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==Immigration issues==
==Immigration Matters==
 
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*==
 
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:
 
'''i. Use of the term “Common Law” or “Spouse”'''
 
''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 as ‘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 purpose of Family Law Act.
 
'''ii. Best Interest of the Child'''
 
Section 37(1) ''Family Law Act'' (BC) states that best interest of the child is the only consideration when making decisions about guardianship, parenting arrangements, and contact with the child.
 
Section 3(1)(d) ''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 interests of the children.
 
==Sponsor’s Obligations==
 
Both family and immigration law outline a stepparent’s obligation to provide for the sponsored dependent in some way. 
 
Section 147(4) ''Family 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 link on the CIC website that outlines the undertaking- http://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=1355&top=14
 
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 for support.


Problems involving immigration usually crop up because one spouse has sponsored the other spouse into Canada, or a spouse is concerned about deportation once the relationship ends. The discussion that follows provides only an overview of some of these problems. If you have an immigration concern, you absolutely should speak with a lawyer who practices in this area.


===Sponsorship application===
===Sponsorship application===


If you leave your spouse while the sponsorship application is still in progress, you must inform immigration Canada 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 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 Legal Services Society or other community resources to see if you qualify for a free lawyer.  
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 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===
===Permanent resident spouses===
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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.
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.


===Sponsoring spouses===
If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs and the needs of any dependent children. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms.
You have these responsibilities in addition to your responsibilities under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. A 2004 case of the Supreme Court, ''[http://canlii.ca/t/1q1m5 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.
If you are a sponsor and your relationship has ended, <span class="noglossary">contact</span> an immigration lawyer right away to find out exactly what your rights and obligations are.


===Links===
===Links===
*[http://www.clicklaw.bc.ca/resource/1073 Legal Services Society booklet, Sponsorship Breakdown]  
*[http://www.clicklaw.bc.ca/resource/1073 Legal Services Society booklet, Sponsorship Breakdown]  
*[http://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=1355&top=14]
*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.


{{REVIEWED | reviewer = [[Taruna Agrawal]], August 2, 2018}}
{{REVIEWED | reviewer = [[Taruna Agrawal]], May 24, 2019}}


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{{JP Boyd on Family Law Navbox|type=chapters}}
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