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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Guest Post: Suing your Spouse for Fraudulent Marriage

11th Dec 2012 Comments Off on Guest Post: Suing your Spouse for Fraudulent Marriage

(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:

  1. 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.
  2. File for divorce.
  3. Find out if your spouse has applied for or is receiving social assistance.
  4. Consult a lawyer to determine if you can sue your spouse for fraudulent misrepresentation of marriage.

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Conditional Permanent Residency for Some Spousal Sponsorships

28th Oct 2012 Comments Off on Conditional Permanent Residency for Some Spousal Sponsorships

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,

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Immigration Appeal Division Must Address Bona Fides Before H&C

5th Jun 2012 Comments Off on Immigration Appeal Division Must Address Bona Fides Before H&C

The Federal Court has confirmed that s. 65 of the Immigration and Refugee Protection Act requires that the Immigration Appeal Division determine whether an applicant is a member of the Family Class before considering humanitarian & compassionate considerations (“H&Cs“).

Accordingly, people appearing before the Immigration Appeal Division in a Family Class appeal should be prepared to prove that the applicant is a member of the family class before arguing H&Cs.  This is the case even if the visa officer did not make a determination, or made a negative determination, regarding membership in the Family Class.

For example, if a visa officer rejects a spousal-sponsorship application on the basis of criminality, then at the Immigration Appeal Division the appellant must be prepared to demonstrate bona fides of the relationship prior to analyzing the inadmissibility, and any H&Cs to overcome it.

 

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Significant Changes Coming to the Spousal-Sponsorship Program

9th Mar 2012 Comments Off on Significant Changes Coming to the Spousal-Sponsorship Program

Fresh off his efforts to crack down on crooked consultants, and having just introduced legislation to deter “bogus refugees,” Jason Kenney, the Minister of Citizenship and Immigration, is now focusing his scopes on deterring sham marriages.  He has made (or is in the process of making) two significant changes to Canada’s spousal-sponsorship program.  While both of his reforms will have its critics, the changes are likely to have the overwhelming support of the Canadian public, and continue the Conservative government’s trend of harmonizingCanada’s immigration system with other Western democracies.

The first change is a five-year sponsorship bar for recently sponsored spouses.  A previously-sponsored spouse will now be barred from sponsoring a new spouse or partner for the first five years that the previously sponsored spouse is a permanent resident.  The government’s objective is to prevent an individual who has been sponsored from divorcing the sponsor and shortly thereafter getting married and sponsoring someone else.

This change took affect on March 2, 2012.  If you were in the process of preparing a spousal-sponsorship application, and this change applies to you, then I’m sorry toinform you that there was no grace period. You will (likely) have to wait until you have been in Canadafor five-years before you can sponsor your spouse.

The second change is the introduction of conditional residency for certain spouses.  Spouses or common-law or conjugal partners who are in a relationship of two years or less with their sponsor will soon be subject to a period of conditional permanent residence.  The condition would require the sponsored spouse or partner to cohabit in a conjugal relationship with their sponsor for a period of two years following the acquisition of permanent residence status.  If this condition is not met, then the permanent resident and his/her dependents will lose their status inCanada,

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Spousal Sponsorships and Criminal Convictions

4th Apr 2011 Comments Off on Spousal Sponsorships and Criminal Convictions

Citizenship and Immigration Canada has proposed regulatory changes regarding who will be prohibited from sponsoring a member of the family class due to previous criminal convictions. Before discussing the proposals, it is worth reviewing the current law.

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Conditional Permanent Residency for Spousal Sponsorships

29th Mar 2011 Comments Off on Conditional Permanent Residency for Spousal Sponsorships

The Canadian government has quietly put out a notice in the Gazette requesting comments on a proposal to introduce a conditional permanent residence period of two years or more for sponsored spouses and partners in a relationship of two years or less with their sponsors.

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Withdrawing a Spousal Sponsorship

Withdrawing a Spousal Sponsorship

1st Jan 2011 Comments Off on Withdrawing a Spousal Sponsorship

The first question on the Application to Sponsor and Undertaking form asks…1) If you are found ineligible to sponsor, indicate whether you want to withdraw your sponsorship. All processing fees less $75 will be repaid OR to proceed with the application for permanent residence.

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Customary / Tribal Marriages and Immigrating to Canada

13th Dec 2010 Comments Off on Customary / Tribal Marriages and Immigrating to Canada

Marriage ceremonies vary across the world. Many involve customs and rituals that would be completely foreign to most Canadians.

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Spousal Sponsorship and Social Assistance

26th Jun 2010 Comments Off on Spousal Sponsorship and Social Assistance

Last updated on April 28th, 2020

Section 133 of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) prohibits a Canadian citizen or permanent resident from sponsoring a foreign family member (generally a spouse, common-law partner, parent or grandparent) if the Canadian is in receipt of social assistance for a reason other than a disability.  The Regulations define social assistance as being any benefit, whether money, goods or services, provided to or on behalf of a person by a province under a program of social assistance. It includes assistance for food, shelter, clothing, fuel, utilities, household supplies, personal requirements and health care not provided by public health care.

Pursuant to the internal Immigration Refugees and Citizenship Canada (“IRCC“) e-mail below,  it is important to note that IRCC does not consider subsidized housing to be social assistance.

Section 133(1)(k) of the Regulations explicitly provides that a person can still sponsor a foreign family member to immigrate to Canada if the sponsor receives the social assistance because of a disability.

Previous Receipt of Social Assistance

Depending on the circumstances, the previous receipt of social assistance can render a sponsor ineligible.  Section 133(1)(b) of the Regulations provides that a sponsor must intend to fulfil the obligations in the sponsorship undertaking.  In Alriyati v. Canada (Immigration, Refugees and Citizenship), 2020 FC 496, Justice Pentney determined that it was reasonable for a visa officer to determine that because someone had been on social assistance for a lengthy period, and only stopped receiving social assistance shortly before submitting a spousal sponsorship application, that the person did not have an intention to fulfil the obligations in the sponsorship undertaking.  Justice Pentney noted:

There is no jurisprudence of this Court on the interpretation of intention under paragraph 133(1)(b).

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