Last Updated on October 26, 2012 by Steven Meurrens
The Federal Court has released a decision which seems to suggest that immigration officers can analyse whether a marriage is “one-sided” for the purpose of determining whether a marriage is not genuine or whether it was entered into for immigration purposes. Although Dalumay v. Canada, 2012 FC 1179 is not particularly ground-breaking, it contains some useful paragraphs reminding individuals what immigration officers are analysing when they process sponsorship applications.
Regulation 4 of Canada’s Immigration and Refugee Protection Regulations provides that a relationship will be considered bad faith (and a sponsorship application will be rejected) if the relationship was entered into primarily for the purposes of acquiring any status or privilege under the Act or is not genuine. As previously noted on this blog, Regulation 4 was amended in 2010, with the word “or” replacing “and” before the phrase “is not genuine.”
In Keo v. Canada (Citizenship and Immigration Canada), 2011 FC 1456, the Federal Court described the implication of the 2010 change as being that:
The amendment made to section 4 of the Regulations is not cosmetic in nature; the use of the word “or” in the English version and of the words “selon le cas” in the French version are very clear: if either of the two elements (genuineness of marriage and intention of the parties) is not met, the exclusion set out in the new subsection 4(1) of the Regulations applies.
A marriage might have been entered into in accordance with all of the statutory formalities, but, nonetheless, the visa officer or the panel may refuse to recognize [it] if they find that the marriage did not occur in “good faith”, even if the expression “non-genuine marriage” is not used in their reasons for decision… In fact, what the immigration laws do not recognize are situations where the two spouses are complicit to duplicity (a non-genuine marriage) and/or where the intention of the spouses or of one of the spouses is primarily to acquire a status or privilege (even if the other partner may benefit from it). In other jurisdictions, these unions are sometimes described as “sham” or “white” marriages, whereas in Canada, the manual.. uses the expression “marriage of convenience”.
Consequently, whether this is a conventional marriage, an arranged marriage or another type of conjugal relationship, it is essential to find in the couple’s relationship a mutual commitment to living together to the exclusion of any other conjugal relationship. The spouses’ physical, emotional, financial and social interdependence goes hand in hand with this because, after all, in all cultures and traditions, over and above any religious undertakings, in terms of its civil effects, marriage is, above all, an indeterminate contract requiring that spouses help each other and contribute towards the expenses of the marriage in proportion to their respective means, which certainly includes the activities of each spouse, or even both together, in the home.
Furthermore, in M v H,  2 SCR 3, at paragraph 59, the Supreme Court of Canada […] spoke of a conjugal relationship based on generally accepted characteristics: shared shelter, sexual and personal behaviour, services, social activities, economic support, children and the societal perception of the couple. However, these elements may be present in varying degrees and not all are necessary for the relationship to be found conjugal. The same type of criteria can be found in the manual.
There is no single method of analysis. For example, money transfers, the combining of financial resources, the existence of joint accounts and the purchase of property in the name of both spouses are certainly indicative of financial support or interdependence. Something else that can be verified is how the spouses behave towards one another and towards the authorities in their respective countries. Do they have children? Do they support each other during illnesses? Do they give each other gifts? Do they travel together? Do they live under the same roof when they are in the foreign spouse’s country of origin? In what way and how often do they communicate when they are separated?
In Dalumay, the Court added that:
In the matter at bar, the Immigration Appeal Division did not explicitly take issue with the evidence of the genuineness of the marriage, but concluded that for both spouses (although to a greater extent for the applicant’s husband) the marriage was primarily entered into for the purpose of acquiring status or privilege under the Act. In other words, the IAD viewed the marriage (or the relationship) as being one-sided. The applicant subscribed to an insurance policy in which she designated her husband as the beneficiary, she visited her husband several times in Mexico and paid for all of her expenses, she paid for a trip with her husband and his son, she sends him money on a monthly basis, she pays his bills, etc.
The applicant submits that the evidence supporting the IAD’s negative conclusion did not meet the required evidentiary test of balance of probabilities. Even if the credible evidence of the genuineness of her marriage (demonstrating positive features of a couple, as the applicant puts it) was not fully weighed in the assessment, the IAD’s decision turned on the failure of the applicant’s husband to provide sufficient evidence that he entered into the relationship with an intention to found, raise, and support a family with the applicant.
The above passages are all useful reminders in what it is that officers are looking for when they process sponsorship applications. Accordingly, people preparing such applications should take care to show that they are demonstrating that:
- the couple are committed to each other emotionally, financially, and physically (although in practice not too much detail is provided on this last one);
- the couple are exclusive;
- the relationship evolved in a natural fashion ie: immigration wasn’t a concern or an issue;
- that both individuals in the relationship feel the same; and
- that the relationship is known to others.