Last updated on July 28th, 2021
Last Updated on July 28, 2021 by Steven Meurrens
Regulation 4 of Canada’s Immigration and Refugee Protection Regulations, SOR/2002-207 state that a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act or (b) is not genuine.
From 2012-2017 around 4% of spousal sponsorship applications were refused because an officer determined that an applicant’s marriage was either not genuine or that it was primarily motivated by an immigration benefit.
A Hasty Marriage
In Nadasapillai v Canada (Citizenship and Immigration), 2015 FC 72, Justice Diner held that the fact that a marriage was entered into after a short courtship is not determinative of a mala fide marriage. He stated:
The Panel criticized the haste based on Ms. Raman’s troubled past relationship and marriage, and the fact that Ms. Raman was 38 years of age at the time, i.e., getting on in age for a single mother. There are two reasons that this is a weak conclusion.
First, one can easily understand why Ms. Raman was ready for the companionship that she clearly explained she had longed for: older couples can be quick in deciding to get married (although haste is certainly not the exclusive domain of any particular age). Older people are often ready to move more quickly into a lifelong commitment, as they know what they want. As Ms. Raman stated in her testimony, “I am getting older. I am very old now and I don’t know how long I’ll be able to live. … I found him a good person. So I took two or three days… to think about it and then decide it.”
Second, if the basis of finding haste was one steeped in a certain culture, it is unfair. In the context of the Refugee Protection Division, the Court has found that where the Board [RPD] draws plausibility conclusions about evidence without considering the proper cultural and socio-political context, this can constitute grounds for quashing a decision. The Board, must be careful about imposing western or Canadian paradigms on non-western culture and I recognize that both Bains and Bhatia involved refugee claims, not sponsorship appeals.
My conclusion on the Panel’s “haste” finding is that it was speculative at best, or otherwise made without taking into account non-western values.
A Marriage That Doesn’t Fit Cultural Norms
In Gill v. Canada, 2010 FC 122 (“Gill”) Justice Barnes stated that just because a marriage doesn’t “fit” with cultural norms doesn’t mean it is malafide. He wrote:
… the Board’s observation that their respective ages and Ms. Gill’s status as a divorced person were inconsistent with prevailing cultural norms in India. …does not mean that marriages that fall slightly outside of the range do not occur. The same can be said for the Indian cultural view on divorce. Presumably marriages between previously unmarried persons and divorced persons do take place in India…
In Padda v. Canada, 2018 FC 708, Justice Boswell also noted that it is unreasonable to apply cultural norms where the couple have resided outside of their country of origin for some time.
Birth of a Child
Gill also stands for the proposition that the birth of a child creates an evidentiary presumption that a marraige is valid. The Court stated:
The Board was correct in acknowledging that, in the assessment of the legitimacy of a marriage, great weight must be attributed to the birth of a child. Where there is no question about paternity, it would not be unreasonable to apply an evidentiary presumption in favour of the genuineness of such a marriage. There are many reasons for affording great significance to such an event not the least of which is that the parties to a fraudulent marriage are unlikely to risk the lifetime responsibilities associated with raising a child. Such a concern is heightened in a situation like this where the parents are persons of very modest means.
In its assessment of this marriage, the Board noted that “strong countervailing evidence” would be required to displace the significance of the birth of the child. The problem with the decision is that the Board’s assessment of that “strong countervailing evidence” largely concerned trivial, inconclusive or irrelevant matters and ignored considerable evidence which contradicted its conclusion.
The Appellant and the Applicant have a child together and I have taken considerable time to consider this evidence. I am well aware that the implications can be devastating if a couple’s appeal is dismissed when they have brought children into that relationship. While credible evidence of a child of a relationship is generally indicia of a genuine relationship, it is not determinative of the genuineness of the relationship. In this instance, the birth of a child does not outweigh the numerous concerns with the evidence presented.
In Mutneja v Canada (Citizenship and Immigration), 2019 FC 1624 the Federal Court further stated that:
While the birth of a child is not conclusive evidence of the genuineness of a relationship, the IAD was obliged to weigh the fact that the Applicant and Ms. Mutneja have a child together and give this factor considerable weight. And yet, the Decision does not disclose any analysis of this factor. The IAD baldly states that “the birth of a child does not outweigh the numerous concerns with the evidence presented.” The failure to explain why this important factor was outweighed by negative ones leads to the inference this factor was not properly considered.
This principle was upheld in Amin v. Canada (Citizenship and Immigration), 2021 FC 670.
There are many Federal Court decisions which state that events subsequent to the marriage can be indicative of what a marriage’s primary purpose was. In Sami v. Canada (Citizenship and Immigration), 2012 FC 539, for example, the Federal Court stated that “there is considerable jurisprudence to support the notion that proof of subsequent commitment can represent proof a marriage was genuine when it was entered into.”