Spousal Sponsorship and Social Assistance

Photo by George Vnoucek

Section 133 of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) prohibit a Canadian citizen or permanent resident from sponsoring a foreign family member (generally a spouse, common-law partner, parent or grandparent) if that Canadian is in receipt of social assistance for a reason other than a disability.

The Regulations define social assistance as being any benefit, whether money, goods or services, provided to or on behalf of a person by a province under a program of social assistance. It includes assistance for food, shelter, clothing, fuel, utilities, household supplies, personal requirements and health care not provided by public health care.

Section 133(1)(k) of the Regulations do provide that a person can still sponsor a foreign family member to immigrate to Canada if the sponsor receives the social assistance because of a disability.

Financial Inadmissibility

However, s. 39 of Canada Immigration and Refugee Protection Act provides that a foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themselves or any other person who is dependent on them, and have not satisfied a visa officer that adequate arrangements for care and support, other than those that involve social assistance, have been made.

As such, even if a Canadian sponsor is no longer receiving social assistance, or is receiving social assistance because of a disability, they still might be ultimately unable to sponsor their family member to immigrate to Canada.

Minimum Necessary Income

Unlike with the sponsorship of most foreign family members the Regulations provide that there is no minimum necessary income requirement to sponsor a spouse or common-law partner.

However, it is important given s. 39 of the Immigration and Refugee Protection Act that people submitting applications under to sponsor their spouses or common-law partners under either the Family Class or the Spouse or Common-Law Partner in Canada Class ensure that they do not raise any flags regarding a possible financial inadmissibility.

For example, if a Canadian sponsor’s income was below Statistics Canada’s low-income cutoff, then the foreign national should take seriously the question of what their intended occupation will be after they immigrate.   

As well, although it is not typically mandatory in a spousal or common-law partnership application, if the foreign national is the principle breadwinner in the family then they should indicate this in the application, and provide proof of the foreign spouse’s or common-law partner’s earnings.

Examples of Financial Inadmissibility

Elayathamby Rasu v Canada (Citizenship and Immigration) is a good example of how financial inadmissibility can work. There, the Canadian sponsor in the years leading up to the sponsorship of his wife earned around an average of $10,000.00 per year. In her application form, her wife, who spoke neither English or French, stated that she planned on being a housewife after she immigrated.  The visa office refused their application, a decision which the Immigration Appeal Division upheld.

Another impediment for Canadians whose income is well below to Statistics Canada’s low income cutoff for a region is where their foreign family members do not speak English or French and where their credentials may not be recognized in Canada. In Cheung v. Canada (Citizenship and Immigration)a Canadian sponsor tried to argue to the Immigration Appeal Division that his wife, who was a nurse in her country of origin, had transferrable skills. However, the Immigration Appeal Division noted that her lack of English and the fact that it was not clear that she could actually work as a nurse in Canada meant that it was not clear that the family would not need social assistance.

Finally, as the Immigration Appeal Division noted in Phuoc v. Canada (Citizenship and Immigration)it is open to immigration authorities to not consider, or at least give very weight to, evidence of Canadian income which has not been declared to the Canada Revenue Agency.

Other Disqualifications

Other things that can disqualify an otherwise eligible sponsor from sponsoring someone include:

  • The sponsor being subject to a removal order;
  • The sponsor being detained in any penitentiary, jail, reformatory, or prison;
  • The sponsor have previously been convicted of a specified offence (such as a sexual offense);
  • The sponsor being in default of spousal or child support payments;
  • The sponsor being in default of a debt owed under Canada’s Immigration and Refugee Protection Act;
  • The sponsor being an undischarged bankrupt;
  • The sponsor being in receipt of social assistance other than for reasons of a disability; and
  • The sponsor being in default of a of a previous sponsorship undertaking.

Humanitarian & Compassionate

A family that might not be able to reunify in Canada, either because the Canadian receives social assistance or because there is a probability that they will be found to be financially inadmissible to Canada, should not give up.

As with all immigration applications, it is possible that there could be sufficient humanitarian & compassionate factors to supersede the inadmissibility.


Open Marriages and the Family Class

 

Canadian immigration law allows people to sponsor their spouses or common-law partners to immigrate to Canada.  A question that often arises is whether open relationships count.

Multiple Spouses or Common-Law Partners

Canadian immigration law is clear that a person cannot have more than one spouse or more than one common-law partner for the purpose of immigration. .

Section 119(9)(c) of Canada’s Immigration and Refugee Protection Regulations provides that a person cannot sponsor someone if the prospective immigrant is the Canadian’s spouse and (i) the sponsor or the foreign national was, at the time of their marriage, the spouse of another person, or (ii) the sponsor has lived separate and apart from the foreign national for at least one year and either the sponsor is the common-law partner of another person or the foreign national is the common-law partner of another person.

On the issue of polygamous marriages, section 13.2 of Immigration, Refugees and Citizenship Canada’s Overseas Processing Manual 2 – Processing Members of the Family Class (the “Guidelines”) further states that:

Polygamous marriages

Officers must counsel both parties that polygamy is an offence under the Criminal Code of Canada. R117(9)(c)(i) states that a spouse is not a member of the family class if the spouse or sponsor was already married to another person at the time of the subsequent marriage. This regulation prohibits a second (or third, etc.) wife from being recognized as a spouse within the family class and provides that only the first marriage may potentially be recognized for immigration purposes.

In order for the first marriage to be recognized as legally valid under Canadian law, the couple must live together in a monogamous marriage in Canada. Common law imparts that a polygamous marriage can be converted into a monogamous marriage provided that the couple live together in a monogamous relationship from the time of arrival in Canada. This conversion is effected by the stated intention of the parties to so convert their marriage, followed by some factual evidence that they have complied—usually by divorcing the other spouses and/or by a remarriage in a form that is valid in Canada.

The decision to refuse must be based on the balance of all evidence, and not solely because the applicant did not obtain a divorce. The parties must understand that refusal to provide such evidence may result in a refusal of their application.

A polygamous second (or third, etc.) marriage cannot be converted to one of monogamy. If a husband wishes to sponsor a wife other than his first as a spouse, he must divorce his other wives and remarry the chosen wife in a form of marriage that is valid in Canada. He and his chosen spouse must sign a declaration to that effect.

When a sponsor and applicant have been practising polygamy and there are children existing from several spouses, officers must caution the sponsor and the spouse being sponsored that other spouses will not be eligible for immigration to Canada even if their respective children are sponsored. Officers must explain that separation of children from their mothers will likely be permanent, and counsel the sponsor and applicant to consider the consequences of that separation on the children. If the children nonetheless are sponsored, and if one of these children subsequently sponsors their respective mother, this mother must be cautioned that she will have no spousal status and related legal protection in Canada and that she will not be eligible for support or other benefits that also flow from marriage under Canadian law.

The prohibition against polygamy in the Regulations, and the lack of recognition of all spouses except the first, cannot be avoided by processing a second spouse as a common-law partner. Legally, it is not possible to establish a common-law relationship that meets the definition of such in terms of conjugality, where one or both parties are still living in a pre-existing conjugal relationship. The notion of conjugality has within it the requirement of monogamy; therefore, it is only possible in law to establish a new common-law relationship after a person is either divorced or separated from the spouse or common-law partner and where they have convincingly formed the intention not to continue with that previous relationship.

An already existing marriage, uninterrupted by separation, divorce or death, is a barrier that cannot be overcome when assessing a second spouse as a common-law partner. However, where such a barrier is removed (i.e., a first wife is subsequently divorced or is deceased), a husband and second wife could choose either to remarry, or could potentially meet the definition of common-law partner (i.e., where a husband was separated from a first wife and lived with a second wife in a bona fide conjugal relationship for one year after the separation from a first wife). Because a subsequent marriage (where the first is continuing) is not valid in Canadian law, persons in such a scenario would be considered as single in law and thus, they would have to remarry to be considered married under Canadian law.

Section 5.42 of the Guidelines further states that:

5.42. Simultaneous common-law or conjugal partner relationships with two or more people (polygamous-like relationships)

A common-law or conjugal partner relationship cannot be established with more than one person
at the same time. The term “conjugal” by its very nature implies exclusivity and a high degree of
commitment; a conjugal relationship cannot exist among more than two people simultaneously.
Polygamous-like relationships cannot be considered conjugal and do not qualify as common-law
or conjugal partner relationships.

 

Open Relationships

Suppose someone is in a common-law partnership or a marriage, but that the relationship is an open one.  IRCC’s manuals emphasize that in order for a relationship to qualify for Canadian sponsorship purposes the relationship must be conjugal, and that in order for the relationship to be conjugal the relationship must be mutually exclusive.

While the Guidelines are silent on the issue of open marriages and open relationships, the Immigration Appeal Division has held that whether a relationship is open is just one factor in determining whether a relationship is genuine or if it was entered into for Canadian immigration purposes, and that the only part of whether an open sexual relationship could result in a relationship not being conjugal would be if both parties did not mutually agree or recognize that the relationship was open.

As such, Canadians wishing to sponsor a spouse or common-law partner and who are in an open relationship with that person should simply ensure that they do an especially good job of demonstrating that they are in a conjugal relationship, by showing the interdependence in the relationship,  the co-mingling of finances, the public recognition of their relationship and the other factors mentioned in the Guidelines.

 

 


Spousal Sponsor is Pregnant with Someone Else’s Child

When someone sponsors their spouse or common-law partner to immigrate to Canada, it can often be difficult to determine how detailed one’s application should be.  Should one include every aspect of their relationship history, including marital difficulties?  What about instances of fidelity?

Several Federal Court of Canada decisions involving cases of alleged misrepresentation against applicants offer guidance on this topic.

In Chen v. Canada (Public Safety and Emergency Preparedness),(“Chen“), Mr. Chen, a Chinese citizen, married Ms. Zou, a Canadian permanent resident. Ms. Zou then sponsored Mr. Chen for permanent residence.  While Mr. Chen’s application was in processing, a friend told him that his wife had been seen “in the company” of another man in Toronto.

When Mr. Chen arrived in Canada, he discovered that his wife pregnant with another man’s child.  According to Justice Harrington, Mr. Chen was willing to forgive his wife, 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. Ms. Chen “taunted Ms. Zou’s lack of manhood.”

As one would expect, the marriage shortly dissolved thereafter.

After the divorce, Mr. Chen married an old flame in China.  He then attempted to sponsor her for Canadian permanent residency.

Unfortunately for Mr. Chen, Canadian immigration authorities not only disallowed his new wife’s application, but also declared Mr. Chen to be inadmissible to Canada for misrepresentation in his own immigration application.

Essentially, the Canada Border Services Agency (“CBSA“) alleged that Mr. Chen’s first marriage to Ms. Zou was not genuine, that Mr. Chen lied to enter Canada, and that his permanent residency should accordingly be revoked.  Specifically, the CBSA was suspicious because Mr. Chen 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. Zou dissolved.

Justice Harrington, however, held 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. Chen’s failure to disclose to immigration officials the possibility of Ms. Zou having an affair, Justice Harrington noted that at the time of the interview Ms. Zou having an affair was only a rumor, and that the duty of candour did not oblige Mr. Chen to share mere worries.  As Justice Harrington wrote,

As to not sharing the rumours with the officer at the time of his interview, what material fact did he withhold? The only fact was that he had heard rumours. Even if they were true, it did not mean that the marriage was necessarily at an end. The Divorce Act specifically contemplates the possibility of reconciliation and the divorce papers jointly signed by the parties, which are to be found in the tribunal record, contain their joint statement that reconciliation was not possible.

In Osisanwo v. Canada (Citizenship and Immigration), a similar issue arose. There, a Canadian citizen filed an application to sponsor his parents to immigrate to Canada.  He included his birth certificate in the application to show that the people that he was applying to sponsor were his parents.  Ultimately, immigration officials required DNA testing, which showed that while his mother was indeed his mother, he was not his “father’s” son. Immigration officials determined that this constituted misrepresentation.

Justice Hughes, disagreed.  He noted that DNA testing proved that the mother was really the Canadian child’s mother, that the “father” had raised the child, and that the “father” had no reason to suspect that he was not the person’s biological father. As Justice Hughes noted:

History is replete with children born to and raised by a married couple, believing it to be their own. Must an applicant seeking entry into Canada disclose every extra-marital relationship conducted at a time where there is any possibility that a child might have been fathered by someone other than the husband? Surely our society has not found itself at that point.

The above two cases should not be taken to mean that applicants can never disclose extra-marital affairs when they apply to immigrate to Canada.  In Kawech v. Canada (Citizenship and Immigration)the Federal Court of Canada had to address a situation where someone failed to disclose the existence of a long-standing mistress.

Mr. Kawech, a Tunisian, married Ms. Charlotte, a much older woman who could not have any children.  Mr. Kawech also had a long-standing mistress with whom he had children.  Mr. Kawech did not mention the existence of this affair during the processing of his spousal sponsorship application.  When immigration officials eventually discovered it, they determined that his marriage to Ms. Charlotte was not genuine.

Madam Justice Gleason agreed, and determined that while applicants did not need to disclose every extra-marital incident, that a long-standing affair could reasonably cast doubt onto the genuineness of a marriage.

These three cases, and a string of similar cases at the Immigration Appeal Division, show that when completing their immigration paperworks applicants should keep in mind that in assessing the genuineness of a marriage there may be a difference between those who have one-night stands or flings, and those who are in extra-marital relationships that last close to one year.

As also shown above, the issue of extra-marital affairs in spousal sponsorship applications also goes beyond simply impacting whether a marriage is genuine.  A father who is informed by Canadian immigration officials that he is both not the biological parent of his child, which by itself would be devastating, may also discover that he is also banned from Canada for misrepresentation because he did not disclose what he did not know in his immigration application.

Fortunately, as long as applicants can show that they both (a) did not know that they were not the biological parents of their child and (b) that this belief was reasonable, the innocent mistake defence to misrepresentation would likely apply.


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: 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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