Divorce is a challenging and emotional experience, and it can become even more complex when Canadian immigration status is involved. For newcomers to Canada, the end of a marriage can raise serious questions about their Canadian immigration legal rights, permanent residency status, and future. Whether you arrived as a sponsored spouse or are applying for Canadian permanent residency (PR), it's essential to understand how a separation may impact your immigration situation.

In this guide, we’ll break down what you need to know about the legal implications of divorce for Canadian immigration newcomers.

Sponsorship Obligations and Divorce

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When sponsoring a spouse or partner for Canadian immigration, you commit to financially supporting them through a legal agreement based on Canadian Spousal Sponsorship. Obligations include the following.

  • Providing for their basic needs, such as food, clothing, shelter, and uncovered health services like dental and eye care, for a fixed period, even if your relationship ends in divorce or separation.
  • Understanding the sponsorship process remains in effect regardless of changes in circumstances, including financial hardship, relocation, or the sponsored person's acquisition of Canadian citizenship.
  • Knowing that for most Canadian provinces or territories, the Canadian spousal sponsorship process period is three years from the date the sponsored spouse or partner becomes a Canadian PR.
  • If your sponsored person receives social assistance during this time, you must repay the government in full, and no new sponsorships can be initiated until this debt is cleared.
  • Taking note that the Canadian spousal sponsorship cannot be cancelled once approved, though a withdrawal request can be submitted before a final decision is made on the application.

These long-term financial and legal responsibilities involved are essential before agreeing to sponsor a spouse or partner, especially given the contractual nature of the Canadian spousal sponsorship, even after a marriage or relationship has ended.

Impact of Divorce on Your Canadian Permanent Residency Status

Divorce can be an emotionally and legally complex process, particularly for newcomers to Canada whose immigration status may be tied to a spouse through Family Sponsorship. Canadian immigration policy provides essential protections for individuals sponsored as spouses or partners, ensuring that their Canadian PR status is not automatically affected by the end of a marriage.

Risk of Misrepresentation

An important factor remains: the risk of misrepresentation. Immigration, Refugees and Citizenship Canada (IRCC) monitors applications for signs of fraud, including marriages of convenience - relationships entered solely to obtain immigration status. If IRCC has reason to believe that a marriage was not genuine and was instead used to circumvent Canadian immigration laws, it may launch an investigation. If fraud or misrepresentation is proven, IRCC has the authority to revoke the individual’s Canadian permanent residency and, in some cases, initiate removal proceedings.

It’s important to note that the breakdown of a genuine relationship is not considered misrepresentation. IRCC recognizes that even sincere relationships can end in divorce or separation, and the legal system does not penalize individuals simply because their marriage did not work out. In such cases, the individual’s Canadian permanent residency remains intact, provided no fraudulent intent was involved in the original sponsorship.

Conditional Permanent Residence (No Longer Applicable)

Until 2017, Canada enforced a policy known as conditional permanent residence for certain sponsored spouses and partners. Under this rule, individuals who had been in a relationship with their sponsor for less than two years and had no children in common were granted permanent residency on the condition that they live with their sponsor for at least two years after they arrive in Canada. If the couple separated during this period, the sponsored individual risked losing their Canadian PR status.

However, in April 2017, the Government of Canada abolished this rule in recognition of the potential for abuse and the undue burden it placed on vulnerable newcomers, particularly those facing domestic violence or coercive relationships. As a result of this policy change, divorce or separation no longer automatically endangers your Canadian PR status for sponsored spouses or partners. If a sponsored individual has already been granted Canadian PR, they are not required to remain in a relationship with their sponsor to maintain it. This protection applies even if the relationship ends shortly after Canadian PR is obtained, as long as the relationship was genuine at the time of the sponsorship application.

Divorce During the Sponsorship Process

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A marital breakdown occurring while a spousal sponsorship application is underway in Canada can create significant legal and immigration challenges. Here is a breakdown of the divorce process during the Canadian sponsorship process.

Before PR Approval

Divorce can significantly impact the sponsorship process, mainly if it occurs before the sponsored spouse obtains Canadian PR. If a couple separates before Canadian PR approval, IRCC allows the sponsor to withdraw the application. This must be done in writing, and once the withdrawal is processed, the sponsored spouse’s application will be refused unless they qualify for another immigration stream, such as Express Entry or a Canadian work permit. The sponsorship is considered invalid if the relationship has ended, as the basis of the application, a genuine and ongoing partnership, is no longer present.

After PR Approval

The situation changes after Canadian PR is granted. If a couple divorces after the sponsored spouse becomes a permanent resident, their immigration status remains unaffected. Canadian PR status is not revoked due to a marital breakdown, provided no misrepresentation occurred during the application. The sponsored spouse can continue on the path to Canadian citizenship independently, assuming they meet residency requirements ( three years out of the last five).

However, it’s important to note that the sponsor remains financially responsible for the sponsored person for up to three years, regardless of the divorce. This legally binding agreement with the Government of Canada cannot be cancelled, even after separation. Sponsors may still be required to repay social assistance costs if the sponsored spouse receives benefits during this period.

Being aware of these implications is important for sponsors and applicants going through divorce during the sponsorship process.

Steps for Newcomers Going Through Divorce in Canada

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Going through a divorce can be challenging for anyone, but newcomers to Canada face unique immigration-related implications. Here are key steps to help you go through this transition:

Step 1: Update the IRCC

Newcomers to Canada must notify IRCC immediately of any change in marital status. This is especially important for those who were sponsored under the family class. Failing to update IRCC may be considered misrepresentation, which can have serious consequences, including removal from Canada. If a sponsored spouse begins receiving social assistance, the sponsor may be financially liable and required to repay the government. The sponsorship agreement lasts three years, regardless of marital breakdown.

Step 2: Secure Independent Status

Sponsored spouses without Canadian PR status should take steps to secure independent immigration status. If eligible, applying for an open work permit can provide the flexibility to work for any employer and gain financial independence. Individuals can explore permanent residence options through Express Entry or Provincial Nominee Programs (PNPs), particularly if they have Canadian work experience, education, or a job offer.

Step 3: Legal Considerations

You must consult an immigration lawyer or legal clinic to understand your rights and responsibilities during a divorce. If children are involved, ensure custody arrangements align with Canadian family law, prioritizing the child’s best interests. Proper documentation and legal support can help avoid complications with immigration and family law matters.

FAQs

Are There Any Scenarios Where I Can Be Barred From Spousal Sponsorship?

Yes, there are certain circumstances under which you may be barred from sponsoring a spouse to Canada. These include not meeting financial obligations from a previous sponsorship, being in prison, or having declared bankruptcy and not been discharged.

If I Divorce, am I Still Responsible For Any Sponsorship I Have Made For my Former Spouse?

Yes, divorce does not cancel your Canadian spousal sponsorship process. You are financially responsible for your former spouse for the entire sponsorship period, even if your relationship ends. This obligation generally lasts three years from the date they become a Canadian PR.

Where Can I Get Legal Advice About How My Divorce Will Affect My Canadian Immigration Status?

You can consult an immigration lawyer or a Regulated Canadian Immigration Consultant (RCIC) for legal advice tailored to your situation. Many community legal clinics across Canada also offer free or low-cost support for newcomers. It's essential to seek advice early, especially if your immigration status is tied to your spouse.