Regulation 4 of the Canada Regulations Immigration and refugee protection RegulationsSOR/2002-207 indicate that a foreign national cannot be considered the spouse, common-law partner or conjugal partner of a person if the marriage, common-law relationship or conjugal partnership: (A) was entered into primarily for the purpose of acquiring any status or privilege under the Act or (b) is not authentic.
Statistics
From 2012 to 2017, approximately 4% of spousal sponsorship applications were refused because an officer determined that the applicant’s marriage was not genuine or was primarily motivated by an immigration benefit.
A hasty marriage
In Nadasapillai v Canada (Citizenship and Immigration)2015 CF 72Judge Diner ruled that the fact that a marriage was contracted after a short courtship is not determinative of the existence of a marriage. dishonest marriage. He stated:
The committee criticized the rush because of Ms. Raman’s difficult past relationship and marriage and the fact that Ms. Raman was 38 at the time, meaning she was old enough to be a single mother. There are two reasons why this conclusion is weak.
First, it’s easy to see why Ms. Raman was ready for the companionship she made clear she wanted: older couples can decide quickly to get married (although haste is certainly not the exclusive domain of a particular age). Older people are often ready to commit to a lifelong commitment more quickly because they know what they want. As Ms. Raman said in her testimony: “I’m getting old. I am very old now and I don’t know how long I can live. …I found him a good person. So I took two or three days… to think about it and then decide.
Second, if the reason for finding the rush was rooted in a certain culture, that would be unfair. In the context of the Refugee Protection Division, the Court concluded that when the Board (RPD) draws plausible conclusions on evidence without considering the appropriate cultural and socio-political context, this may constitute grounds for reversal of a decision. The Council must exercise caution before imposing Western or Canadian paradigms on a non-Western culture and I recognize that both Baths And Bhatia these were asylum requests and not sponsorship calls.
My conclusion regarding the Panel’s “hasty” finding is that it was speculative at best, or otherwise made without regard to non-Western values.
A marriage that does not correspond to cultural norms
In Gill v. Canada2010 CF 122 (“Gill”) Judge Barnes said just because a marriage does not “fit” cultural norms does not mean it is dishonest. He wrote:
…the Commission’s observation that their respective ages and Ms. Gill’s status as a divorcee did not conform to prevailing cultural norms in India. …doesn’t mean that marriages that fall slightly outside the range don’t happen. The same can be said of the Indian cultural view of divorce. Presumably, marriages between previously single people and divorced people take place in India…
In Padda v. Canada, 2018 CF 708Justice Boswell also noted that it is unreasonable to apply cultural norms when the couple has been residing outside their home country for some time.
Birth of a child
Gil This also means that the birth of a child creates an evidentiary presumption that the marriage is valid. The Court stated:
The Commission was right to recognize that, in assessing the legitimacy of a marriage, great importance must be given to the birth of a child. Where there is no doubt about paternity, it would not be unreasonable to apply an evidentiary presumption in favor of the authenticity of such a marriage. There are many reasons to place great importance on such an event, not the least of which is that the parties to a fraudulent marriage are unlikely to risk the responsibilities of raising a child their entire life. This concern is even greater in a situation like this, where the parents are people of very modest means.
In its assessment of this marriage, the Commission noted that “strong countervailing evidence” would be required to rule out the importance of the child’s birth. The problem with this decision is that the Commission’s assessment of this “strong contrary evidence” focused largely on insignificant, inconclusive, or irrelevant issues and ignored considerable evidence that contradicted its conclusion.
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The appellant and the plaintiff have a child together and I have spent considerable time reviewing this evidence. I am well aware that the consequences can be devastating if a couple’s appeal is rejected even though they have brought children into the relationship. Although credible evidence of the existence of a relationship between the child and the child is generally an indicator of a genuine relationship, it is not determinative of the authenticity of the relationship. In this case, the birth of a child does not outweigh the many concerns related to the evidence presented.
In Mutneja v Canada (Citizenship and Immigration)2019 CF 1624 the Federal Court further stated:
Although the birth of a child is not conclusive proof of the authenticity of a relationship, the IAD was forced to weigh the fact that the Applicant and Ms. Mutneja have a child together and give considerable weight to this factor. And yet, the Decision does not disclose any analysis of this factor. The IAD states bluntly that “the birth of a child does not outweigh the many concerns related to the evidence presented.” The inability to explain why this important factor was outweighed by negative factors leads to the conclusion that this factor was not properly taken into account.
This principle was respected in Amin v. Canada (Citizenship and Immigration)2021 CF 670.
Later events
Many Federal Court decisions state that post-marriage events can be indicative of the primary purpose of the marriage. In Sami v. Canada (Citizenship and Immigration)2012 FC 539, for example, the Federal Court stated that “there is considerable case law which supports the notion that evidence of a subsequent engagement can constitute proof that a marriage was genuine at the time of its conclusion.”
Speed
In Dwarka v. Canada (Citizenship and Immigration)2024 CF 238Justice Manson ruled that while the speed or haste of a marriage may be a negative factor in assessing authenticity and primary purpose, it is not determinative.
Unilateral marriages
In Dalumay v. Canada2012 CF 1179 the Federal Court stated the following:
In this case, the Immigration Appeal Division did not explicitly challenge the evidence of the authenticity of the marriage, but concluded that for both spouses (although to a greater extent for the husband of the plaintiff), the marriage was contracted primarily for the purpose of acquiring a status or privilege under the Act. In other words, the IAD considered the marriage (or relationship) to be one-sided. The applicant took out an insurance policy in which she named her husband as the beneficiary, she visited her husband several times in Mexico and paid all his expenses, she paid for a trip with her husband and son, she sends him money monthly, she pays his bills, etc.
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The Applicant contends that the evidence supporting the IAD’s negative conclusion did not meet the required test of balance of probabilities. Although credible evidence of the authenticity of her marriage (demonstrating the positive characteristics of a couple, as the Applicant states) was not fully considered in the assessment, the IAD’s decision was based on Plaintiff’s husband’s failure to provide sufficient evidence that he entered into this relationship with the intention of starting, raising, and supporting a family with Plaintiff.
The passages above are all useful reminders of what agents look for when processing sponsorship applications. Consequently, persons preparing such requests must ensure that they demonstrate that:
- the couple is committed to each other emotionally, financially and physically (although in practice few details are provided on the latter);
- the couple is exclusive;
- the relationship evolved naturally, that is: immigration was neither a concern nor a problem;
- that both individuals in the relationship feel the same way; And
- that the relationship is known to others.