Canadian jurisprudence does not recognize immigration fraud as a ground for annulment of marriage. Courts will generally refuse to grant annulments in situations where one spouse was tricked into marrying a non-Canadian. In a seminal case of Iantsis (Papatheodorou) v. Papatheodorou; 1970 CarswellOnt 154, 3 R.F.L. 158, the Court of Appeal for Ontario refused to interpret liberally the circumstances in which fraud may undermine the validity of a marriage. In this case, the judges found that fraudulent misrepresentation will generally not invalidate a marriage, unless it can be proven that the defrauding party’s actions led to a mistake regarding the nature of the ceremony, or the deception as to the identity of one of the parties. Without examining the wisdom or correctness of the Court’s reasoning in Iantsis, this decision and the jurisprudence that followed are in line with a long standing philosophy in Canadian family law, which recognizes that parties marry for a great many reasons, one of which could be to obtain immigration status. While the family law courts recognize the validity of even fraudulent immigration marriages, the immigration regulations disallow even those marriages where the parties are in otherwise genuine relationship, as long as the marriage was primarily entered into to obtain immigration status.

The confusion that results from differing operations of family and immigration laws and regulations needs to be removed, in the interest of consistency and fair administration of justice. There are two obvious solutions to this legal dissonance. The first approach is restrictive and it involves keeping the current, onerous legal test for immigration purposes, and synchronizing family law legislation with it. Under this scenario, it would be more difficult to prove a good faith marriage for immigration purposes, but it would be easier to get an annulment of a fraudulent marriage. The second approach would involve reverting to the old, more relaxed legal test for immigration purposes, and also relaxing the family law requirements for annulment of fraudulent marriages. Namely, it would be easier to establish a good faith relationship for immigration purposes, and easier to dissolve a potentially fraudulent marriage.

In situations where one spouse is duped into a fraudulent immigration marriage, I favour the first scenario. Stricter immigration test is appropriate, as long as there is a clear recognition that in genuine bi-national relationships, one (if not the primary) of the reasons for marriage is to bring the other partner to Canada through the grant of permanent resident status. The stricter test will likely discourage some instances of marriage fraud, and the more relaxed annulment rules would function to relieve innocent parties from obligations of support and property division that may be a significant by-product of marriage fraud. Furthermore, the Government of Canada should put into place policies that relieve defrauded spouses from their Sponsorship obligations, and it should devise a transparent and efficient system for adjudication of sponsorship grievances in order to discourage individuals from preying on others’ vulnerabilities to obtain Canadian citizenship.

Immigration lawyer Toronto – Ivan Steele Law Office  www.ivansteelelaw.com

There is only one ground for getting a Divorce in Canada – the breakdown of the marriage. How you go about proving that breakdown is a different story. There are three reasons recognized by common law and the Divorce Act that can be used as evidence of marriage breakdown (and no, we do not just use that vague “irreconcilable differences: phrase):

1) The spouses have separated and have lived separate and apart for at least one year. The separation is usually physical but under some circumstances (economic or financial hardship are most notable), the parties can still live under the same roof and claim to be separated. The evidence of a true separation needs to be presented to the judge in accordance with applicable case law. As long as the “marriage-like” quality of their relationship has ended and the parties have stopped sleeping together, doing chores for each other, going to family events together and so on, separation will likely be established.
In this situation, getting a lawyer is probably a wise move.

2) One or both spouses have committed adultery which the other spouse hasn’t forgiven. In this case, you do not need to name the person with whom a spouse has committed adultery, but if you chose to do so, you will need to serve that person as well, which is only additional and often unnecessary headache.

3) One spouse has been mentally or physically abusive to the other spouse, and that spouse can no longer continue  to live in a matrimonial union. The definition of abuse is wide, but it should not be watered down to the point of irrelevance. Also, do not throw around the accusations of abuse if none exist. There are serious matters that should not be taken lightly. You may also get into trouble if you lie to the Court.

The bottom line is that most people ask for a divorce based on separation. To claim a divorce based on adultery or cruelty, you must be able to prove that the adultery or cruelty occurred, and that can be difficult.

Temporary Reconciliation is OK: Spouses who have separated can get back together and move back in to try to reconcile and make the marriage work. But within the one-year separation period, they can only live together for a total of 90 days or less. If they live together for more than 90 days, the one-year period of separation starts all over again from the date of the last separation.
Judges will not grant a divorce when there is

• collusion
• connivance
• condonation
• insufficient arrangements for child support – before granting a divorce, the judge must be satisfied that appropriate arrangements have been made for the financial support of the children. This is why I recommend that the parties enter into a Separation Agreement before proceeding with the Divorce.

Collusion is when you work with your spouse to lie to the court, either in an affidavit or through your testimony. For example, if a couple agrees that they will lie about the date of separation to speed up the divorce.

Connivance is when one spouse encourages the other spouse to commit adultery or tricks the other spouse into committing adultery to speed up the divorce.

Condonation is when you have forgiven your spouse for his or her adultery or cruelty.

Toronto Family and Wills Lawyer

A durable power of attorney for property — or financial power of attorney — is a simple, inexpensive, and reliable way to arrange for someone to manage your finances if you become incapacitated (unable to make decisions for yourself). A Continuing Power of Attorney is a legal document in which a person gives someone else the legal authority to make decisions about their finances if they become unable to make those decisions themselves. The person who is named as the attorney does not have to be a lawyer. The power of attorney is called “continuing” because it can be used after the person who gave it is no longer mentally capable. Some people use the word “durable” which means the same as “continuing”.Power of Attorney for property is an important document to make, but it is even  more important to your family. A power of attorney for property  can be drafted so that it goes into effect as soon as you sign it. It is important to specify  that you want the power of attorney to be durable or continuing. Power of attorney generally gives the designated person broad authorization to handle all of your finances. But you can give your attorney as much or as little power as you wish. Think carefully before you limit the scope of your attorney’s authority. If you become incapable of making financial decisions and your attorney does not have full authority, it may be necessary for your attorney, a family member, friend or the Public Guardian and Trustee to be appointed as your guardian in order to manage the balance of your property. In that case, a management plan must be filed and security may be required. You may want to give your agent authority to do some or all of the following:

• use your assets to pay your everyday expenses and those of your family
• buy, sell, maintain, pay taxes on, and mortgage real estate and other property
• collect Social Insurance or other government benefits
• invest your money in stocks, bonds, and mutual funds
• handle transactions with banks and other financial institutions
• buy and sell insurance policies and annuities for you
• file and pay your taxes
• operate your small business
• claim property you inherit or are otherwise entitled to
• transfer property to a trust you’ve already created
• hire someone to represent you in court, and
• manage your retirement accounts.

Your continuing power of attorney for property automatically ends at your death, when your will kicks in. That means that you cannot give someone authority to handle things after your death, such as paying your debts, making funeral or burial arrangements, or transferring your property to the people who inherit it. If you want your agent to have authority to wind up your affairs after your death, use a will to name that person as your executor.

You can choose anyone you want as your attorney as long as he or she is 18 years of age or more. Many trust companies are prepared to act as attorney and charge a fee for this service. Some individuals choose this option because they want an attorney who is professional and impartial. It is important to know that by making this power of attorney, you revoke (cancel) any other continuing power of attorney for property that you have made before. If you have made such a power of attorney before and you don’t want to revoke it, you should consult with a lawyer so that he or she will make the necessary changes to this form. If you want more than one person involved in your financial decisions, you can name more than one person to be your attorney for property. But you are not required to do so. On the other hand, you may decide not to name more than one attorney if you’re concerned about the possibility of disagreements or if you believe it may be difficult for others to deal with more than one person concerning your finances.

Your continuing power of attorney will end in several circumstances, most common of which are:

• You revoke it. As long as you are mentally competent, you can revoke a durable power of attorney at any time.
• A court invalidates your document. It’s rare, but a court may declare your document invalid if it concludes that you were not mentally competent when you signed it, or that you were the victim of fraud or undue influence.
• No attorney is available.To avoid this problem, you can name an alternate attorney for property in your document [contact-form]

(1) A completed marriage license application signed by both you and your intended spouse.
(2) The original divorce or a copy of the divorce certified by the administrative officer of the court in the granting jurisdiction, or sealed or otherwise properly authenticated by the court. When the divorce is in a language other than English or French – a certified translation, is also required.
(3) A copy of a legal opinion of an Ontario solicitor, such as myself, addressed to both of you, stating that the divorce would be recognized as valid in the Province of Ontario and providing the legal reasons for recognition, which must include reference to the relevant facts and the specific legislative basis for recognition.
(4) Statement of Sole Responsibility, which states that the validity of a foreign divorce remains the responsibility of the license applicant, and that the Ontario government assumes no responsibility if the foreign divorce turns out to be invalid.

In the foreign divorce opinion letter a lawyer will analyze the person’s unique circumstances and apply not only current legislation, but also case law. A divorce from another country is likely valid in Canada if either: (1) when you obtained your divorce you had a “real and substantial” connection to the place where you obtained the divorce; or (2) when you obtained your divorce, either you or your spouse had been ordinarily resident in the place that granted the divorce for a year beforehand. Generally speaking, if you normally lived in the place where you divorced, the chances are good that your divorce will be recognized in Canada. On the other hand, if you obtained an “express divorce” in a place that does not have residency requirements or you otherwise had nothing to do with that place, the chances are that your divorce will NOT be recognized in Canada. As an illustration, if you came to Canada from Pakistan and you live in Canada permanently, but you obtained a divorce in your original country, your divorce will likely NOT be recognized in Canada and Ontario. Divorces obtained by fraud or through coercion are also not recognized.

Foreign Divorce Opinion Letters must include a careful consideration of statutory provisions contained in the Divorce Act, but they must also take into account the pre-existing case law. This means that the ground for recognition of foreign divorces in Canada are fairly wide.

The starting point, and the most relevant legislative reference is section 22 of the Divorce Act, which provides:

(1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.

(2) A divorce granted, after July 1, 1968, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so, on the basis of the domicile of the wife in that country or subdivision determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for all purposes of determining the marital status in Canada of any person.

(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.

A thorough legal analysis does not not stop here. A solicitor who is drafting a foreign divorce opinion letter ought to keep in mind the operation of subsection 22(3) which states that  statutory provisions do not limit or restrict any existing rule of law applicable to the recognition of foreign divorces. This means that n overly narrow and technical approach to drafting foreign divorce opinion letter may be deficient.  Often, a determination of “real and substantial connection” with a jurisdiction is highly fact specific and could lead to a recognition of a divorce under  subsection 22(3), even when the divorce would otherwise not be recognizable under subsection 22(1).

Process:

To get started, you would need to scan and email, fax or mail the following five items to our office (www.ivansteelelaw.com):

• An original or court-certified copy of the divorce certificate or decree and a certified English translation of the same,
• A completed statement of sole responsibility for your divorce that needs to be signed by both parties of the marriage (I have attached this form to the email)
• A written statement from the divorced party or parties, confirming that at least one party to the divorce resided in the divorce granting jurisdiction for at least one year preceding immediately the application for divorce.

Lastly, I would need copies of both of your IDs and a signed retainer. Once you have my Foreign Divorce Opinion Letter, you need to mail the entire package to the Office of the Registrar General. If you are getting married in a City Hall, you need to contact that particular place directly for availability. Clearly, if you and your spouse were both divorced outside of Ontario, you will need two separate foreign divorce opinion letters. Please note that not all Foreign Divorce Opinion Letters are created equal. The quality of legal analysis will differ from one lawyer to another, so choose wisely.

The first step in the application for spousal support is convincing the court that you qualify to receive support because you either need it or because your role during your marriage has put you at a financial disadvantage that needs to be redressed.

To even apply for spousal support, you have to make sure that you qualify under the definition of “spouse.” At present, spouses are defined for purposes of support obligations as either:

1. married couples; or
2. any two people, who although not married to one another, have been living with each other in a marriage-like relationship continuously, and for a period of not fewer than three years (or in a relationship of some permanence, if they are the natural or adoptive parents of a child).

Assuming that you can establish that you are a spouse, the next critical issue is whether you are entitled to support. In determining entitlement, courts will need to make sure that your situation reflects the legislative objectives of spousal support provision. Namely,
1. A recognition of the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
2. Equitable sharing of the economic burden of child support;
3. The making of fair provisions to assist the spouse or same-sex partner in becoming economically self-sufficient; and
4. Commitment to relieving financial hardship, if this has not been done by orders related to property and the matrimonial home.

Considering that divorce in Canada is no fault, it should come as no surprise that in making an order as to spousal support, a court is not entitled to take into consideration any misconduct (such as adultery for example) of a spouse in relation to the relationship, unless there is a course of conduct that is unconscionable, which is a very high treshold.

In making an order for spousal support, s. 15(2)(4) of the Divorce Act (or an equivalent in the Family Law Act) entitles a court to take into consideration the condition, means, needs and other circumstances of each spouse or same-sex partner and of any child of the marriage for whom support is sought, by reference to factors including:

(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.

Amount of Spousal Support

If you have managed to establish that you are a spouse and that you are entitled to spousal support, a court will need to determine how much you should get. This is called the quantum of spousal support. This issue is probably the most contentious, and the list of factors that will determine how low or how high support payments should go is long and non-exhaustive. After considering each party’s income and budgets, a judge will need to decide how much will be needed for the recipient party to maintain the standard of living to which he or she was accustomed while the relationship was intact. Note however, that because child support is payable as priority to spousal support, however, the payor spouse may not be in a financial position to pay spousal support as well as child support.

Method of Payment and Duration

The final issues, and the ones I wish to comment on a little bit more today is the method of payment and the duration of spousal support. Spousal support is, generally, presumed to be payable on a monthly basis, but under come circumstances, a lump sum amount can be awarded. There are advantages to paying spousal support on a lump sum basis. For example, lump sum payment provides some degree of finality as the obligation of spousal support is satisfied. A spousal support release, signed upon the payment of a lump sum award, provides a clean break, but spousal support obligations may not be immutable, depending upon the circumstances, and subject to ever-changing caselaw. Another advantage of a lump sum payment is that, as opposed to a monthly payment, it is not taxable in the hands of the recipient spouse (nor is it deductible to the payor spouse). Lastly, by receiving a lump sum, the recipient spouse reduces the risk of defaults in payment obligations. Monthly payments, in contrast, are generally more financially affordable to the payors.

The amount and duration of both, periodic and lump sum spousal support awards is subject to variations if material change in circumstances comes to light.

The parties in this hotly contested separation married in 1992 and had two children before separating in 2005. The trial judge ruled on the issues of spousal support, child support and property division, among others. My commentary will only focus on what I perceive to be the most controversial aspect of this case – namely, the order of lump sum spousal support.

It is settled that a trial judge has wide, if not unfettered, discretion when ordering the method of spousal support payments as per s.15.2 (1) of the Divorce Act, which says: “A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.” The key question on appeal was whether the trial judge’s award of lump sum spousal support was justified under the circumstances. Here are some key facts, as they related to the award of lump sum spousal support:

The husband is a piece of work. He lied to his wife, cheated and tried to hide his finances – not a very sympathetic fellow by any standard. He also filed to honour “fully” two previous court orders for support and despite being financially able to pay, he unilaterally reduced the quantum of spousal support payments to levels that he considered appropriate, forcing the wife to ask for the help of the Family Responsibility Office. The trial judge read these facts as indicators that the husband put his own financial interest ahead of those of his wife and the children. In addition, the husband did not provide full disclosure of income and assets in a timely manner. The trial judge further suggested that the husband would in future resent paying spousal support due to his estrangement from children. Lastly, the Court considered that the husband’s job loss created added uncertainty about his future compliance with periodic spousal support award.
In ordering a award lump sum spousal support, the trial judge considered legal principles governing such awards, and asked for submissions from parties on the issue of lump sum spousal support award once husband’s employment status was revealed.

The Court of Appeal did not find any fault wither either the judge’s reasoning or procedure that he followed, and consequently upheld the lump sum award. On appeal, the husband claimed that the trial judge’s award of lump sum spousal support “was not made to address the economic disadvantages arising from the marriage but, rather, as an impermissible means of redistributing the parties’ family assets under the guise of support.” Court of Appeal rejected this argument on the facts of the case.

As both levels of court freely recognize, this was a highly contested trial between two emotionally volatile litigants. I find no fault with the Court of Appeal decision in upholding the award of lump sum spousal support. The lower court’s analysis of spousal support entitlement and the quantum are thorough and spot on. I would, however, like to discuss the issue of how much weight trial judges should place on litigants’ past failures to honor “fully” their spousal support obligations, before ordering onerous lump sum spousal support. The husband’s present, past and future resentment towards the payment of spousal support, and his occasional obstinance, standing alone, should not be significant factors militating in favour of lump sum award. Allow me to explain. Any uncertainty in the future payments of periodic spousal support would have been appropriately addressed through FRO’s continued intervention. Lump sum was not necessary to address this concern. I don’t know many people that enjoy paying spousal support. More than any other order in family law, spousal support orders tend to bring the worst in people, as they are almost always viewed as unfair and disproportionate by the payor. Maybe the terminology plays a part in this as well. After all, who would feel comfortable “supporting” their spouse, turned “enemy”, which is unfortunately how most family law litigants see each other.

Ontario courts ought to be more cognizant of these psychological dynamics, and see a payors’ spotty compliance and occasional withholding of spousal support in the context of a heated trial for what they are – instances of psychological venting, or “acting out.” In a vast number of case, these actions are not logical and premeditated choices designed to undermine the other party’s financial health. They are acts born out of frustration and hurt. None of this is intended as the criticism of Ontario courts in penalizing chronic “dead beat” parents and spouses, who have a well-established pattern of refusal to pay support. Courts are right to, and should continue to penalize malicious and irresponsible payors, but they should also be very careful in painting all payors with the history of resistance to support payments with the same brush. In the end, what killed the husband’s case in my opinion was his initial failure to provide full and frank disclosure of his income and assets. Absent this, his past lack of compliance and his temporary loss of work, should not have been enough to warrant a lump sum award.