Immigrating: Lover Beware

by Joel Sandaluk, B.A., LL.B.

Barrister & Solicitor for MAMANN, SANDALUK, Immigration Lawyers

Every year, thousands of people apply to sponsor their spouses and common-law partners to Canada as members of the family class. Of these applications, many involve long term relationships where the lives and finances of the spouses are already merged and blended to the point where they are not easy to separate.

However, many other sponsorship applications are made between two people who have only known each other briefly, often having met while one spouse was traveling (back to their country of origin or even to a different country) and then marrying after a whirlwind romance sprung from falling in love at first sight. Despite the fact that both spouses may love each other deeply at the time that an application for sponsorship is filled, such relationships are often filled with difficulties. Those troubles can result from extended periods of separation while the sponsorship application is being processed, combined with a difficult adjustment to living together after one spouse arrives in Canada from overseas. As a result, many such relationships fail not long after the foreign national spouse arrives in Canada and has been granted permanent residence status.

It may seem to some that a breakup of a relationship that has existed on a long distance basis for most of its history and also, in which the couple has spent very little time living together would be a relatively straightforward matter and would allow each spouse a “clean break”. Unfortunately, this is not the case where one spouse has sponsored the other to Canada as a member of the family class.

After a sponsorship application has been made and accepted by the Canadian government, the sponsoring spouse is obliged to abide by (obey) the conditions of the sponsorship, whether their relationship with their sponsored spouse continues or not.

Where a spouse has signed a three year undertaking, they remain responsible for the sponsored spouse’s ongoing support even after the breakup of their relationship. For example, if a sponsored spouse receives social assistance following the breakup but before the expiry of a three year period of responsibility, the sponsoring spouse may be required to indemnify (pay back) the social services agency of the provincial or territorial government for the welfare expenditure.

Often, the sponsoring spouse will try to get out of their obligation by creating a separation agreement that one spouse will not be required to fulfill the undertaking in respect of the other. However, the undertaking signed by the sponsoring spouse is not an agreement between the spouses but rather an agreement between the sponsoring spouse and the Canadian government. As such, the sponsored spouse is not in a position to relieve the sponsoring spouse of their obligations, whatever their intentions may be.

If a sponsored spouse does receive social assistance and that money is not repaid by the sponsoring spouse, then the sponsoring spouse will be deemed to be in breach of their undertaking made to the Canadian government and as a result, they will be prevented from sponsoring any other members of the family class to Canada in the future. For many individuals this can be a real problem, whether or not the provincial agency attempts to collect the repayment of assistance payments from the sponsoring spouse.

Furthermore, it is not possible for a sponsoring spouse to sponsor a new spouse to Canada until the first sponsorship period has ended (three years after the arrival of the sponsored spouse in Canada). In the case of a relationship that is entered into hastily and which exists only very briefly after the spouse’s arrival in Canada, this requirement may represent a significant difficulty.

There is really no solution available to sponsors who find themselves in this difficult situation. Rather, the only advice that I, as a lawyer, can offer to my clients who have consulted me regarding the sponsorship of a spouse in an application that is new and appears to be impulsive, is that the spouse should be aware of all their obligations and understand that their obligations will continue regardless of whether their relationship with the sponsored person has come to an end.

It is my hope that, after sober and careful reflection of the responsibilities and consequences of sponsoring a spouse to Canada as a member of the family class, the sponsor will spare themselves the long term consequences of an impulsive and emotional decision.