(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 … Read More
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), 2010 FC 584),(“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 … Read More
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 … Read More
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 … Read More
Significant Changes Coming to the Spousal-Sponsorship Program – Conditional PR and Sponsorship Bars
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 … Read More
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 … Read More
Clearing the Parental Backlog
It looks like Citizenship and Immigration Canada is serious about clearing that parental and grandparent sponsorship backlog. On November 7, 2011, CIC released Operational Bulletin 353 – Change in Procedures for Processing Family Class Parent and Grandparent Applications. If you have an application to sponsor a parent or grandparent in processing take note. Starting mid-November, CIC will begin sending out letters to sponsors with the oldest applications in processing requesting the submission of additional documentation and forms. Applicants will be given 90 days to comply with the request, and informed that if they do not submit the additional documentation and forms within the 90 days, then their application will be closed. Furthermore, if the additional forms and documents are incomplete, then applicants will only have 30 days to return their application with the missing documents, or the application will be closed. Considering that until last week people with sponsorship applications in processing thought that it would be years until their was movement on their file these deadlines are pretty strict. So take note and get ready! It would be a change if the parent and grandparent sponsorship application backlog was reduced simply through applications being rejected for failure to comply … Read More
“Pause” on New Parental Sponsorship Applications
On November 4, 2011, the federal government introduced its plan for reducing the backlog in parent and grandparent sponsorship applications. With more than 165,000 applications in the queue, and a wait time approaching a decade, it was clear that something had to be done. The government’s plan involves numerous phases: One – Increase by over 60 percent the number of sponsored parents and grandparents Canada will admit next year, from nearly 15,500 in 2010 to 25,000 in 2012. Two – Introduce a new “Parent and Grandparent Super Visa,”which will be valid for up to 10 years. The multiple-entry visa will allow an applicant to remain in Canada for up to 24 months at a time without the need for renewal of their status. The Parent and Grandparent Super Visa will come into effect on December 1, 2011. Parent and Grandparent Super Visa applicants will be required to obtain private Canadian health-care insurance for their stay in Canada. Three – The government will consult stakeholders on how to redesign the parents and grandparents program to ensure that it is sustainable in the future. Four – There will be a temporary pause of up to 24 months on the acceptance of new sponsorship applications for parents and grandparents. The … Read More
Should Family Class Applicants have to Pass an English Language Test
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 … Read More
Family Class Undertakings
The spousal sponsorship undertaking is a binding contract between sponsors (and co-signers) and the Minister of Immigraiton, Refugees and Citizenship Canada. Sponsors must provide the sponsored person with basic requirements from the day they enter Canada until the end of the undertaking. They are obligated to repay the government any social assistance payments made to the sponsored person during the undertaking period. In spousal sponsorship applications, the length of the undertaking is 3 years (36 months) from the date of becomming a permanent resident. The Supreme Court in Mavi On June 10, 2011, the Supreme Court of Canada released its decision in Canada (Attorney General) v. Mavi, 2011 SCC 30. 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 … Read More