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.