Beware the Marriage of Convenience

By Patrick Rocca | September 11, 2012

Karen Kwan Anderson – Pace Immigration Lawyer:

Here’s a modern twist on the “Dear John” letter:

Dear John: It’s been one year since I landed in Canada after being sponsored by you. I now want out of our marriage. Since you and I don’t have any kids and we don’t own any property together, let’s apply for a quickie divorce to end our marriage, so that I can marry the guy I really love and sponsor him to Canada.

John’s response to Jane may look like the following: “Dear Jane: Go ahead.”

The topic of fake marriages has again become the centre of our Pace team discussions on what’s happening now in Canadian immigration law and procedure.

Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism speaks of protecting Canadians by introducing tough measures to combat fraud in which persons gain a privilege, benefit or status in Canada by breaching the Immigration and Refugee Protection Act.

One such scenario involves a “Marriage of Convenience” (known as “MOC”), in which a foreign national misrepresents their true intentions by marrying their sponsor in order to facilitate immigration to Canada with no intention of staying permanently with the sponsor.

Do not become a dupe of a MOC!

Either or both of the partners in the marriage are complicit in the fraud. More likely than not, the sponsored spouse may be subject to prosecution for engaging in direct or indirect misrepresentation that induced an error in the administration of the Act. Although rare, the sponsor may be prosecuted for counseling the making of a misrepresentation.

In the example above, John should seek advice from a competent Canadian immigration lawyer and an Ontario family law lawyer.

I am qualified only to comment on the Canadian immigration aspect of this scenario. In our experience, these “Aggrieved Spouses” cases end with the sponsor (who is John in our example) reporting the intentions of the sponsored spouse (Jane in our example) to the Canada Border Services Agency (CBSA). After reviewing the facts of John’s complaint, CBSA may start an investigation into Jane. CBSA would interview Jane to closely examine the circumstances and dates of Jane and John’s first meeting, wedding, when the sponsorship was filed, when Jane became a permanent resident of Canada, and when the marriage began to break down.

If the facts support an allegation of misrepresentation against Jane, CBSA will issue a “section 44” report against Jane. She would proceed to an admissibility hearing at the Immigration Division. She would likely receive an Exclusion Order to leave Canada due to a finding of misrepresentation, no matter how strong her humanitarian and compassionate factors. She is expected to remain away from Canada for 2 years and apply all over to re-enter Canada.

Since Jane is a permanent resident of Canada, she has the right to appeal the Exclusion Order. The appeal suspends the Exclusion Order. If the Immigration Appeal Division (IAD) finds there are sufficient humanitarian and compassionate grounds to overcome the finding of misrepresentation, it will allow the appeal, whose effect sets aside the Exclusion Order.

For Jane to win an appeal, the key is to present documentary evidence and testimony at the hearing to persuade the IAD to exercise its equitable jurisdiction to grant the appeal.

While John may want Jane deported as soon as possible, he should keep in mind that it is difficult to remove a permanent resident from Canada. Currently, it takes at least 2 years to get an appeal hearing date in the Toronto office of the IAD.