Imagine this scenario: you are on vacation at a beautiful beach resort or other exotic locale. You meet a local. You smile, you flirt, you laugh. You fall madly in love and get married.
As soon as you get home, you want to sponsor your new spouse to join you in Canada because this is true love and you can’t bear to be apart for another minute.
You go through the process, you sign your undertaking to support your spouse for three years and to pay back any social assistance because hey, that’s not going to happen to you.
You patiently wait your several months of government processing, travelling back and forth to keep the love connection going, and are elated when the approval comes through. Your spouse is coming to Canada to live with you forever!
But s/he doesn’t. Your spouse doesn’t meet you at the airport, s/he took an earlier flight. You phone, you e-mail, you try talking to his/her family, and nothing. You’re devastated and feel used.
Then, it gets even worse. You receive a collections notice from the government because your spouse has been living on social assistance. They won’t tell you where, but they will send you a bill for what can be several thousands of dollars. You have nowhere to turn and a signed legal promise to pay the government back.
Sound pathetic? Maybe, but variations of this theme happen all the time, all across Canada. People marry for what they think is love, and when the sponsored person makes it to Canada, s/he disappears completely.
The sponsor is stuck with an undertaking for a person that has never made an effort at the relationship. It creates an untenable situation that has recently made its way to the Ontario Court of Appeal.
In Mavi v. Canada (Attorney General), the Ontario Court of Appeal overturned a lower court decision regarding sponsorship debt, stating that the Ontario and federal governments may, in certain circumstances, forgive sponsorship debt.
In order to do so, the government must evaluate each person’s case individually, considering individual circumstances and outcomes.
While this decision may yet wind its way through to the Supreme Court of Canada, as an immigration practitioner, I see this decision as a positive step in the right direction.
It sounds fanciful, but it really does happen. I get calls from sponsors who have realized that their ghost spouse filed for social assistance fairly regularly. They know the social stigma. They know that the person hearing their story thinks, “What an idiot to do all this for someone you don’t even know!”
They are devastated to have lost what they thought was true love. And they are enraged that the government does not take equal measures against a sponsored spouse who essentially conned their way into Canada.
In practice, it’s difficult to safeguard clients from this scenario. In my firm, we take measures to ensure every sponsor understands the legal ramifications of the undertaking fully before we submit the application. But in the blush of love, clients respond, “Oh, I understand all that Jennifer, but this won’t happen to us!”
I’ve had consultations where the sponsor had lots of documentation to support the relationship, but something seemed wrong. I’ve expressed concern, gone over the legal ramifications, and worked to make certain that everyone understands the risks involved.
At the end of the day, we can only manage our client’s expectations, not act as their relationship counsellors.
What’s the real cost of this?
Mavi states that by 2004, almost 7,500 sponsored relatives were on social assistance in Ontario alone, costing taxpayers a staggering $70 million annually. This is not a small amount of money. And in some cases, the sponsor should legitimately be on the hook for the social assistance amount.
However, I would imagine the number of cases where the Canadian and foreign spouses laugh all the way to the bank while claiming social assistance are few.
What if the family genuinely needs financial assistance due to a layoff or illness? Those individuals are in no better position to pay back the government than the spouse who has legitimately had no contact with the foreign national spouse since his/her becoming a permanent resident, cannot find him/her, or, as in the case of one of the appellants, believes the foreign national has been deported.
There must be room in the system for some compassion and flexibility. This decision appears to bring that compassion to the process.
On this issue, Citizenship and Immigration Canada would do well to take a page from the U.S. Citizenship and Immigration Services.
In the U.S., foreign nationals who are married for less than two years to a U.S. citizen are only given a conditional permanent residency. After two years, the conditional green card holder must show that s/he is still married to the U.S. citizen, or present compelling evidence as to why they are not married.
In fact, CIC already does this for entrepreneurs to Canada, so a comparable system is already in place and could be put into effect quickly.
While this doesn’t cure the problem, some scammers will scam regardless, it does give the sponsoring spouse some peace of mind that the government will check in down the road.
Nor does this abdicate the need for sponsors to follow the old adage, “buyer beware.”
As lawyers, we must work with our clients to ensure their expectations are managed and be certain they understand the risks involved in any type of legal undertaking. It’s our job to protect our client’s interests not run interception in their love lives.
There must be personal accountability, without question, but to have the brunt of any financial fallout fall only on the Canadian citizen or permanent resident is unjust.
Jennifer Nees is a senior associate at business immigration boutique firm, the Bomza Law Group. She can be reached at firstname.lastname@example.org