Family law problems in the immigration law context usually occur because a relationship or marriage breaks down after the spouse or partner has been sponsored to come to Canada. When this happens, there may be concerns about maintaining immigration status, sponsorship undertakings and spousal financial support.
The sponsor and the sponsored person must be in a relationship under one of three categories:
- Spouse: the sponsor and the sponsored person are married.
- common law partnerr: the sponsor and sponsored person have cohabitation continuously for at least one year
- Conjugal partners: a sponsored person may be defined as a conjugal partner if exceptional circumstances beyond their control have prevented the partners from qualifying as common law partners or spouses. This could happen due to immigration barriers or legal restrictions limiting divorce or same sex relationships. The partners must be in a mutually dependent relationship for at least one year with the same level of commitment as a marriage or common law partnership.
Divorce and separation
A divorce is when a court officially ends a marriage. Only legally married couples can divorce.
A separation is when a couple decides to live apart from each other because their relationship has broken down. The couple may be married, or they may be unmarried but live together like a married couple in a common law relationship.
the Divorce Act applies to married couples who have divorced or are applying for divorce. the Divorce Act sets out rules about:
- The grounds for divorce
- Child support when parents get divorced
- Spousal support following a divorce
- Custody and parenting arrangement for children after a divorce
Under Canada’s Constitution, the federal and provincial governments share family law responsibility.
the Divorce Act is a federal law, meaning it applies across Canada. However, the process for getting a divorce is done through the provincial law. The provinces are responsible for the administration of justice, including processing divorce applications and making decisions about child support, spousal support, and custody.
Each province has its own rules about child support, spousal support, and custody for children, but these laws apply when an unmarried couple separates or when a married couple separates but does not apply to get divorced.
What happens if you were sponsored, and you separate or get divorced in Canada?
If you are granted permanent residence after being sponsored by your spouse or partner, your residency status is not contingent on living with your spouse or the length of your relationship.
In 2017, the federal 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.
This rule is especially favorable for abusive situations, as a person would not have to worry about the potential loss of status or threat of deportation if they were to live apart from their spouse or partner.
If you do not have permanent resident status and your relationship breaks down or you get divorced, it may affect your ability to remain in Canada.
In addition, if the sponsorship application is still in progress and you file for divorce or the relationship breaks down, you must inform Immigration, Refugees and Citizenship Canada (IRCC). Failing to report this change can constitute misrepresentation.
It is important to note that the government of Canada investigates marriage fraud, which occurs when someone marries a Canadian citizen or permanent resident for the purpose of gaining status in Canada.
What about the sponsorship undertaking?
If you sponsor your spouse or partner to become a Canadian permanent resident, you must sign an undertaking in which you promise to provide financial support for the basic needs of your spouse or partner (and their dependent children, if applicable). Basic needs include food, clothing, shelter and anything else needed for everyday living. It also includes any health care that isn’t covered by public health services.
The undertaking is a binding promise of support. It deems you responsible for supporting the person for the length of the undertaking period, even if your situation changes. That means that even if you separate or divorce during the undertaking period, the sponsorship undertaking that you signed will remain in effect and will continue for three years after the person becomes a permanent resident.
Family law vs. Immigration law support
Family law and immigration law support obligations are different. A spousal undertaking is an obligation between a sponsor and the government, while a support obligation in family law is between the spouses as individuals.
The British Columbia Supreme Court case of Aujla v. Aujla held that a sponsor’s obligations under a sponsorship agreement and undertaking are separate from the sponsors obligation to pay spousal support based on family law legislation.
Finally, it is recommended that if you are sponsored and your relationship breaks down, you consult an immigration attorney who is familiar with the rights and obligations regarding sexual sponsorship. The lawyers at Cohen Immigration Law have many years of experience and will provide professional legal services to support your sponsorship needs.
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