Family law issues often arise in the context of immigration law due to the breakdown of a relationship or marriage after a spouse or partner has been sponsored to come to Canada. When this happens, there may be concerns about maintaining immigration status, sponsorship obligations, and financial support for the couple.
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 partner:
The sponsor and the sponsored person have lived together continuously for at least one year. - Conjugal partner:
The sponsored person can be defined as a conjugal partner if exceptional circumstances beyond their control prevent the partners from qualifying as common-law partners or spouses. This can 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:
Divorce is when the court officially ends a marriage. Only legally married couples can divorce. Separation is when the couple decides to live separately from each other because their relationship has broken down. The couple may be married or may be unmarried but living together as partners in a common-law relationship.
Divorce law applies to divorced or divorcing married couples. Divorce law sets the rules related to the following:
- Grounds for divorce
- Child support when parents divorce
- Spousal support after divorce
- Arrangements for child custody and upbringing after divorce
Under the Canadian Constitution, the federal government and provincial governments share responsibility for family law. Divorce law is federal law, which means it applies across Canada. However, the process of obtaining a divorce is carried out through provincial law. The provinces are responsible for establishing justice, including processing divorce applications and making decisions on child support, spousal support, and custody.
Each province has its own rules regarding child support, spousal support, and child custody, but these laws apply when unmarried couples separate or when married couples separate but do not apply to divorce.
What happens if you separate after being sponsored in Canada?
If you have been granted permanent residence after being sponsored by your spouse or partner, your residency status does not depend on living with your spouse or the duration of your relationship.
In 2017, the federal government introduced a rule stating that spouses or common-law partners of Canadian citizens and permanent residents no longer need to live with their sponsor to maintain permanent residency status.
This rule is particularly favorable for abusive situations, as the person will not have to worry about potentially losing their status or being threatened with deportation if they choose to live apart from their spouse or partner.
If you do not have permanent residency status and your relationship breaks down or you separate, this may affect your ability to stay in Canada.
Moreover, 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). Failure to report this change can be considered misrepresentation.
It is important to note that the Canadian government investigates marriage fraud, which occurs when someone marries a Canadian citizen or permanent resident for the purpose of obtaining status in Canada.
What about sponsorship commitment?
If you sponsor your spouse or partner to become a permanent resident in Canada, you must sign a commitment pledging to provide financial support for your spouse or partner’s (and their dependent children’s, if applicable) basic needs. Basic needs include food, clothing, shelter, and anything else necessary for daily life. It also covers any healthcare not covered by public health services.
The commitment is a binding support obligation. You are considered responsible for supporting the person throughout the commitment period, even if your situation changes. This means that even in the case of separation or divorce during the commitment period, the sponsorship commitment you signed will remain in effect and continue for three years after the person becomes a permanent resident.
Family law support vs. immigration law support
Family law support obligations and immigration law support obligations differ. The spousal commitment is an obligation between the sponsor and the government, whereas support obligation in family law is between the spouses as individuals.
FAQ
What happens to my permanent residency status if I separate from my spouse after being sponsored in Canada?
If you have been granted permanent residence after being sponsored by your spouse or partner, your residency status does not depend on living with your spouse or the duration of your relationship.
In 2017, the federal government introduced a rule stating that spouses or common-law partners of Canadian citizens and permanent residents no longer need to live with their sponsor to maintain permanent residency status. This rule is particularly favorable for abusive situations, as the person will not have to worry about potentially losing their status or being threatened with deportation if they choose to live apart from their spouse or partner.
How does a separation or divorce affect my sponsorship obligations?
If you sponsor your spouse or partner to become a permanent resident in Canada, you must sign a commitment pledging to provide financial support for your spouse or partner’s (and their dependent children’s, if applicable) basic needs.
The commitment is a binding support obligation, and you are considered responsible for supporting the person throughout the commitment period, even if your situation changes. This means that even in the case of separation or divorce during the commitment period, the sponsorship commitment you signed will remain in effect and continue for three years after the person becomes a permanent resident.
How do family law support obligations differ from immigration law support obligations?
Family law support obligations and immigration law support obligations differ. The spousal commitment is an obligation between the sponsor and the government, whereas support obligation in family law is between the spouses as individuals.
What should I do if my relationship breaks down while my sponsorship application is still in progress?
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). Failure to report this change can be considered misrepresentation.
How does the Canadian government handle cases of marriage fraud?
It is important to note that the Canadian government investigates marriage fraud, which occurs when someone marries a Canadian citizen or permanent resident for the purpose of obtaining status in Canada. If the government suspects marriage fraud, they may take action, including revoking the sponsored person’s permanent resident status and possibly deporting them.
