When it comes to the marriage breakdown and immigration status, it is necessary to separate between the family law consequences of divorce and separation and the immigration law consequences for a sponsored spouse or partner. A sponsored spouse who has already become a permanent resident can usually keep their status after separation or divorce. The complications tend to come up when a sponsorship application is still being processed, or if immigration fraud or misrepresentation is believed to be involved.
The Legal Framework
Family Sponsorship in Canada is governed by the Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR). A spouse is considered part of the “family class” under s.116 of the IRPR. The sponsor must therefore sign a sponsorship agreement and an undertaking (legally binding promise) to support their spouses for a specific period of time. This ensures the spouse will not need to ask the government for financial help and avoid using the public purse.
Sponsorship Obligations
Divorce or separation does not terminate a sponsor’s undertaking. S.132 of the Immigration and Refugee Protection Regulations ensure an undertaking will still be binding if your relationship with the sponsored person breaks down. The Supreme Court of Canada in Canada (Attorney General) v. Mavi, 2011 SCC 30, has also confirmed that the undertakings are sufficient in setting out obligations of the sponsor, the duration of the undertaking and the consequences of the default. As a result, they “are binding notwithstanding any change in the sponsor’s personal circumstances.” The sponsor also cannot simply revoke the sponsorship after permanent residence has been granted.
The legislation ensures that a sponsored spouse who gets a divorce can continue to live, work, and study in Canada regardless of the status of their relationship. It ensures a level of protection that does not end simply because the relationship does.
Withdrawing Sponsorship
If a sponsorship application is still in process and PR has not yet been granted, a sponsor may be able to withdraw their sponsorship before the final decision is made. S.126 of the IRPR states that “a decision shall not be made on an application for permanent residence by a foreign national as a member of the spouse or common-law partner in Canada class if the sponsor withdraws their sponsorship application in respect of that foreign national.”
Once PR has been granted, the sponsor can not cancel the sponsored person’s status regardless of the status of the relationship.
Exceptions – Marriage Fraud and Misrepresentation
If a relationship is found to not have been genuine from the outset (marriage fraud) or was intended to mislead immigration authorities (misrepresentation), permanent residence may be revoked. Immigration, Refugees, and Citizenship Canada (IRCC) is the authority on this. If the IRCC finds that permanent residence was obtained through material misrepresentation, enforcement proceedings may be initiated. Depending on the circumstances, permanent resident status can be revoked, and removal proceedings may follow.
The IRPA in s.40 (1) finds that “a permanent resident or a foreign national is inadmissible for misrepresentation (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act.” This applies to both the sponsor and the sponsored spouse: s.42(1) states that “a foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if (a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or (b) they are an accompanying family member of an inadmissible person.”
Each case is judged on its own merits, and the facts involved. A divorce, even if it occurred shortly after PR was granted, is not sufficient evidence of fraud.
Rights of Sponsored Spouses Facing Abuse
A sponsored spouse who experiences family violence does not lose permanent resident status merely because they leave the relationship. While there were previously conditions where one had to live their sponsor to keep permanent resident status, these conditions no longer exists and one’s status no longer depends on living with their sponsor. Newcomers should not be concerned about deportation if they separate from their sponsor.
The IRCC has explicitly written on the topic to provide resources for these victims of abuse. The IRCC has also developed a Client Support Centre to provide additional assistance and help safety-plan for victims, especially those being threatened with deportation by their abusive sponsor.
The IRCC has also created special permit to allow victims to escape abuse, live and work in Canada, and not be forced to separate from their children. These are called Temporary Resident Permits (TRP) for victims of family violence. TRPS allow victims to stay in Canada temporarily, escape their abusive households, and prepare for their next steps. They last at least 12 months, and have no fees involved. The IRCC also does not require for an abused sponsored spouse to testify against their abuser.
CONCLUSION
The end of a marriage often raises concerns about immigration consequences, but Canadian case law draws a clear distinction between family relationships and immigration status. While sponsors remain bound by their sponsorship undertakings for the applicable period, sponsored spouses who have already obtained permanent residence generally retain their status despite separation or divorce. Understanding this distinction can help both sponsors and newcomers make informed decisions, avoid staying in abusive situations, and avoid misconceptions during an already stressful period.
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