Guest Post: Safeguarding a Divorce Order Against Social Assistance Debt

15th Jan 2013 Comments Off on 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.

 » Read more about: Guest Post: Safeguarding a Divorce Order Against Social Assistance Debt  »

Read more ›

Guest Post: The Undertaking & Social Assistance Debt

13th Jan 2013 Comments Off on 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.

 » Read more about: Guest Post: The Undertaking & Social Assistance Debt  »

Read more ›

Guest Post: Suing your Spouse for Fraudulent Marriage

11th Dec 2012 Comments Off on 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.

 » Read more about: Guest Post: Suing your Spouse for Fraudulent Marriage  »

Read more ›