the Conditional Permanent Resident complied with the Condition.

CIC conducts an investigation into a Conditional Permanent Resident either as a result of a random assessment, or as a result of information that CIC receives which leads it to suspect that a Conditional Permanent Resident breached the Condition.  During an investigation into whether a Conditional Permanent Resident complied with the Condition, the immigrant must provide evidence of their compliance with the Condition.  In other words, the sponsored spouse or partner must provide evidence that he or she cohabited in a conjugal relationship with their sponsor for the two-year period following the individual immigrating to Canada.

CIC may also conduct an investigation into a permanent resident after it has already removed the Condition from the permanent resident’s file if it receives information that the Conditional Permanent Resident breached the Condition.

Permanent residents who are the subject of ongoing investigations into whether they were previously Conditional Permanent Resident who breached the Condition may not be granted citizenship.

In other words, while the Condition will be automatically removed after the two-year period (which will save most individuals the need to complete extensive paperwork), CIC can still commence an investigation and depending on the results of the investigation instigate removal proceedings against a person who it believes breached the Condition even after the two-year period has elapsed.

Exemptions 

To reiterate, the Condition will not apply to people who have been the spouse, common-law, or conjugal partner of the sponsor for two years or more, or, if they have been in such a relationship for less than two years, have a child together.

The Condition will also cease to apply to Conditional Permanent Residents where there is evidence that the sponsor died during the two-year period, in instances where there is evidence of abuse or neglect from the sponsor, or in instances of a failure by the sponsor to protect the Conditional Permanent Resident from abuse or neglect by another person related to the sponsor.

CIC has provided extensive definitions of what consitutes “abuse” or “neglect” that are beyond the scope of this newsletter.  We have provided at the end of this newsletter a link to the relevant CIC Operational Bulletin which discusses the introduction of conditional permanent residency. . 

More information on conditional permanent residency can be found in Operational Bulletin 480.

We have reproduced the training material for Operational Bulletin 480 below. Please note that the reproduction did not occur with the affiliation of the Government of Canada, and should not be viewed as legal advice.

 


The Inside Canada vs. Outside Canada Sponsorship Process

One of the quirkier features of Canadian immigration law is the distinction between what is generally referred to as the “Inside-Canada Sponsorship” process and the “Outside-Canada Sponsorship” process.  The biggest myth is that if a couple is residing in Canada then they must use the “Inside-Canada Sponsorship” process.  This is not true.  However, each program contains advantages and disadvantages vis-a-vis the other, and I have provided a list of the key features and requirements of each program below.

 

Inside-Canada Process

Outside-Canada Process

The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit. The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit.
The spouse/common-law partner must reside together in Canada. The spouse/common-law partner do not have to reside together in Canada.  As well, once a common-law relationship is established, periods of separation will not change their common-law status if there is a short separation that does not sever the common-law partnership.
The applicant must live with the spouse/common-law partner inside Canada during the duration of processing. The applicant can live with the spouse/common-law partner inside Canada during the duration of processing, but does not have to.
The immigration paperwork is sent to a processing center inside Canada, and remains in Canada. The immigration paperwork is sent to a processing center inside Canada, and it then may be transferred to a visa post outside of Canada.
If the applicant has valid temporary resident status in Canada, and submits an application to extend that status inside Canada with the permanent residence application, then the applicant will have implied status during the processing of the permanent residence application, provided he/she does not leave Canada. If the applicant has valid temporary resident status in Canada, he/she must maintain his/her status. The process is separate from the permanent residence application, and there is no implied status for the duration of processing.
Citizenship and Immigration Canada will process the application even if the applicant does not have valid temporary resident status in Canada.  If an individual has an application in processing, and is detained by the Canada Border Services Agency for being without status, then the applicant will generally benefit from a 60 day deferral period, and Citizenship and Immigration Canada will endeavour to process the permanent residence application within 60 days. Citizenship and Immigration Canada will not process the application if the applicant does not have valid temporary resident status in Canada.
The current processing time is 27 months.  At the 17th month mark, the Applicant will receive “first-stage approval” if it is determined that the spouse/common-law partnership is bona fide, and the applicant will be entitled to an open work permit. Processing times vary depending on the visa post, and range from 10 months to 38 months.   There is no first-stage approval for the issuance of open work permits.
There is currently a pilot project in place to provide work permits to applicants who have valid temporary resident status after 4 months of processing. The permanent residence application is completely separate from any ability to work in Canada.
There is no appeal right to the Immigration Appeal Division.  The only recourse is an application to Federal Court for judicial review. There is a general appeal right to the Immigration Appeal Division, except for refusals based on serious criminality, terrorism, national security, espionage, and similar serious matters.  The only recourse in those situations is an application to Federal Court for judicial review.
If the applicant leaves Canada and is for whatever reason denied re-entry by the Canada Border Services Agency, then the permanent residence application will be refused, and the applicant must start over from outside Canada. If the applicant leaves Canada and is for whatever reason denied re-entry by the Canada Border Services Agency, this will generally not impact the permanent residence application.

Guest Post: The Undertaking & Social Assistance Debt

(Note from Steven: I met John at the Canadian Bar Association British Columbia branch annual conference in San Francisco.  He is currently involved in some fascinating litigation representing an individual who sponsored a spouse only to watch her  immediately divorce him after she immigrated.  She also left him on the hook for tens of thousands of dollars in social assistance payments.  I invited John to some write articles for this blog, and here is the second of what will hopefully be many into this issue.)

Sponsoring a spouse or fiancé into Canada requires signing an undertaking with Immigration and Citizenship Canada. The undertaking explicitly states that the sponsoring relative must provide the necessities of life, even if there is a change of circumstance including divorce. The law concerning the undertaking was recently set out by the Supreme Court of Canada in a case called Canada (Attorney General) v. Mavi.[1]

In Mavi, there were eight petitioners who were found to owe the government for social assistance paid to each of they’re sponsored relatives because of the terms of the undertaking. However, none of the sponsored relatives were divorced spouses. An argument can be made that a divorce order that addresses maintenance releases the sponsoring spouse from the undertaking. The courts have yet to determine whether the sponsoring spouse or the sponsored spouse should be responsible for reimbursing the government where a divorce order states that either maintenance is not to be provided by the sponsoring spouse or sets it at a specific amount.

The Court did hold in Mavi that the undertaking is more than just a contract, it is an agreement governed by the Immigration and Refugee Protection Act (“IRPA”) and that a sponsor is required by section 145(2) of IRPA to pay for any amount owing due to an undertaking[2] The Court held that the government does not owe the sponsoring spouse a duty to inform them that the sponsored spouse is receiving social assistance.[3] The Court also held that the government may defer payment of the debt but cannot forgive it.[4]

If the Ministry of Social Development (the “Ministry”) issues social assistance to a sponsored spouse and then attempts to collect it from the sponsoring spouse, that spouse has several options to recoup or minimize their loss. One option is for the sponsoring spouse to negotiate a payment schedule with the Ministry.

While the Ministry cannot forgive the debt associated with the social assistance, the Provincial Cabinet can forgive some debts owed to it under section 18 of the Financial Administration Act [RSBC] Chapter 138. Regrettably, the government of British Columbia has not enacted a regulation stating how such an application is to be made. In the absence of such a regulation, an application for the forgiveness of debt can be made directly to Cabinet. However, in today’s fiscal climate, it is unlikely that the government will forgive debt.

A third option is to sue your ex-spouse for the tort of deceit, where a divorce order or separation agreement has set the amount of maintenance. The sponsored spouse knows the sponsoring spouse is responsible for reimbursing the government any social assistance they receive, as they also signed the undertaking. The sponsored spouse knows that the divorce order has addressed maintenance (i.e. monthly maintenance, lump sum maintenance, or no maintenance). They know that maintenance is to provide the necessities of life. By applying for social assistance, they are aware, or should be, that they are seeking back door maintenance contrary to their divorce order. In such circumstances, the tort of deceit could well provide a remedy for social assistance debt incurred by an ex-spouse.

There may also be a fourth remedy for the sponsoring spouse, which will be outlined in our next posting.

– John Nelson was called to the British Columbia bar in 2011. He is a sole practitioner serving both Victoria and Vancouver in the practice areas of civil litigation, family law, and administrative law. He can be reached at nelson@johnnelsonlaw.ca.


[1] Canada (Attorney General) v. Mavi, 2011 SCC 30 [Mavi].

[2] Ibid. at paras. 50 – 53.

[3] Ibid. at para. 76.

[4] Ibid. at para. 70.


Guest Post: Safeguarding a Divorce Order Against Social Assistance Debt

(Note from Steven: I met John at the Canadian Bar Association British Columbia branch annual conference in San Francisco.  He is currently involved in some fascinating litigation representing an individual who sponsored a spouse only to watch her  immediately divorce him after she immigrated.  She also left him on the hook for tens of thousands of dollars in social assistance payments.  I invited John to some write articles for this blog, and here is the third of what will hopefully be many into this issue.)

The issue of resolving a fraudulent marriage tied to an immigration application is completely separate from the need to get divorced. Fraudulent marriage is not grounds for a divorce and it is not necessary to prove that marriage was fraudulent in order to get a divorce. The issue of the fraudulent marriage can only be dealt with in civil court, not family, court as explained in an earlier post.

Generally speaking, it is understood that the sponsored spouse may receive social assistance or they may receive maintenance (i.e. spousal support), but they cannot receive both. Where the divorce order or separation agreement explicitly states that maintenance is not to be provided or has been provided in a lump sum payment, it can be argued that the sponsoring spouse should not be responsible for social assistance debt despite the undertaking.

It would be prudent for family law lawyers who represent a sponsoring spouse in a family matter to inquire about whether the sponsored spouse has received social assistance and determine for how long the sponsoring spouse is obligated by the undertaking to provide the necessities of life. Ideally, the divorce order should explicitly forbid the sponsored spouse from applying for social assistance during the term of the undertaking.

For sponsoring spouses who are getting divorced, it is prudent to bring the issue of social assistance debt to your lawyer’s attention and have it dealt with in the divorce order.

There may be a cause of action for professional negligence against the sponsoring spouse’s family law lawyer in a situation where a sponsoring spouse has obtained a divorce order and the order does not provide an indemnity against social assistance debt.

To successfully sue for negligence, a party must prove that:

  1. the plaintiff suffered a loss;
  2. the loss was caused by the defendant;
  3. the defendant’s conduct was a breach of the standard of care;
  4. the law recognizes that there was a duty owed to the plaintiff by the defendant;
  5. the defendant’s conduct caused the loss; and
  6. the plaintiff’s conduct did not contribute to the loss

In cases of professional negligence, it is necessary to prove that the lawyer failed to provide the standard of care expected of a reasonably competent lawyer. It is unclear whether such a cause of action would be successful, although an argument can be made that a family law lawyer does owe a duty to consider their client’s liability for social assistance debt in cases where the client sponsored their spouse’s immigration application. Where a sponsoring spouse does wish to sue to recover a loss caused by social assistance debt, they may wish to consider whether or not their family lawyer was negligent in providing them with advice.

– John Nelson was called to the British Columbia bar in 2011. He is a sole practitioner serving both Victoria and Vancouver in the practice areas of civil litigation, family law, and administrative law. He can be reached at nelson@johnnelsonlaw.ca.


Guest Post: Suing your Spouse for Fraudulent Marriage

(Note from Steven: I met John at the Canadian Bar Association British Columbia branch annual conference in San Francisco.  He is currently involved in some fascinating litigation representing an individual who sponsored a spouse only to watch her  immediately divorce him after she immigrated.  She also left him on the hook for tens of thousands of dollars in social assistance payments.  I invited John to some write articles for this blog, and here is the first of what will hopefully be many into this issue.)

Marriage fraud happens. You meet a nice person. They live in another country. You get along. They or one of their relatives suggest that you get married. So you get married. You sponsor your spouse’s immigration to Canada and sign an undertaking that you will supply the necessities of life for three years and pay any social assistance that that person takes from the government. All of a sudden, your new spouse leaves. And doesn’t come back. No explanation. No fight. It’s just over. You realize that they never had any intention of staying married. And in the worst case scenario, you get a bill three years later from the government for social assistance that your ex-spouse received without your knowledge or consent.

Where your spouse has separated from you and you suspect that the marriage was fraudulent, there are steps you can take to protect yourself:

  1. Inform Citizenship and Immigration Canada. Under new rules effective October 25th, 2012, a sponsored spouse who does not legitimately live with their spouse for two years may be deported.
  2. File for divorce.
  3. Find out if your spouse has applied for or is receiving social assistance.
  4. Consult a lawyer to determine if you can sue your spouse for fraudulent misrepresentation of marriage.

In 1985, the BC Legislature amended the Law and Equity Act to allow one spouse to sue another for damages. The causes of action are very limited, as much of the old common law on domestic relations was extinguished by statute. You can’t sue your spouse for damages for interfering with child access,[1] failing to pay child support,[2] being a jerk,[3] or having an extramarital affair.[4]

But the courts have held there are some causes of action that can proceed. One of them is fraudulent misrepresentation (tort of deceit) of marriage. In Raju v. Kumar,[5] a plaintiff wife successfully sued her husband on the grounds that he had fraudulently misrepresented his intent to be in a permanent marriage. The court found that the husband had a lover prior to meeting his wife, entered into the marriage as a means to enter Canada under his wife’s sponsorship, and that the husband was keeping open his option of either remaining in his country of origin with his lover or bringing her to Canada.

The wife received damages for the cost of pursuing the defendant’s immigration to Canada and $10,000 in damages for “hurt feelings, humiliation, inconvenience and postponement of the opportunity to marry another man while she was still capable of bearing children.”[6]  The four elements of the tort of deceit that must be proved at trial are: a false representation, knowledge of its falsity, an intent to deceive and reliance by the plaintiff with resulting damage.[7] These are hard facts to prove, but if it can be done, there may be a remedy in tort for your fraudulent marriage.

– John Nelson was called to the British Columbia bar in 2011. He is a sole practitioner serving both Victoria and Vancouver in the practice areas of civil litigation, family law, and administrative law. He can be reached at nelson@johnnelsonlaw.ca.


[1] Frame v. Smith, [1987] 2 S.C.R. 99.

[2] Louie v. Lastman (2001), 199 D.L.R. (4th) 741 (O.S.C.J.)

[3] Kaddoura v. Hammond (1998), 168 D.L.R. (4th) 503 (O.C.-G.D.).

[4] Family Relations Act, R.S.B.C. 1996 c. 128 s. 123.

[5] Raju v. Kumar, 2006 BCSC 439.

[6] Ibid. at para. 88.

[7] Ibid. at para. 69.


Withdrawing a Spousal Sponsorship

The first question on the Application to Sponsor and Undertaking form asks…1) If you are found ineligible to sponsor, indicate whether you want to withdraw your sponsorship. All processing fees less $75 will be repaid OR to proceed with the application for permanent residence.
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