Last updated on February 21st, 2021
Last Updated on February 21, 2021 by Steven Meurrens
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),(“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 China. He then attempted to sponsor her for Canadian permanent residency.
Unfortunately for Mr. Chen, Canadian immigration authorities not only disallowed his new wife’s application, but also declared Mr. Chen to be inadmissible to Canada for misrepresentation in his own immigration application.
Essentially, the Canada Border Services Agency (“CBSA“) alleged that Mr. Chen’s first marriage to Ms. Zou was not genuine, that Mr. Chen lied to enter Canada, and that his permanent residency should accordingly be revoked. Specifically, the CBSA was suspicious because Mr. Chen did not have a wedding reception upon arriving in Canada, he did not confront his wife about the rumours before he left China, and he did not return to China once his marriage to Ms. Zou dissolved.
Justice Harrington, however, held that in determining whether a marriage is genuine for the purposes of immigration, one has to consider whether the marriage was genuine in the first place, and whether it was still genuine when the Applicant arrives at a Canadian port of entry.
Regarding Mr. Chen’s failure to disclose to immigration officials the possibility of Ms. Zou having an affair, Justice Harrington noted that at the time of the interview Ms. Zou having an affair was only a rumor, and that the duty of candour did not oblige Mr. Chen to share mere worries. As Justice Harrington wrote,
As to not sharing the rumours with the officer at the time of his interview, what material fact did he withhold? The only fact was that he had heard rumours. Even if they were true, it did not mean that the marriage was necessarily at an end. The Divorce Act specifically contemplates the possibility of reconciliation and the divorce papers jointly signed by the parties, which are to be found in the tribunal record, contain their joint statement that reconciliation was not possible.
In Osisanwo v. Canada (Citizenship and Immigration), a similar issue arose. There, a Canadian citizen filed an application to sponsor his parents to immigrate to Canada. He included his birth certificate in the application to show that the people that he was applying to sponsor were his parents. Ultimately, immigration officials required DNA testing, which showed that while his mother was indeed his mother, he was not his “father’s” son. Immigration officials determined that this constituted misrepresentation.
Justice Hughes, disagreed. He noted that DNA testing proved that the mother was really the Canadian child’s mother, that the “father” had raised the child, and that the “father” had no reason to suspect that he was not the person’s biological father. As Justice Hughes noted:
History is replete with children born to and raised by a married couple, believing it to be their own. Must an applicant seeking entry into Canada disclose every extra-marital relationship conducted at a time where there is any possibility that a child might have been fathered by someone other than the husband? Surely our society has not found itself at that point.
The above two cases should not be taken to mean that applicants can never disclose extra-marital affairs when they apply to immigrate to Canada. In Kawech v. Canada (Citizenship and Immigration), the Federal Court of Canada had to address a situation where someone failed to disclose the existence of a long-standing mistress.
Mr. Kawech, a Tunisian, married Ms. Charlotte, a much older woman who could not have any children. Mr. Kawech also had a long-standing mistress with whom he had children. Mr. Kawech did not mention the existence of this affair during the processing of his spousal sponsorship application. When immigration officials eventually discovered it, they determined that his marriage to Ms. Charlotte was not genuine.
Madam Justice Gleason agreed, and determined that while applicants did not need to disclose every extra-marital incident, that a long-standing affair could reasonably cast doubt onto the genuineness of a marriage.
These three cases, and a string of similar cases at the Immigration Appeal Division, show that when completing their immigration paperworks applicants should keep in mind that in assessing the genuineness of a marriage there may be a difference between those who have one-night stands or flings, and those who are in extra-marital relationships that last close to one year.
As also shown above, the issue of extra-marital affairs in spousal sponsorship applications also goes beyond simply impacting whether a marriage is genuine. A father who is informed by Canadian immigration officials that he is both not the biological parent of his child, which by itself would be devastating, may also discover that he is also banned from Canada for misrepresentation because he did not disclose what he did not know in his immigration application.
Fortunately, as long as applicants can show that they both (a) did not know that they were not the biological parents of their child and (b) that this belief was reasonable, the innocent mistake defence to misrepresentation would likely apply.
Finally, as a somewhat interesting aside, the Port of Spain visa office has found that 18% of the time that it asked a visa applicant to produce a DNA test to show that a child was the applicant’s the DNA results showed that there was zero percent probability of that being the case.