Immigrants and Family Law

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Family law problems involving immigration law usually happen because a relationship breaks down after a spouse or common-law partner has been sponsored to come to Canada. Below is an overview of some overlapping legal issues that may result. If you are a newcomer to Canada with a family law concern, you should seek a lawyer (or an advocate or duty counsel) who is familiar with both family law and the rights and obligations around immigration and sponsorship. Several organizations specialize in supporting newcomers in this way. MOSAIC provides information, summary advice, referrals and legal representation to low-income immigrants and refugees. The Legal Services Society also publishes a useful booklet called Sponsorship Breakdown.

Let's look at some differences in concepts and language between family law and immigration law to start.

Use of the term "common-law" or "spouse"[edit]

Generally speaking, the term "common-law spouse" or "common-law partner" is not useful when discussing rights and obligations under provincial legislation. The Family Law Act in BC does not use the term "common-law." The act defines spouse under section 3(1), and the definition broadly captures both married people and unmarried people who live in a "marriage-like" relationship—if that relationship has continued for at least two years.

For federal laws, the term and even the criteria are quite different. The Immigration and Refugee Protection Regulations defines "common-law partner":

common-law partner means, in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year.

Notice the time difference? It's important to remember that qualifying as a common-law spouse under Canadian immigration law does not necessarily mean you qualify as an unmarried spouse for the purposes of Family Law Act. If you have lived together for over one year but less than two, are not married, and your relationship ends, you may be a common-law spouse under federal law, but not a spouse of any kind under the provincial act.

Best interests of the child[edit]

Section 37(1) of the Family Law Act states that best interests of the child is the only consideration when making decisions about guardianship, parenting arrangements, and contact with the child.

Section 3(1)(d) of the [Immigration and Refugee Protection Act] states that one of the objectives of the act is "to see that families are reunited in Canada." A very important case for immigration law, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 says that "the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them."

Sponsor's obligations[edit]

Immigration rules state that a sponsor must commit to providing for their spouse's (or common-law partner's) needs and the needs of any dependent children. This commitment is actually made to the government, and is called an undertaking. The undertaking continues even if the relationship between a sponsor and their spouse or other dependent breaks down. If a sponsor and their spouse separate, and the sponsor will not or cannot support the spouse voluntarily, the spouse may apply for welfare or other government benefits to support themselves and any dependent children. If the government (whether provincial or federal) supports the spouse by paying benefits (such as welfare), the government will then turn to the sponsor and require them to pay back the cost of those benefits. Each undertaking lasts for a period of time called a length of undertaking, during which time the sponsor is liable to support the spouse and repay the government for any support it provides the spouse. See the CIC website for a table showing the different lengths of undertaking, depending on who is sponsored.

Family law and immigration law support obligations are different. Where an undertaking is an obligation between a sponsor and the government, a support obligation in family law is between the spouses as individuals. To get a sponsor to pay spousal or child support under family law, the immigrant spouse must claim it the same way any Canadian resident or citizen would — including applying to court if need be.

One family law case from BC Supreme Court, Aujla v. Aujla, 2004 BCSC 1566, shows that a sponsor's obligations under a sponsorship agreement and undertaking, are separate from the sponsor's obligation to pay spousal support based on family law legislation. If you were sponsored, have dependents, and your relationship with the sponsor has now ended, talk to a lawyer to discuss your entitlement to spousal or child support, or consult some of the resources mentioned here.

A sponsor's obligations could extend to stepchildren. For stepparents, both family law and immigration law outline obligations to provide for sponsored dependents in some way.

As discussed in the chapter on Child Support, under the heading "Stepparents and child support", section 147(4) of theFamily Law Act imposes a duty on stepparents in some cases to pay child support.

If your spouse sponsored you and your children to come to Canada, and if they helped support that child for at least one year, then you may be able to get a child support order under the Family Law Act. Be aware of the one-year limitation period for making a claim, noted in section 147(4)(b).

Sponsorship application[edit]

If you leave your sponsoring spouse while the sponsorship application is still in progress, you must inform Immigration, Refugees and Citizenship Canada of this change in your application. Failure to do so constitutes misrepresentation, which is a ground for refusal of your Permanent Residence application. At this point, you may not be able to proceed with your sponsorship application for Permanent Residence, but there may be other options available to you that allow you to stay in Canada. This could include a Permanent Resident application on humanitarian and compassionate grounds. This is especially the case if you leave your partner due to abuse in the relationship. Contact the Legal Services Society, or other community resources like MOSAIC, to see if you qualify for a free lawyer.

You should also inform IRCC of your change of address, so that they may continue to correspond with you after you leave your spouse’s residence.

Permanent resident spouses[edit]

In October 2012, the government of Canada introduced a rule that most sponsored spouses were under conditional permanent residency status for the first two years. This condition was removed on April 28, 2017, when the government introduced a rule that sponsored spouses or common-law partners of Canadian citizens and permanent residents no longer need to live with their sponsor in order to keep their permanent resident status.

If your sponsor is abusive, you no longer need to worry about the threat of deportation or potential loss of status. Your residency status is no longer contingent on the length of the relationship. That being said, the government of Canada will still continue to investigate complaints about marriage fraud (where someone marries a Canadian citizen or permanent resident for the sole purpose of gaining entry into Canada). This means that if you leave your spouse, there is a possibility that he or she may file a complaint of marriage fraud with IRCC. IRCC will then send you a letter with a 30 day deadline to respond to their concerns and tell your side of the story. If that happens, you should seek legal advice. You could also write to the IRCC officer and ask for an extension on the response date. This will buy you some time to find a lawyer. If you do not receive a positive response from the officer, then you must respond by the date listed on the letter to avoid a removal order.

No matter what, your spouse may still remain responsible for supporting you and your children. If you are married or qualify as an unmarried spouse under the Family Law Act you may also be entitled to claim a share in the family property. See the chapter on Property & Debt.

So long as your sponsorship is still within the term of undertaking (discussed above), your sponsor's obligation to support you continues. You will not lose your permanent resident status if you have to apply for welfare. If you do apply for welfare, keep in mind that you will be expected to show that you tried to obtain support from your spouse. If your relationship ended because of abuse, you may not have to try to get support from your spouse. The booklet on Sponsorship Breakdown contains good information on this topic.

Non-resident spouses[edit]

If you do not have permanent resident status, you must seek legal advice and help right away, since the breakdown of your relationship with your sponsor may affect your ability to remain in Canada (if that is in fact what you would like to do). There are a number of agencies that help immigrants and refugees. See the booklet Sponsorship Breakdown for a list of community workers and settlement agencies.

Links[edit]

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Taruna Agrawal, May 24, 2019.


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