On May 27th the Federal Court (the “Court“) released its decision in Chen v. Canada (Public Safety and Emergency Preparedness), (2010 FC 584) (“Chen“). The decision involves a unique situation of someone who was sponsored by a wife who was pregnant with her lover’s baby.
Mr. C, a Chinese citizen, married Ms. Z, a Canadian Resident. She then sponsored him for permanent residence. While Mr. C was awaiting his papers, a friend told him that his wife had been seen “in the company” of another man in Toronto.
When Mr. C arrived in Canada, he found his wife pregnant with another man’s child. According to Justice Harrington,
He was willing to forgive, 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. She taunted his lack of manhood. (Paragraph 5)
As one would expect, the marriage shortly dissolved thereafter.
After the divorce, Mr. C married an old flame in China. He then attempted to sponsor her. Unfortunately for him, Canadian immigration authorities not only disallowed this second application, but also declared him inadmissible to Canada for misrepresentation in the first application. Essentially, the Canada Border Services Agency (“CBSA“) alleged that Mr. C’s first marriage to Ms. Z was not genuine, that Mr. C lied to enter Canada, and that his permanent residency should be revoked. Specifically, the CBSA was suspicious because Mr. C 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. Z dissolved.
The Court, however, noted 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. C’s failure to disclose to the interviewing officer the possibility of Ms. Z having an affair, the Court noted that at the time of the interview Ms. Z having an affair was only a rumor, and that the duty of candour did not oblige Mr. C to share mere worries.
Regarding Mr. C’s failure to go back to China after the dissolution of his marriage, Justice Harrington noted that:
As to not immediately returning to China when the marriage broke down, he said that as a cuckold he would be the laughing stock of his village. There was no evidence to contradict that statement.
Chen might not set any broad new legal precedents. However, it is a good illustration of the parameters of the duty of candour that all applicants face in their applications to enter and/or immigrate to Canada.