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.

 


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: 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.