(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.
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 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 ›
(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:
- 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.
- File for divorce.
- Find out if your spouse has applied for or is receiving social assistance.
- Consult a lawyer to determine if you can sue your spouse for fraudulent misrepresentation of marriage.
Canada’s spousal and common-law partner sponsorship programs have undergone significant changes in the past several years. In a recent backgrounder to a press release, Citizenship and Immigration Canada published the timeline below. The timeline is something that all practitioners should consider showing to clients who are interested in submitting a spousal or common-law partnership application.
In brief, all people considering the spousal or common-law partnership program should be aware of some conditions, undertakings, and restrictions which will apply to them after their application is approved.
Year 0 – Applicant immigrates to Canada and becomes a permanent resident of Canada. If the applicant was married or in a common-law partnership with the Canadian sponsor for less than two years prior to the couple submitting their sponsorship application (and they do not have children in common together) then the immigrant is a “conditional permanent resident” who has to stay married and live with the sponsor for a period of two years after the immigrant becomes a permanent resident.
Year 2 – The condition of staying married and living together with the sponsor is removed for conditional permanent residents.
Year 3 – The sponsor’s sponsorship undertaking ends. The sponsor will no longer be liable to a level of government for any social assistance that the immigrant receives. If the sponsor and immigrant have divorced or separated, the sponsor can now sponsor someone new.
So yeah, much thanks to CIC for this helpful chart.Read more ›
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,
The Federal Court has confirmed that s. 65 of the Immigration and Refugee Protection Act requires that the Immigration Appeal Division determine whether an applicant is a member of the Family Class before considering humanitarian & compassionate considerations (“H&Cs“).
Accordingly, people appearing before the Immigration Appeal Division in a Family Class appeal should be prepared to prove that the applicant is a member of the family class before arguing H&Cs. This is the case even if the visa officer did not make a determination, or made a negative determination, regarding membership in the Family Class.
For example, if a visa officer rejects a spousal-sponsorship application on the basis of criminality, then at the Immigration Appeal Division the appellant must be prepared to demonstrate bona fides of the relationship prior to analyzing the inadmissibility, and any H&Cs to overcome it.
Read more ›
Fresh off his efforts to crack down on crooked consultants, and having just introduced legislation to deter “bogus refugees,” Jason Kenney, the Minister of Citizenship and Immigration, is now focusing his scopes on deterring sham marriages. He has made (or is in the process of making) two significant changes to Canada’s spousal-sponsorship program. While both of his reforms will have its critics, the changes are likely to have the overwhelming support of the Canadian public, and continue the Conservative government’s trend of harmonizingCanada’s immigration system with other Western democracies.
The first change is a five-year sponsorship bar for recently sponsored spouses. A previously-sponsored spouse will now be barred from sponsoring a new spouse or partner for the first five years that the previously sponsored spouse is a permanent resident. The government’s objective is to prevent an individual who has been sponsored from divorcing the sponsor and shortly thereafter getting married and sponsoring someone else.
This change took affect on March 2, 2012. If you were in the process of preparing a spousal-sponsorship application, and this change applies to you, then I’m sorry toinform you that there was no grace period. You will (likely) have to wait until you have been in Canadafor five-years before you can sponsor your spouse.
The second change is the introduction of conditional residency for certain spouses. Spouses or common-law or conjugal partners who are in a relationship of two years or less with their sponsor will soon be subject to a period of conditional permanent residence. The condition would require the sponsored spouse or partner to cohabit in a conjugal relationship with their sponsor for a period of two years following the acquisition of permanent residence status. If this condition is not met, then the permanent resident and his/her dependents will lose their status inCanada,Read more ›
Canadians wanting to sponsor foreign nationals have to decide whether they want to apply as a member of the Family Class or as a member of the Spouse or Common-Law Partner in Canada Class.
To be a member of the Spouse or Common-Law Partner in Canada Class, applicants must:
- be the spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada;
- have a temporary resident status in Canada; and
- be the subject of a sponsorship application.
Said v. Canada (Citizenship and Immigration), 2011 FC 1245 recently confirmed an important point for people considering applying under this class.
You have to be cohabiting. If there is no cohabitation then there is no possible sponsorship. There is no requirement for immigration officers to consider whether a marriage is genuine if the couple are not cohabiting.Read more ›
On June 10, 2011, the Supreme Court of Canada released its decision in Canada (Attorney General) v. Mavi. The case involved an appeal from numerous Ontario residents regarding relief from the sponsorship undertakings that they had signed to sponsor a family class member.
Potential immigrants under the family class are only eligible to apply for permanent residency once a Canadian citizen’s or permanent resident’s application to sponsor them has been approved. Family class immigrants are not assessed independently on their ability to support themselves, as is the case with other immigrants. The burden of showing sufficiently financial wherewithal lies with the sponsor.
I have yet to witness a case where a client showed concern about the sponsorship undertaking. Usually the undertaking is treated as a joke, and sponsors normally tease their spouses / family members about not becoming “welfare bums”. However, as the cases of the individuals in Mavi show, breaches of the sponsorship undertaking can often lead to huge debts. Mavi involved individuals in the following circumstances:
- Mr. D sponsored his fiancee in 2002. When she arrived in Canada she refused to live with him or marry him. Mr. D tried to have his former fiance deported, however, her appeal was successful. Unbeknown to him, she later went on social assistance. In 2007, the Ontario government informed him that he owed $10,510.65 for breach of the undertaking.
- Ms. E sponsored her father, mothers, and two brothers in 1995. Her husband was a co-signatory. She later left him because of abuse. She went on social assistance afterward, as did her father, and one brother. In 2006 she was informed that she owed the Ontario government $94,242.16 for breach of the undertaking.
Canada’s family class and the spousal sponsorship program have recently been hit with two significant changes that are largely based on immigration programs found in other Western nations. The first recent change is the proposed introduction of a sponsorship bar, which prohibits recently sponsored spouses from sponsoring a new spouse for three years after they land in Canada. The second is a proposed change to move towards conditional permanent residency for sponsored spouses who have been in a relationship for less than three years with the person that sponsored them.
Given that the current Conservative government appears to be basing much of its changes to Canada’s immigration system on what other Western countries are doing, it is worth exploring another feature of many European countries’ immigration system that is absent in Canada. This is the requirement that family class applicants either pass a language test or a test on their respective destination country’s culture in order to immigrate.
On June 9, 2010, for example, the United Kingdom introduced language tests for foreign spouses. Under the program, all non-European immigrants to the United Kingdom must pass a basic English language test before being granted a visa. The rules apply to anyone wanting to join their spouse or partner in the United Kingdom.
Effective November 15, 2010, meanwhile, a similar requirement was introduced in Denmark. Applicants under Denmark’s family reunification program must pass an immigration test before they can immigrate. The test is an oral one consisting of a language section and a knowledge section. There are 70 questions, consisting of 40 language questions and 30 culture questions. Applicants are required to get 30 out of 40 of the language questions correct, and 21 out of 30 of the Danish society questions correct in order to pass the test.Read more ›
One of the frustrations people who successfully appeal family class decisions to the Immigration Appeal Division (“IAD”) often face is that there is a significant delay between when the IAD allows an appeal and when a mission abroad resumes processing. This delay is often several months.
Citizenship and Immigration Canada has recognized this issue, and has introduced a pilot project to address it.
After a successful appeal, the processing of a Family Class Application for a Permanent Residence Visa will no longer be sent back to the original embassy, but rather will resume at Case Processing Pilot – Ottawa.
The implementation of the pilot project will take place in two phase.
From now until September 2011, all family class appeals that are allowed will be forwarded to CPP-O. CPP-O will create a file, conduct security checks, and forward the file to the respective visa office for processing.
Starting in September, CPP-O will conduct security checks, and then triage the files into relatively low admissibly risk files and complex ones. For a relatively low risk files, CPP-O will process the entire file, and print the Confirmation of Permanent Residence. Files that are identified as having complex admissibility issues will still be forwarded abroad.
Although the change is largely procedural, applicants who are successful at the IAD will undoubtedly feel a substantial benefit if the expected several months reduction in processing time happens.Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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