by Karen Kwan Anderson – Pace Immigration: Canada allows Canadian citizens or permanent residents to sponsor their family members to immigrate to Canada. Sponsors sign a Sponsorship Agreement to financially support the sponsored family members for a period of time. In the case of a sponsored spouse, the sponsor’s agreement is for 3 years from when the spouse becomes a permanent resident of Canada while for sponsored parents, the sponsor’s agreement is for 10 years.
Separation and divorce do not cancel the Sponsorship Agreement. Similarly, a breakdown in a relationship between parents and the sponsor does not cancel the Sponsorship Agreement.
Unfortunately, we hear from sponsors who experience financial and family problems after their sponsored relatives arrive in Canada. If you have a Sponsorship Agreement that is still in effect, read on.
In the case of a “runaway spouse” who leaves the marriage after becoming a permanent resident, we tell a sponsor that not only should he or she report the runaway spouse to the Canada Border Services Agency , but they should remember that as a sponsor they have a legal responsibility to pay back all monies if the runaway spouse receives social assistance.
On June 10, 2011, the Supreme Court of Canada in Canada (Attorney General) v. Mavi, 2011 SCC 30 (“Mavi”) stated that Canadian citizens or permanent residents who sponsor their family members are responsible for paying back all money when the sponsored family members have received welfare from the provincial or federal government within the period of the Sponsoring Agreement, ie. 3 or 10 years from landing.
Mavi involved eight sponsors whose relatives received social assistance after becoming permanent residents of Canada. The sponsors argue that the use of “may” in section 145(2) of the Immigration and Refugee Protection Act gave discretion to the Crown (government) to collect or not to collect the debt. The main issue in this case is whether the Crown must show procedural fairness when deciding whether to enforce the welfare debt.
What did Canada’s highest Court decide? It found that the Crown has a limited discretion to defer collection of debts, but not to forgive debt. Eventually, a sponsor must repay the debt involving the receipt of public funds. (By the way, a private debt such as one to a credit card company or a loan to be repaid to an individual or corporation is not considered a public debt – my editorial comment).
While the sponsors’ undertakings to support their family members are valid contracts which are subject to provincial law, federal immigration legislation govern these contracts. The intent of Parliament’s legislation is to require the full debt to be repaid if and when the sponsor is able to do so. Family reunification is based on the conditions that in exchange for admission to Canada, the needs of the immigrant will be looked after by the sponsor, and not by the public. The government must act fairly and consider the sponsor’s circumstances and financial means to pay, as well as the circumstances of the sponsored relatives.
The Court also commented that the government of Ontario did not improperly exercise its statutory discretion in adopting its current policy. Ontario’s policy seeks to balance the interests of promoting immigration and family reunification while preventing abuse of the sponsorship provisions of immigration legislation. There is no evidence that the limited procedural protections given by Ontario have in any way undermined or frustrated the debt collection objective or resulted in unfairness to family sponsors.
In summary, a government can defer (but not forgive) a sponsorship debt, and provincial and federal governments owe sponsors a duty of procedural fairness when enforcing sponsorship debts. The duty in these cases is quite minimal, but it does require the Crown, before filing a certificate of debt with the Federal Court to:
(i) notify a sponsor of its claim;
(ii) allow the sponsor an opportunity within to explain in writing his or her relevant personal and financial circumstances;
(iii) consider any relevant circumstances brought to its attention keeping in mind that the undertakings were the essential condition precedent to allowing the sponsored immigrants to enter Canada; and
(iv) notify the sponsors of the government’s decision.
The eight sponsors in Mavi began their sponsorship of family members as early as 1995 and received bills up to nearly $100,000 from governments after their sponsored family members received welfare. The Court’s decision gives guidance and clarifies the roles of current and future sponsors of members of the family class in the event of reliance upon social assistance.
The lesson of this story is that the sponsor will eventually have to pay back a welfare debt of their sponsored family member, if that debt was incurred during the relevant time period since landing.