Since Canada now accepts more immigrants than any other country on earth, it’s simply human nature that some of them are eventually going to run into family law problems. Sometimes family problems only happen decades after immigration. At other times they occur before immigration paperwork is even finalized. What every immigrant needs to realize is that family law problems can equally be immigration law problems if immigration status in Canada hasn’t been finalized, family assets are spread around the world, spouses decide they are going to live in different countries post-separation, or there is no agreement over where any children will live.
I practice both immigration and family law. Here are my top 5 tips for what every immigrant or spouse of an immigrant to Canada needs to know about both family and immigration law when a relationship fails.
1. ONCE YOU ARE A PERMANENT RESIDENT OF CANADA A RELATIONSHIP BREAKDOWN WON’T THREATEN YOUR STATUS
Even if you were sponsored as a spouse to come to Canada, and your spouse made a pledge to support you for a certain period, the fact that you split from your spouse during that guarantee period does not in any way imperil Permanent Residency (PR) that you’ve already been granted. You do not need to be concerned by spousal threats made in an attempt to intimidate you which claim that if you leave the relationship you’ll lose your children or your immigration status.
The sponsoring spouse's support obligations will continue even if you split, but there is no obligation to continue to live together during an immigration sponsoring spouse guarantee period. There was a short-lived attempt by a prior government to impose such an obligation, but that direction has now been reversed in recognition that it might promote continuation of living in an abusive relationship.
If you’re a PR, you’re a PR. So long as you uphold your residency and other obligations under the PR, your ex-spouse won’t be able to influence government decision making on your immigration status including whether you should eventually be granted citizenship.
2. IF YOUR SPOUSE YANKS YOUR SPONSORSHIP PRIOR TO YOU RECEIVING YOUR PERMANENT RESIDENCY YOU HAVE A PROBLEM
Because of the lengthy time spousal sponsorships can take to process by Immigration, Refugees and Citizenship Canada (often a range of 4 months to two years), it’s only natural some relationships are going to break down during that period. I'm frequently contacted by distraught spouses who have had their sponsorship yanked, some who have been living in Canada for a long time, others who had arranged their entire futures premised on an imminent move to Canada. What’s to be done?
You can’t force a spouse who is no longer a spouse to continue to sponsor you. To do so could in fact be an offence under the Immigration and Refugee Protection Act, and at the very least could trigger misrepresentation allegations. If your relationship breaks up, you need to immediately seek the advice of both an immigration lawyer for Canada and a family lawyer for wherever you are currently residing.
Even as a sponsoring spouse, you’ll need advice on your obligations to terminate the sponsorship. If there is a prospect of reconciliation, you might not need to immediately halt the sponsorship process, but you should immediately seek out legal advice as both sponsor and sponsoree could be liable for continuing a sham process.
There may be ways a previously sponsored spouse could continue to live in Canada, notwithstanding the revocation of the sponsorship. While various other measures should be attempted prior to a Humanitarian and Compassionate Grounds application to the Minister, an H & C could especially work if there are Canadian born children of the relationship. Even if you have not yet come to Canada as a sponsored spouse, there could be other ways to independently immigrate. Talk to an immigration lawyer; every situation is unique.
3. TRY TO AVOID GOING TO ANY CONTESTED FAMILY COURT
As a lawyer primarily practicing as a litigator, going to court is my business. So trust me when I say court is the last place you want to take your family problems if you can at all avoid it. Court should be a last resort, not a first resort, especially if there are potentially transnational family law issues in your case which could greatly increase complexity and cost.
Within reason, splitting spouses can voluntarily agree to just about anything when it comes to child custody, division of property, child support and spousal support (the Big 4 of family law). If you want a Canadian court to codify your separation agreement into a family law order (or at least to later enforce an agreement), you may be a bit more restricted on what you can voluntarily agree to. But certainly uneven splits of custody, property and support are entirely feasible (preferably with each party having independent legal advice), with child support being the issue courts will pay the most attention to since they want to ensure children are adequately provided for, regardless of the mutual intentions of the parties.
There’s nothing stopping you under Canadian law from initially concluding a separation agreement voluntarily by negotiation, and then going to court later if circumstances materially change. But be aware that the spouse seeking to vary the voluntary agreement’s terms will bear the burden in demonstrating change of circumstances, that courts are unlikely to interfere if less than 6 months have passed since the signing of the settlement, and trying to undo a division of property can be almost impossible. It is child custody and child or spousal support that are most prone to later variation.
4. IF YOU MUST GO TO FAMILY COURT PICK THE JURISDICTION WHERE MOST OF YOUR CHILDREN, PROPERTY AND THE OTHER SPOUSE ARE LOCATED
I recognize that for immigrants - especially more recent immigrants - children, property and spouses may not all be located in one country. They might not even be located in only two countries. But as a splitting immigrant spouse, or a spouse splitting from an immigrant, you need to conduct a very careful assessment of where you’re going to get the most judicial bang for your buck before starting court proceedings.
While some spouses might think forum shopping is the way to go, seeking to pick the jurisdiction whose law is most favourable to their position, that approach might be setting yourself up for expensive failure if you’re unable to enforce any order you get out of that jurisdiction in the jurisdiction where your spouse, children or property are actually located. Some mistakenly think enforcing a foreign order is a rubber stamp process, whereas in reality it can be like starting litigation all over again in the new jurisdiction. Yes, your foreign order might be mildly influential on worldwide results, but courts have a habit of being very territorial, insisting on applying the legal principles in force in their own jurisdiction, rather than simply adopted what a foreign court found to be just.
So even if you get a foreign order awarding you custody of the children, and spousal support, and splitting your matrimonial property in a way that is quite favourable to you, if you get the order in a place where none of your children, spouse or property are located, it may be a pyrrhic victory. Of course if some of your property is there, but not your children, then you might need to assess relative priorities in engaging in incremental family litigation that first secures some property rights, and later pursues custody issues. You might need to create a grid of pros and cons for each jurisdiction, and then reach out to family lawyers in each of those jurisdictions for them to give you assessments of your prospects of success in those locations.
5. BE VERY CAUTIOUS OF SELF-HELP FAMILY REMEDIES ALTERING THE STATUS QUO
Relationship breakdown is fundamentally about family change. Some immigrant spouses may decide as part of that change that they prefer to return to their country to origin, or to a third country, rather than remain in Canada. Even where both spouses are immigrants, one might be keener than the other on Canada, leading one to insist upon staying in Canada, and the other wanting to leave. The flip side can also happen, where an immigration hasn’t completed, leaving one spouse including children outside Canada when the relationship ends.
Canadian family courts (as well as the family courts of some other jurisdictions) are very keen on maintaining what’s known as the status quo pending either the voluntary agreement of the spouses, or an enforceable order of the court. This status quo means that children continue living and attending school where they’ve been for a settled period of time prior to the spousal split, and that family property is preserved.
One spouse rushing off to alter that status quo - by disposing of family assets, or even fleeting the country with the children - can be of great concern to Canadian courts, even if there isn’t a formal court order in place preserving that status quo. Courts may even go so far as to issue emergency ex parte (without notice) orders against a spouse where there is credible evidence that the status quo is being dramatically altered. And the status quo altering spouse may be so negatively perceived by the courts in future proceedings, that it becomes very difficult for that spouse to sufficiently redeem him or herself in the court’s eyes so as to receive equitable treatment.
So the message is spouses shouldn’t be fleeing the Canada with their children who are well established in Canada, or attempting to grab their children from foreign jurisdictions to bring them within the physical jurisdiction of Canada. Likewise, spouses shouldn't be liquidating all their domestic or foreign family assets on a self-help basis. If you think my points here seem overly obvious, I challenge you to go online and look at the litany of cases in Canadian courts where this is exactly what has happened.
The unfortunate upshot of family breakdown for immigrants or spouses of immigrants may be that each spouse requires both immigration lawyer advice and family lawyer advice. Family lawyers in more than one jurisdiction could even be needed. If voluntary agreement on settlement is possible, overall legal costs don’t need to rise to significantly beyond those that would be typical in a purely Canada-based separation. But if court action breaks out, spouses may need to prepare for a multiplicity of transnational proceedings, and especially evaluate in which jurisdiction their legal resources are best employed taking into account respective locations of the spouses, family assets and children.
Gordon S. Campbell practices immigration law across Canada and family law throughout Ontario. He has litigated transnational cases for the Department of Justice Canada including representing foreign states, and collaborated on UN, APEC, OECD, World Bank, and G8/G20 projects including serving as a delegate for Canada. Learn more about the family practice at nofearfamilylaw.com and immigration practice at compleximmigration.ca.