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The Fundamentals of Sponsoring a Spouse

By Atty. Henry Moyal

Atty. Henry Moyal and Pops Fernandez (photo courtesy of www.moyal.com)

Atty. Henry Moyal and Pops Fernandez (photo courtesy of www.moyal.com)

Q. I have been a Canadian Citizen for nearly two decades. I have never sponsored anyone before. I want to sponsor my wife who is a Filipina and in Canada now as a visitor. Her status as a visitor will be expiring soon and she has heard from people in the community that she must leave Canada. I am trying to reassure her that since I am a Canadian, I have the right to sponsor her and no one can refuse the application. I never sponsored anyone before and therefore I do not see how I can be refused. Isn’t it my absolute right to sponsor her?

A. I think you may be confusing two aspects of a sponsorship. There is a big difference between eligibility and ultimate outcome. You may be eligible but it does not mean you will be successful. Immigration officer must determine that the marriage is genuine. Conversely, even if the marriage is genuine, a sponsor may be ineligible for several reasons. For example:

Sponsors cannot sponsor if:

1. They are permanent residents subject to a removal order – this includes stayed orders, departure orders, exclusion orders and deportation orders.

2. They are detained in any penitentiary, jail, reformatory or prison

3. They are convicted of a sexual offence under the Criminal Code (against anyone); or an offence (against the person) under the Criminal Code against a family member

Sponsors or co-signers convicted of either of these offences where five years have not passed since the completion of the sentence imposed

4. They are in default of spousal or child support payments ordered by a court. This includes payments ordered by a court outside of Canada.

5. They are an undischarged bankrupt under the Bankruptcy and Insolvency Act

The property of the bankrupt is placed in the hands of a trustee,
who works out an arrangement with creditors.
-for first-time bankrupts, a discharge is automatically 9
months from the date of bankruptcy, unless a stakeholder
objects to this discharge for reasons such as the bankrupt
failed to live up to their obligations;
- in other cases, a bankrupt can apply for a discharge by a
court, after 9 months (or earlier, in limited circumstances).

6. They are in receipt of social assistance other than for reasons of disability

7. Sponsors are in default if they have not honoured a previous sponsorship undertaking;

8. The sponsor immigrated to Canada by way of a spousal sponsorship and five years have not passed

On the other hand, it is important to note that even if the sponsor if eligible the following are considered excluded relationships in relation to the applicant seeking immigrant status:

1. Spouse is under the age of 16

2. Sponsor has existing undertaking not yet ended for another spouse, common-law partner or conjugal partner
Sponsors of spouses or partners under the previous Act, who signed 10-year undertakings must wait 3 years before
being eligible to sponsor again. Their 10-year undertakings are nevertheless valid for the full 10 years; only the
exclusion is shortened to 3 years.

3. Bigamous or polygamous relationships

4. Separated or former spouse or common-law partner or other non accompanying family members who were not examined at the time of the
sponsor’s application for permanent Residence

Appeal rights:

Finally, one must keep in mind that regardless of the ground of ineligibility, a sponsor has an automatic right to appeal a refusal to the Immigration Appeal Board if the application is processed outside of Canada. Sponsors of applicants seeking to remain in Canada do not have a right of appeal to the IAD if they are applying under the Spouse or common-law partner in Canada class or under the in-Canada humanitarian and compassionate category. In some cases, applicants may physically remain in Canada but file outside to retain appeal rights.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario.

The above article is general advice only and is not intended to act as a legal document.

Send questions to Attorney Moyal by email canada@moyal.com or toll free 1 888 8472 078

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