(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.
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,