Guest Post: Safeguarding a Divorce Order Against Social Assistance Debt

15th Jan 2013 Comments Off on Guest Post: Safeguarding a Divorce Order Against Social Assistance Debt

(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 third of what will hopefully be many into this issue.)

The issue of resolving a fraudulent marriage tied to an immigration application is completely separate from the need to get divorced. Fraudulent marriage is not grounds for a divorce and it is not necessary to prove that marriage was fraudulent in order to get a divorce. The issue of the fraudulent marriage can only be dealt with in civil court, not family, court as explained in an earlier post.

Generally speaking, it is understood that the sponsored spouse may receive social assistance or they may receive maintenance (i.e. spousal support), but they cannot receive both. Where the divorce order or separation agreement explicitly states that maintenance is not to be provided or has been provided in a lump sum payment, it can be argued that the sponsoring spouse should not be responsible for social assistance debt despite the undertaking.

It would be prudent for family law lawyers who represent a sponsoring spouse in a family matter to inquire about whether the sponsored spouse has received social assistance and determine for how long the sponsoring spouse is obligated by the undertaking to provide the necessities of life. Ideally, the divorce order should explicitly forbid the sponsored spouse from applying for social assistance during the term of the undertaking.

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