Immigrants and Family Law

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Immigration issues

Problems involving immigration usually crop up because one spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." has sponsored the other spouse into Canada, or a spouse is concerned about deportation once the relationship ends. The discussion that follows provides only an overview of some of these problems. If you have an immigration concern, you really should speak to a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." who practises this kind of law.

Permanent resident spouses

Under new rules that were introduced in October 2012, sponsored spouses are under a conditional permanent residency status for the first two years. According to the press release from Citizenship and Immigration Canada[1]:

"The spouse or partner must live in a legitimate relationship with their sponsor for two years from the day on which they receive their permanent resident status in Canada. The status of the sponsored spouse or partner may be revoked if they do not remain in the relationship."

In other words, the spouse who has been sponsored into Canada must stay with his or her spouse for at least two years or the spouse risks losing his or her permanent residency. This could be a serious problem if the potential loss of status forced people to stay in abusive relationships. However, the new rules appear to come with some exceptions. Here's more from the press release:

"The regulationsA kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no say as to what sort of regulations are imposed or input into the effect of those regulations. See "act." include an exception for sponsored spouses or partners suffering abuse or neglect. The conditional measure would cease to apply in instances where there is evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." of abuse or neglect by the sponsor or if the sponsor fails to protect the sponsored spouse or partner from abuse or neglect. This abuse or neglect could be perpetrated by the sponsor or a person related to the sponsor, whether or not the abusive partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." is living in the household or not during the conditional period. The exception would also apply in the event of the death of the sponsor."

If your sponsor is abusive and you seek an exemption from the conditional permanent residency, refer to paragraph 3 on Operational Bulletin 480 on the Citizenship and Immigration Canada Website [2]

However, no matter what, your spouse may still remain responsible for supporting you and your children. If you are married, you will also remain entitled to claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. a share in the family assets.

Although your spouse still has an obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty." to support you as a sponsor, you will not lose your permanent resident status after the first two-year period if you have to apply for welfare, although you will be expected to try to get support from your spouse. If your relationship ended because of abuse, you may not have to try to get support from your spouse. Speak to your caseworker or lawyer right away.

In October 2016, CIC announced that in 2017, it would eliminate the requirement that spouses cohabit for two years before the sponsored spouse is able to obtain full Canadian permanent residenceThe geographic place where a person permanently lives. This is different from a person's "domicile" in that a person's residence is more fixed and less changeable in nature. A person's residence can also have an impact on a court's authority to hear and decide a legal action. See "domicile" and "jurisdiction.". You may read more about this in the Gazette. [3]

This means that when a spouse enters Canada as a permanent resident, that residency will not be contingent on the length of that relationship.

Non-resident spouses

If you do not have permanent resident status, you must seek legal advice and help right away, as the breakdown of your relationship with your sponsor may affect your ability to remain in Canada (if that's in fact what you'd like to do). There are a number of agencies that help immigrants and refugees. Seek them out immediately.

Sponsoring spouses

If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs and the needs of any dependent children. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms.

You have these responsibilities in addition to your responsibilities under the Divorce Act and the Family Law Act. A 2004 case of the Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.", Aujla v. Aujla, 2004 BCSC 1566 held that a sponsor's obligations under a sponsorship agreement were obligations between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship. under those acts.

If you are a sponsor and your relationship has ended, contact an immigration lawyer right away to find out exactly what your rights and obligations are.

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