Borderlines Podcast Episode 3 – Raj Sharma on Marriage Fraud

In the 3rd episode of Borderlines, Raj Sharma joined Peter Edelmann and I to discuss marriage fraud.

Raj Sharma is the managing partner of Stewart Sharma Harsanyi.  He is a well known commentator on immigration law. In addition to his active blog and numerous presentations that he has given at immigration conferences and seminars, he has written numerous op-eds on immigration, diversity and multi-culturalism that have been published in many manjor Canadian newspapers. He has debated Martin Collacott of the Fraser Institute and Centre for Immigration Reform on whether Canada accepts too many immigrants; Deepak Obhrai (MP and Parliamentary Secretary) on additional and stricter language requirements for citizens; David Seymour of the Manning Centre on whether Canada’s new immigration policy is too exclusionary; Imam Syed Soharwardy on honour crimes in Canada; and a CSIS agent on the profiling of Muslims.

2:33 – 44:20 – We discuss marriage fraud, and how the previous government introduced several measures to try and prevent it. These measures included introducing a disjunctive test in which a marriage would not facilitate immigration if the marriage was not genuine or if the marriage had been entered into primarily for the purpose of immigration. It also included the introduction of conditional permanent residency, in which immigrants who immigrate to Canada as a result of a marriage or common-law relationship would lose their permanent resident status if the relationship broke down within 2 years of immigrating. Finally, the previous Conservative Government of Canada also introduced a five year spousal sponsorship bar, in which a permanent resident who immigrated after marrying a Canadian could not sponsor a new spouse or common-law partner for five years after immigrating.

Raj was a fantastic guest to have for this topic, given that he represented a Canadian citizen who sued the Canada Border Services Agency to compel them to complete an investigation into whether that person had been the victim of a marriage fraud. Raj during the podcast provided an overview of this case, Zaghbib v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 182. Peter then raised the difficult question of “where do you draw the line?” If a Canadian can compel CBSA to remove someone from Canada for marriage fraud, can a company compel CBSA to do the same for a competitor where the Canadian company knows that that the competitor has engaged in foreign worker fraud? What about an average citizen trying to compel the Vancouver Police Department for visiting the Amsterdam Café and smoking marijuana?

I know I’m biased, but when listening to this podcast after it was recorded I was struck by how this may have been the best and most comprehensive 40 minute discussion on the topic of marriage fraud in the Canadian immigration landscape that I have heard.

44:20 – 49:30 – Peter discusses the ongoing detention situation in Canada, where immigration detainees are often held in provincial prisons. Minister Goodale recently wrote an article in the Huffington Post in which he set out a number of goals in immigration detention, but at the same time also provided justification for the ongoing detention. Peter also showed us a recent tender that CBSA has put out in which they are seeking feedback on alternatives to detention. After providing a brief overview of why people would be detained in Canada, we discuss what possible alternatives there could be. The word “Kafkaesque” makes its first appearance in the podcast, although I’m sure not it’s last.

49:30 – 55:13 Continuing with the theme of detention, we discuss the Federal Court’s recently certified question in Canada (Public Safety and Emergency Preparedness) v. Lunyamila, 2016 FC 324, in which the Federal Court asked whether it can usurp the powers of the Immigration Division to either order release or continue detention.

51:13 – 56:00 – Finally, we conclude by providing a statistic of how what percentage of people who submitted applications to Immigration, Refugees and Citizenship Canada had representatives.

2014reps

 

 


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.