Family reunification is one of the goals of the Immigration and Refugee Protection Act (IRPA).[3] Under this legislation, permanent residents and Canadian citizens may apply to sponsor spouses or common-law partners for immigration to Canada as permanent residents. This chapter explains the requirements for spousal sponsorship and describes measures the Government of Canada has taken to mitigate the potential for abuse of sponsored spouses and to ensure victims receive support. It also describes the recourse available under IRPA and the Immigration and Refugee Protection Regulations[4] (Regulations) for women whose sponsorship has broken down for reasons of abuse.

A. The Spousal Sponsorship Program

Section 12 of IRPA provides that spouses or common-law partners[5] may be granted permanent residence based on their relationship to a Canadian citizen or permanent resident (the sponsor). The sponsor must satisfy certain requirements, as indicated in the Regulations,[6] and the spouse must not be inadmissible under IRPA.[7]

The marriage at the heart of any sponsorship must be legally recognized according to the law of the jurisdiction where it occurred and according to Canadian federal law.[8] Proxy marriages, which occur when one of the participants is absent and has named a proxy to represent her, are legal in some countries and Canada permits their use for immigration purposes.[9] Similarly, arranged marriages – arranged by family or a marriage broker with the consent of the parties – are legal in some countries and recognized for immigration purposes in Canada. However, polygamous marriages, which occur when one or more participants already has a spouse, while also legal in some countries, are not permitted in Canada. The Regulations exclude from sponsorship marriages entered into for the purpose of acquiring immigration status in Canada (sometimes called marriages of convenience or bad faith relationships), marriage to minors, and marriage to spouses or partners who are married to someone else (i.e. polygamy).[10]

Sponsored spouses may be living abroad or in Canada. Those already in Canada submit what is called an in-land application, meaning that they remain in Canada (typically with temporary immigration status such as a visitor, student, or temporary foreign worker) while the spousal sponsorship application for permanent residence is processed. For an in-land application to be accepted, the sponsored spouse must be cohabiting with the sponsor and must have legal temporary immigration status, although the requirement for legal immigration status may be waived if the spouse is otherwise admissible to Canada.[11]

In 2012, the government made a number of changes to the spousal sponsorship program in an effort to deter people from using marriages of convenience to circumvent immigration rules.[12] Most notably, sponsored spouses cannot sponsor a new spouse unless five years have passed since they obtained permanent resident status.[13] As well, the government introduced conditional permanent resident status for certain sponsored spouses.[14] The condition applies to a spouse who has been in the marriage/relationship for two years or less and has no children with the sponsor. With conditional permanent residence, the sponsored spouse is required to cohabit in a conjugal relationship with her sponsor for a period of two years after the day on which she became a permanent resident. An exception to this condition is provided for situations of abuse or neglect. If a sponsored spouse fails to meet the condition and does not qualify for an exception, her permanent resident status may be revoked and she could be removed from Canada.

Officials from the Department of Citizenship and Immigration Canada (CIC) informed the Committee that from October 2012 to January 2014, 9,637 conditional permanent resident visas were issued.[15] Between July and September 2013 in Ontario alone, 190 tips were received by government officials about conditional permanent residents whose relationships were possibly not genuine; 7 departure notices were issued.[16] Over the year prior to February 2014, the CIC call centre received 12 calls from sponsored spouses in an abusive situation.[17]

B. Measures Taken to Mitigate the Potential for Abuse and Ensure Victims Receive Support

The Government of Canada has taken several measures over time to mitigate the potential for abuse in spousal sponsorship and to ensure that abused sponsored spouses receive the support they require. These measures include providing information to sponsors and sponsored spouses, regulatory changes, settlement services, and training for immigration officers and border agents.

In terms of information provided, the sponsor and sponsored spouse must both sign the sponsorship agreement as part of the application package, which outlines the obligations of each party. Under the heading of “important information,” the sponsorship agreement states:

Sponsored persons and or their family members who are being abused or assaulted by their sponsors should seek safety away from their sponsors even if this means that they will have to apply for social assistance benefits. A sponsor cannot force Citizenship and Immigration Canada to remove you from Canada.[18]

CIC has also developed a brochure that explains conditional permanent residence, what is considered abuse or neglect, and how to request an exception to the cohabitation condition. The brochure is available online, at ports of entry, and through service providers and was being translated into languages other than French and English at the time of the CIC officials’ appearance before the Committee in February 2014.[19]

As well, section 72.1(6) of the Regulations provides that a sponsored spouse may apply for an exception from the condition on her permanent resident status in situations of abuse or neglect. Operational bulletin OB 480 provides extensive instructions to CIC immigration officers on how to handle requests for exception because of abuse or neglect, including acceptable evidence, safety precautions, and considerations for assessing such cases.

The government also uses orientation material such as the Welcome to Canada book and the citizenship study guide Discover Canada to explain Canadian values and inform newcomers of some practices accepted elsewhere that are not acceptable in Canada. For example, under the heading of “equality of men and women,” the Welcome to Canada guide reads: “Canada’s openness and generosity do not extend to barbaric cultural practices that tolerate spousal abuse, honour killings, female genital mutilation, forced marriage or other gender-based violence.”[20]

In terms of regulatory changes, the Immigration and Refuge Protection Regulations of 2002 included a sponsorship bar for individuals in default of court-ordered spousal or child support payments and also barred persons convicted of a personal injury crime from sponsoring for a limited time period. At the same time, the undertaking period – the duration for which the sponsor agrees to provide basic requirements for his spouse – was reduced from ten years to three “given concerns that family violence is aggravated by the implied dependency created by the undertaking of support.”[21]

More recently, the bar on offenders sponsoring a member of the family class was amended in response to the Federal Court decision Canada v. Brar (2008 FC 1285). In this decision, a man convicted of killing his sister-in-law was allowed to sponsor his own wife. The amended Regulations specify that persons convicted of violent offences against anyone are barred from sponsorship.[22] Persons convicted of an offence that results in bodily harm against an expanded list of people are also barred from sponsorship. In both cases, the bar remains in place until the offender is pardoned, acquitted, or five years have passed since the completion of their sentence.

In terms of settlement programs, CIC has allocated more than $588 million in grants and contributions to service provider organizations to provide settlement assistance for 2014–2015.[23] This funding includes money for service providers to deliver pre-arrival services to some immigrants in their country of origin. It also includes money for organizations in Canada to deliver a range of services in Canada, including language instruction and an introduction to life in Canada. Of relevance to abuse-prevention, the Committee heard that:

Many CIC-funded organizations provide targeted programming designed for specific groups, including women. For example, women's-only language classes for immigrant and refugee women cover issues such as family violence, spousal abuse, women's rights, legal rights and responsibilities, and health care, and include bridging or referral to other available services in the community.

Support services also exist in the area of crisis counselling, in which organizations assist women through short-term, non-clinical counselling, and then refer them to a variety of local resources including police, shelters, and clinical counsellors in order to provide immediate assistance to individuals in violent situations.[24]

Finally, CIC officials also stated to the Committee that guidelines and training have been developed for immigration officers specifically on the exception to conditional permanent resident status noted above, so “they are more sensitized to these types of issues and are better prepared to deal with them.”[25] The Canada Border Services Agency (CBSA) also reported that “officers are trained to be sensitive to issues where the persons may be vulnerable, or in vulnerable situations.”[26] CBSA has also produced an intelligence brief on forced marriage, which is distributed to CBSA and CIC officers on the front lines.[27]

C. Immigration Recourse Available to Spouses with Abuse-related Sponsorship Breakdown

When a sponsorship breaks down because of abuse, the spouse’s immigration status is an important determinant of the recourse available to her. Spouses sponsored from overseas who are not subject to conditional permanent resident status arrive in Canada with permanent resident status. Their immigration status and right to remain in Canada is therefore secure even in the case of a sponsorship breakdown. Thus, no immigration remedy is necessary for this group.

Spouses who arrive in Canada from overseas with conditional permanent resident status may apply to avail themselves of the exception to the cohabitation condition provided by the Regulations in situations of abuse or neglect. Section 72.1(7) of the Regulations defines abuse, stating that it may be physical (including assault and forcible confinement), sexual, psychological (including threats and intimidation), or financial. If an exception to the condition is granted, the sponsored person maintains permanent resident status.

In order to request an exception from the application of the condition on the basis of abuse, the sponsored spouse must first call the CIC call centre and she must provide evidence that abuse was the reason for the breakdown of the marriage.[28] A list of possible evidence is provided to immigration officers who will be making this assessment. It includes, among other examples, proof of abuse such as police reports, a letter from women’s shelter, photographs, and sworn statements.[29]

Spouses whose in-land sponsorship breaks down find themselves without the pathway to permanent residency – spousal sponsorship – they had expected. There is no specific immigration remedy in Canadian law for these spouses, left with temporary or no legal immigration status. Provided they meet the eligibility criteria, such as levels of education, official language proficiency, and relevant work experience, they may apply for permanent residence through any of the economic class programs, such as Federal Skilled Worker or Canadian Experience Class.

Another option for abused spouses without permanent immigration status would be to apply for permanent residence on humanitarian and compassionate grounds, a discretionary program that allows people to submit an immigration application which, under other circumstances, would be rejected because it fails to meet a basic requirement of the Immigration and Refugee Protection Act. The humanitarian and compassionate application is assessed based on the hardship the person would face if an exemption was not granted.[30] These applications must also take into account the best interests of a child directly affected.[31]

The possibility that family violence could place a sponsored spouse in a situation of hardship is specifically mentioned in the guidelines for CIC immigration officers concerning applications on humanitarian and compassionate grounds.[32] Officers are instructed to consider the evidence of abuse, whether there is a degree of establishment in Canada, hardship that would result if the applicant had to leave Canada, laws, customs, and culture in the applicant’s country of origin, available support of relatives and friends in the country of origin, and whether the applicant has children in Canada or is pregnant.[33]