May 2, 2016

Parting Ways & PR: Can Divorce or Separation Affect Your Permanent Residence Status?

Posted by admin - Bellissimo Law Group PC

Conditional Permanent Residence: A two-year waiting period

The Federal government is proposing changes that would end the two-year waiting period for certain sponsored spouses and partners, and grant them unconditional permanent resident status upon their arrival in Canada.

Currently, certain sponsored spouses and partners must live with their sponsor for at least two years after obtaining permanent residence or risk losing status. Critics have argued that the sponsorship condition reinforces the ability of an abuser to exercise control over a sponsored spouse who, facing possible deportation, stays in an abusive relationship.

Until the government puts the proposed changes in place, certain sponsored spouses and partners continue to face such risks if their relationship with their sponsor breaks down within the two-year waiting period.

Why was the condition first introduced?

The condition was designed to deter foreign nationals from entering fraudulent marriages to quickly obtain permanent residence status in Canada. According to the government, these marriages of convenience “undermine the integrity of Canada’s citizenship and immigration programs.”

The condition, introduced back in 2012, requires certain sponsored spouses and partners to live in a continuous, conjugal relationship with their sponsors for at least two years after they become a permanent resident. Failing to meet this condition could result in loss of status.

An immigration officer can conduct random investigations to verify that the sponsored spouse or partner is complying with the condition (e.g. living in a “marriage-like relationship” with the sponsor). Even after the two-year period has passed, the officer can still investigate if he or she has proof that the couple was not living together during the two-year period.

To whom does the condition apply?

This condition applies to sponsored spouses and partners who:

  • applied for sponsorship on or after 25 October 2012
  • did not have children with their sponsor at the time they sent in their application
  • had been in a conjugal relationship with their sponsor for two years or less at the time they sent in their application.

Determining if this condition applies to a relationship is not straightforward. Consider the following examples of couples, with one Canadian sponsor and one foreign national (the sponsored spouse/partner), who had no children when they applied for permanent resident status on 25 October 2012. Assuming their sponsorship applications are all successful, which of the two couples do you think is bound by the condition?

  • Couple X dated for two years, got married, and then, one year later, made a sponsorship application as spouses.
  • Couple Y dated for a year, lived together in a common-law relationship for three years, got married and then, one year later, applied as spouses.

Answer: Both of them.

Couple X’s years of dating do not count and their one year of marriage falls short of the two-year requirement. Couple Y does not meet the minimum requirement either as they submitted an application as spouses (a married couple) – their previous three years of living common-law do not count.

If the couples separated within two years of the sponsored person obtaining permanent resident status, the sponsored person could lose his or her status. This loss of status could also affect the sponsored person’s accompanying family members who became permanent residents through the sponsored person’s application.

The condition is not absolute, however. Even if the sponsored person is bound by the condition, he or she will not automatically lose status if the relationship breaks down and the couple separates or divorces before the two year period. There are exceptions:

  • if the sponsor dies
  • if the sponsor subjects the sponsored person to certain types of abuse or neglect
  • if the sponsor fails to protect the sponsored person from such abuse or neglect.

In situations of abuse or neglect, the sponsored person can request an exception by contacting CIC. As not all individuals requesting an exception are successful, it’s advisable that the sponsored person speak to a support worker or a lawyer first.

For more information on Sponsorship, click here.