In 2010, Stephen Harper’s government amended the Immigration and Refugee Protection Regulations to create two separate and distinct grounds for refusing a marriage sponsorship.
Prior to this amendment, a marriage could only be refused for being non-genuine if it was entered into primarily for the purpose of acquiring any status or privilege under the act, and it was not genuine. This meant that if you chose a wedding date so that a sponsorship application could be filed in a timely way, or if the marriage was arranged through cultural traditions different from western concepts of marital union, provided the relationship was intended to last and was not a sham, the couple would be united in Canada as husband and wife. In 2010 this changed. From that day forward, a marriage that was genuine and intended to be permanent and that was not a sham or scheme to get into Canada could be rejected if the parties married for the primary purpose of obtaining status in Canada. And it was all done by replacing the conjunction “and” with a disjunction “or.”
But how could the primary purpose be to get into Canada if the marriage was bona fide? When first enacted, it appeared that little would change in these assessments of marriages and common law relationships and that only relationships of convenience (shams) would continue to be rejected. In fact, the Regulatory Impact Analysis Statement (RIAS) issued to explain the amendment offered little guidance on who was being targeted or what defect was being addressed. All it said was it was meant to make it easier to maintain the integrity of our immigration law. Not much in the way of purpose.
But then the amendment to s. 4 of the regulations started to wake up. Suddenly, real, indisputable marriages were being refused, even where children had been born to the couple, in circumstances in which the choice of partner was undertaken because he or she lived in Canada. Many of the culturally arranged marriages from countries such as India and Pakistan, to name but two, are orchestrated because the sponsor is in Canada, rather than back home. A selling point used by some families in their “negotiations” for a prospective spouse is the country of residence of the sponsor. Canada is a good country, so choose our niece or cousin or brother to marry. This type of arrangement is not uncommon and is not in any way considered to be indicative of a fraudulent scheme to gain Canadian status. That’s just how marriages are arranged, in some cultures — marriages that may last a lifetime. Under the 2010 amendment, these relationships were suddenly impermissible under our immigration law and actual life partners were subject to rejection and permanent separation.
In other scenarios, bona fide couples could face rejection in sponsorship attempts if they hastily married in order to quicken their sponsorship processing times or in order to ensure that a spouse could remain in Canada awaiting a determination on a sponsorship application. This was the circumstance in Burton v. Canada (Minister of Citizenship and Immigration) [2016] F.C.J. No. 308. Here, the spouse in Canada married “before she was ready” in order to ensure that her partner could stay in Canada. After marriage, the couple resided together in a bona fide relationship. However, given the nature of their marriage and its then purpose, the sponsorship was rejected and an appeal to the IAD refused on the grounds that they had married primarily to ensure status for the foreign national. This was true, but they also were a genuine couple. The Federal Court dismissed a judicial review application of this decision and so upheld the law that actual bona fide couples could be permanently separated from one another. As no question was certified, it remains for Parliament to act to correct what is a very bad law.
