Canada Immigration’s Revenge: Divorces of Convenience

By Author: Admin | October 4, 2010

The Canadian Immigration Department has a policy branch that no doubt has eyes and ears all over Canada’s immigration system through statistics, among other methods.  No doubt, there were some statistics that indicated a pattern whereby, for example, a Joe and Jane Smith, married and citizens of a country other than Canada, wanted to live together in Canada, (in other words, wanted immigration to Canada), but had neither the business acumen, or the in-demand skills or education to immigrate under Canada immigration’s selection grids.  Their solution: a divorce of convenience.

In this scenario, Joe and Jane Smith would divorce, and Jane Smith would marry Bob Jones who was a Canadian citizen.  Bob Jones would then sponsor Jane Smith.  A Canadian visa office overseas would process the marriage sponsorship of Bob Jones and Jane Smith.  A visa officer would assess the marital relationship of Bob Jones and Jane Smith, determining that it looked like a real marriage, and then issue Jane Smith a permanent resident visa.

Jane Smith would then get her Canadian visa, land in Canada, and then divorce her sponsor, Bob Jones.  Having acquired her Canadian permanent resident status, Jane Smith would remarry her first husband Joe Smith, and then sponsor her first husband, Joe Smith for Canadian Immigration.

The marriage sponsorship visa of Joe Smith would then be processed at a Canadian Immigration visa office outside of Canada.  In this scenario, the visa officer would interview Joe Smith, and after excoriating Joe Smith at his interview, (due to the way his wife obtained her Canadian immigration status), would reluctantly issue a Canadian visa to Joe Smith. [1]

On July 22 2004 the above loophole became plugged.  On that day, s.4.1 of the Immigration and Refugee Protection Regulations came into effect.  Section 4.1 states that a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the foreign national has begun a new conjugal relationship with that person after a previous marriage, common-law partnership or conjugal partnership with that person was dissolved primarily so that the foreign national, another foreign national or the sponsor could acquire any status or privilege under the Act.

Had Joe and Jane Smith been faced with the above section, immigration to Canada would be characterized by more scrutiny.  Specifically, the Canadian visa officer would pose questions about how and why Joe and Jane Smith divorced, whether or not Jane Smith’s marriage to Bob Jones was a real one, and how was it that Joe and Jane Smith reunited.  I have had success against the allegation that my client engaged in a divorce of convenience where it was determined there was no marriage or conjugal partner before the sponsor sponsored her husband for immigration Canada.

On September 30 2010, the Immigration Department made the task of assessing marriages and similar relationships easier (for Canadian visa officers) by making the following amendment to the Immigration Refugee Protection Regulations:

4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
(b) is not genuine.

4. (2) A foreign national shall not be considered an adopted child of a person if the adoption

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
(b) did not create a genuine parent-child relationship.

4. (3) Subsection (2) does not apply to adoptions referred to in paragraph 117(1)(g) and subsections 117(2) and (4).

Visa officers overseas who are assessing applications for Canadian immigration need only choose one or the other method of refusing an application:

They will allow officers to determine that a spousal, common-law or conjugal relationship is not bona fide if it is either not genuine or was entered into primarily for the purpose of acquiring a status or privilege under the Immigration and Refugee Protection Act. Henceforth, only one of the two criteria will need to be present to determine that a relationship is not bona fide.

[1] In an alternative scenario, the Canadian visa officer would somewhat arbitrarily refuse Joe Smith, necessitating an appeal by his sponsor to the Immigration Refugee Board Immigration Appeal Division.  After excoriating Jane Smith and/or Joe Smith, the IRB would deem the relationship a real marriage leading to the Joe Smith’s immigration to Canada..

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I was born and raised in Toronto, Ontario Canada. I am an accomplished author and lecturer and am consulted by the media and other immigration lawyers and consultants on immigration matters and challenging immigration cases, appeals, and federal court matters.

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