On March 9 2012 Minister of Citizenship, Immigration and Multiculturalism Jason Kenney announced additional measures to discourage marriage fraud. The proposed regulatory change was published in the Canada Gazette on March 10 2012.

Under the new proposal, conditional permanent resident status would apply to all spouses in relationships of two years or less who have no children with their sponsor at the time of the sponsorship application. A spouse or common-law partner who is granted conditional permanent resident status would be required to live with his or her sponsor in a legitimate relationship for two years following the receipt of permanent resident status. If this did not occur, the sponsored spouse or common-law partner's conditional permanent resident status could be revoked. For all legitimate relationships, the condition would cease to apply once the conditional period elapsed.

In order to protect spouses and partners who are in abusive relationships, the proposed condition would cease to apply in instances where there is evidence of abuse or neglect by the sponsor, or of a failure by the sponsor to protect from abuse or neglect by another person related to the sponsor (whether that person is residing in the household or not) during the conditional period. Evidence that the sponsored spouse or partner was cohabiting in a conjugal relationship with the sponsor until the cohabitation ceased as a result of the abuse or neglect would also be required. The exception would apply in cases where the abuse or neglect occurred during the conditional period and was directed towards:

  • the sponsored spouse or partner;
  • a child of either the sponsor or the sponsored spouse or partner; or
  • a person related to either the sponsor or the sponsored spouse or partner who was habitually residing in their household.

The condition would also cease to apply where there is evidence that the sponsor died while the sponsored person was still subject to the condition and that the sponsored spouse or partner had cohabited in a conjugal relationship with the sponsor until the time of the sponsor's death.

To some extent, this proposal is modelled after US immigration law. Where a US citizen or lawful permanent resident sponsors his or her immigrant spouse, based on a marriage that is less than two years old at the time when the spouse acquires lawful permanent residence, the immigrant spouse is given conditional permanent resident status for two years. Unlike the Canadian proposal, this condition applies regardless of whether there are children from the relationship.

Under US law, within 90 days of the second anniversary of the immigrant spouse's receipt of permanent residence, the sponsor and the immigrant spouse must jointly file a petition to remove the condition and establish that they are living together as husband and wife. There is also a procedure to apply for a waiver of the condition in cases of:

  • extreme hardship for the immigrant spouse;
  • good-faith termination of the marriage;
  • an abused spouse or child; and
  • the death of the US citizen or permanent resident sponsor.

Although the Canadian government's desire to discourage immigration fraud is not unreasonable, its proposal is problematic for a number of reasons:

  • It does not state clearly whether spouses and common-law partners who are subject to the condition will be required to apply formally to have the condition removed or whether this will automatically occur in the absence of a marital breakdown. A requirement to file a formal application would increase the workload of immigration officers and create added bureaucracy.
  • Unlike the US model, the Canadian proposal does not consider a good-faith termination of the marriage. In other words, it does not contemplate a termination of the marriage without fault of the sponsored spouse or common-law partner. The absence of such an exception places sponsored spouses and common-law partners at the mercy of their sponsors, who may use the threat of divorce proceedings to exert undue influence over them.
  • No guidelines have been provided regarding the evidence of abuse or neglect that will be required in order to terminate the condition. Many abused spouses do not report the other spouse's conduct to the authorities, which can make it difficult to establish abuse or neglect. In addition, uncertainty regarding whether an immigration officer will actually find abuse or neglect in a particular case may discourage immigrant spouses and common-law partners from ending these harmful relationships.

Before imposing conditional permanent resident status on sponsored spouses and common-law partners, the implications of such a requirement should be considered carefully in order to ensure that abused or neglected individuals are not subjected to unnecessary hardship.

For further information on this topic please contact Henry J Chang at Blaney McMurtry LLP by telephone (+1 416 593 1221), fax (+1 416 593 5437) or email ([email protected]).