Immigrants and Family Law

From Clicklaw Wikibooks

Immigration Matters[edit]

Problems involving immigration usually crop up because one spouse has sponsored the other spouse into Canada and the relationship has ended. The discussion that follows provides an overview of some issues that may arise as a result of the breakdown of that relationship. If you have an immigration concern, you should absolutely speak with a lawyer who practices in this area.

Discourse*[edit]

Before we get into substantive immigration law, let us go over some differences in language in family and immigration law. Some of these differences are:

Use of the term “Common Law” or “Spouse”[edit]

Immigration and Refugee Protection Regulations use the term “Common-Law partner” and list the following definition: “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. (conjoint de fait)”

The Family Law Act in BC does not use the term “common law.” It defines ‘Spouse’ under section 3(1) of the act. The definition is exhaustive, so please refer to the Act for a full definition. The following is a snippet to illustrate the key difference:

3(1)A person is a spouse for the purposes of this act if the person

(a) is married to another person, or

(b) has lived with another person in a marriage-like relationship, and (i) has done so for a continuous period of at least 2 years, or (ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person. This means that just because you qualify as a common law spouse for the purpose of immigration, does not mean that you will qualify as a spouse for the purposes of Family Law 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.” There are quite a few cases that speak about the courts being “alive” to the interests of the children.

Sponsor’s Obligations[edit]

Both family and immigration law outline a stepparent’s obligation to provide for the sponsored dependent in some way.

Section 147(4) of theFamily Law Act states that “A child’s stepparent does not have a duty to provide support for the child unless

(a) the stepparent contributed to the support of the child for at least one year, and

(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.”

This means that if your Canadian partner sponsored you and your child(ren) to Canada and helped support that child for at least one year, then you could pursue child support for your child under the Family Law Act. Be aware of the one-year limitation period noted in section 147(4)(b) above.*

In addition, immigration rules also state that the sponsor has certain obligations to continue to provide for their spouse's needs and the needs of any dependent child(ren). These responsibilities are for a fixed amount of time. Refer to this page on the CIC website that outlines this undertaking.

From a legal perspective, the sponsor’s obligations under family and immigration law are not identical. A family law case at the BC Supreme Court, 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 support under those acts. Either way, if you were sponsored, have dependents, and your relationship with the sponsor has now ended, talk to a lawyer to discuss your entitlement to support.

Sponsorship application[edit]

If you leave your spouse while the sponsorship application is still in progress, you must inform IRCC 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. I urge you to speak to a lawyer at this point or contact the Legal Services Society, or other community resources, 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 new rule that sponsored spouses are under a conditional permanent residency status for the first two years (with some exceptions). This condition was removed on April 28, 2017. In April 2017, the government introduced a rule that sponsored spouses or partners of Canadian citizens and permanent residents no longer need to live with their sponsor in order to keep their permanent resident status.

The change applies to those who were under investigation under the previous rule. That is, if you left your spouse within two years of receiving your permanent resident status and the government of Canada was investigating you under the previous conditional permanent residency rule, they will no longer continue that investigation.

This means that 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 (that is, if 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. At this point, I suggest seeking 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 immigration 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, you will also remain entitled to claim a share in the family property.

Although your spouse still has an obligation to support you as a sponsor, 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 try 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. Speak to your caseworker or lawyer right away.

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. Seek them out immediately.


Links[edit]

  • Thank you to Vicky Law and Jasmeet Wahid for allowing me to use their presentation on Family and Immigration Law for some of the materials in this article.
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Taruna Agrawal, May 24, 2019.


Creativecommonssmall.png JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.

Normally 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."

A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a court proceeding. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the Divorce Act. See "judge" and "jurisdiction."

Under 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."

A person licensed to practice law in a particular jurisdiction. See "barrister and solicitor."

The legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts; the system of justice used in non-criminal cases in all provinces and territories except Quebec.

Intentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations."

In family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple, and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses without marrying. See "cohabitation," "marriage," and "spouse."

A term under the Family Law Act which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities," and "parenting time."

A term under the Family Law Act that describes the visitation rights of a person, who is not a guardian, with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities."

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

The spouse of a person who has children from a previous relationship. A stepparent may qualify as a "parent" for the purposes of issues relating to child support and the care and control of a child under both the Divorce Act and the Family Law Act. See "parent" and "spouse."

A duty, whether contractual, moral, or legal in origin, to do or not do something. See "duty."

In law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action."

A mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision," and "declaration."

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A time period after which someone may not make a claim because the right to do so has expired. The time for making a claim is set by legislation, and limitation periods will differ depending on the type of claim or the relationship between people making and defending the claim.

Money 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.

A request to the court that it make a specific order, usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief."

Acts or words tending or intended to give a misleading or false impression as to the true state of affairs. See "bad faith."

The 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."

The 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 term under the Family Law Act referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property."

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