In an attempt to prevent marriage fraud, recent changes to section 4 of the Immigration and Refugee Protection Regulations have made it more challenging to establish a bona fides marriage for immigration purposes, by expanding the circumstances in which a person is NOT considered to be a spouse for immigration purposes. Immigration officials now have a much easier time proving a “bad faith” relationship. Instead of having to prove that a romantic relationship is 1) NOT genuine and 2) that it was entered into primarily for the purpose of acquiring status or privilege under the Immigration and Refugee Protection Act., under the new test, either of these findings can defeat the Applicant’s claim for immigration status in Canada. This is a significant shift in the burn of proof, which is inconsistent with the family law legislation and jurisprudence governing marriage in Canada.
Canadian jurisprudence does not recognize immigration fraud as a ground for annulment of marriage. As Toronto family lawyers can attest, 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.