(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.)
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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.[1]
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[2] 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.[3] The Court also held that the government may defer payment of the debt but cannot forgive it.[4]
If the Ministry of Social Development (the “Ministry”) issues social assistance to a sponsored spouse and then attempts to collect it from the sponsoring spouse, that spouse has several options to recoup or minimize their loss. One option is for the sponsoring spouse to negotiate a payment schedule with the Ministry.
While the Ministry cannot forgive the debt associated with the social assistance, the Provincial Cabinet can forgive some debts owed to it under section 18 of the Financial Administration Act [RSBC] Chapter 138. Regrettably, the government of British Columbia has not enacted a regulation stating how such an application is to be made. In the absence of such a regulation, an application for the forgiveness of debt can be made directly to Cabinet. However, in today’s fiscal climate, it is unlikely that the government will forgive debt.
A third option is to sue your ex-spouse for the tort of deceit, where a divorce order or separation agreement has set the amount of maintenance. The sponsored spouse knows the sponsoring spouse is responsible for reimbursing the government any social assistance they receive, as they also signed the undertaking. The sponsored spouse knows that the divorce order has addressed maintenance (i.e. monthly maintenance, lump sum maintenance, or no maintenance). They know that maintenance is to provide the necessities of life. By applying for social assistance, they are aware, or should be, that they are seeking back door maintenance contrary to their divorce order. In such circumstances, the tort of deceit could well provide a remedy for social assistance debt incurred by an ex-spouse.
There may also be a fourth remedy for the sponsoring spouse, which will be outlined in our next posting.
– John Nelson was called to the British Columbia bar in 2011. He is a sole practitioner serving both Victoria and Vancouver in the practice areas of civil litigation, family law, and administrative law. He can be reached at nelson@johnnelsonlaw.ca.