Difference between revisions of "Newcomers to Canada and Family Law"

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|ChapterEditors = [[Taruna Agrawal]]
|ChapterEditors = [[Taruna Agrawal]]
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===Immigration Matters===
==Immigration matters and family law==


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.
Problems involving immigration usually crop up because one spouse has sponsored the other spouse to come to Canada and the relationship has ended. Below is an overview of some issues that can 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 between ''family law'' and ''immigration law''.


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:
===Use of the term “common-law” or “spouse”===


===Use of the term “Common Law” or “Spouse”===
The [http://canlii.ca/t/7xsp Immigration and Refugee Protection Regulations] use the term "common-law partner" and defines it as follows:
<blockquote><tt>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.</tt></blockquote>


''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 ''spouse'' under section 3(1) of the act. The definition is exhaustive, and captures unmarried people who live in a "marriage-like" relationship, but that relationship has to continue for at least ''two years''.  


The ''Family Law Act'' in BC does not use the term “common law.” It defines ‘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:
Notice the time difference?


3(1)A person is a spouse for the purposes of this act if the person
Just because you qualify as a common-law spouse under Canadian immigration law, does not mean that you will necessarily qualify as a spouse for the purposes of ''Family Law Act''.


(a) is married to another person, or
===Best interests of the child===


(b) has lived with another person in a marriage-like relationship, and
Section 37(1) of the ''[[Family Law Act]]'' states that best interests of the child is the only consideration when making decisions about guardianship, parenting arrangements, and contact with the child.  
(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 purposes of ''Family Law Act''.


===Best Interests of the Child===
Section 3(1)(d) of the ''[[http://canlii.ca/t/7vwq Immigration and Refugee Protection Act]]'' states that one of the objectives of the act is "to see that families are reunited in Canada." A very important case for immigration law, ''[http://canlii.ca/t/1fqlk Baker v. Canada (Minister of Citizenship and Immigration)]'', [1999] 2 SCR 817 says that "the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them."


Section 37(1) of the ''Family Law Act'' states that best interests of the child is the only consideration when making decisions about guardianship, parenting arrangements, and contact with the child.
===Sponsor's obligations===


Section 3(1)(d) of the ''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 the interests of the children.
Both family law and immigration law outline a stepparent's obligation to provide for the sponsored dependent in some way.


===Sponsor’s Obligations===
As discussed in the chapter on [[Child Support]], under the heading "Stepparents and child support", section 147(4) of the''[[Family Law Act]]'' imposes a duty on stepparents in some cases to pay child support.


Both family and immigration law outline a stepparent’s obligation to provide for the sponsored dependent in some way.
If your Canadian partner sponsored you and your children to come to Canada, and helped support that child for at least one year, then you may be able to get a child support order under the ''Family Law Act''. Be aware of the one-year limitation period noted in section 147(4)(b) above.


Section 147(4) of the''Family Law Act'' states that “A child’s stepparent does not have a duty to provide support for the child unless
Immigration rules also state that a sponsor has certain obligations to provide for their spouse's needs and the needs of any dependent children. These responsibilities are for a fixed amount of time called a ''length of undertaking''. Refer to [http://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=1355 the CIC website] for a table showing the different lengths of undertaking depending on who is sponsored.


(a) the stepparent contributed to the support of the child for at least one year, and
Family law and immigration law impose different obligations when it comes to support. One family law case from BC Supreme Court, ''[http://canlii.ca/t/1q1m5 Aujla v. Aujla]'', 2004 BCSC 1566, indicates that a sponsor's obligations under a sponsorship agreement (obligations between the sponsor and the federal government), are separate from the sponsor's obligation to pay spousal support (an obligation from one spouse to another). If you were sponsored, have dependents, and your relationship with the sponsor has now ended, talk to a lawyer to discuss your entitlement to support.
 
(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 [http://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=1355&top=14 this page on the CIC website] that outlines this undertaking.
 
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 to support.


===Sponsorship application===
===Sponsorship application===
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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.


===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 How long am I financially responsible for the family member or relative I sponsor?]
*[http://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=1355&top=14 How long am I financially responsible for the family member or relative I sponsor?]
*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]], May 24, 2019}}
{{REVIEWED | reviewer = [[Taruna Agrawal]], May 24, 2019}}
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