Last Updated on January 7, 2022 by Steven Meurrens

Regulation 4.1 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the “IRPR“) provides that:

4.1 For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the foreign national has begun a new conjugal relationship with that person after a previous marriage, common-law partnership or conjugal partnership with that person was dissolved primarily so that the foreign national, another foreign national or the sponsor could acquire any status or privilege under the Act.

This section is often referred to as prohibiting “divorces of convenience.”

Jurisprudence

In Fang v. Canada (Citizenship and Immigration), 2020 FC 851, Madam Justice Walker explained that regulation 4.1 of the IRPR “prevents a couple from appearing to dissolve an existing relationship to permit one spouse to obtain immigration status in Canada, for example through a non-genuine relationship with a Canadian citizen [or permanent resident], only to subsequently resurrect the initial relationship.”

Madam Justice Walker also stated that section 4.1 is premised on three conjunctive elements to determine whether someone is caught by the provision.  Justice Southcott succintly summarized the test as follows in Zhang v. Canada (Citizenship and Immigration), 2021 FC 744:

  1. the immigration applicant and the Canadian sponsor had a previous marriage;
  2. the previous marriage was dissolved primarily so that the immigration applicant, the Canadian sponsor, or another foreign national could acquire immigration status or privilege in Canada; and
  3. the immigration applicant and the Canadian sponsor subsequently began a new conjugal relationship.

In Clarke v. Canada (Citizenship and Immigration), 2022 FC 12, Justice Favel noted that the section also applied to common-law relationships, and that the test in the common-law context is:

  1. the immigration applicant and the Canadian sponsor had a previous marriage, common-law partnership, or conjugal partnership;
  2. the previous marriage, common-law partnership, or conjugal relationship was dissolved primarily so that the immigration applicant, the Canadian sponsor, or another foreign national could acquire immigration status or privilege in Canada; and
  3. the immigration applicant and the Canadian sponsor subsequently began a new conjugal relationship.

Justice Favel further noted that in the family reunification context Canadian immigration legislation does not allow for simultaneous relationships. He further found that an individual in a common-law getting married to another person severs the common-law relationship even if the common-law couple’s “relationship” persists over the course of a person’s marriage to another person.