CASE STUDY: REMOVING A SPOUSE FROM A PR APPLICATION
QUESTION:
I have an inquiry from a prospective client regarding removing a spouse from their federal PR (PNP/paper-based) application.
The final divorce decree usually takes a long time. The client is firm in their decision to divorce their spouse and the spouse does not want to take the medical and PCC. In the interim, can the client submit the divorce petition and a statutory declaration that he/she wants to remove the spouse from the PR application?
The principal applicant also understands and agrees that he/she won’t be able to sponsor the spouse in any way in the future (i.e. family class, spousal, etc.).
Would this impact the applicant and prevent him or her getting the PR? Are these documents sufficient or the IRCC will only sanction the PR once the final divorce paper has been submitted?
Kindly guide with the process and supporting documents/declarations that need to be submitted in such a case.
ANSWER:
Although your question is specifically about a spousal situation, it engages more generally with the question of which family members are required to be examined in an application for permanent residence.
I believe strongly in always going back to first principles:
What does the Act say?
What do the Regulations say?
s.42(1) of IRPA states as follows:
42 (1) A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if
(a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or
(b) they are an accompanying family member of an inadmissible person.
Unpacking this provision, we can see that whether a family member is accompanying or not, in “prescribed circumstances,” they have to pass all the admissibility requirements, including medical and police clearances. The question then becomes: what are the prescribed circumstances under which a non-accompanying family member does or does not have to prove admissibility? For this level of detail, we must look at the Regulations.
s.23(b)(i) of the IRPR states, in part, as follows:
23 For the purposes of paragraph 42(1)(a) of the Act, the prescribed circumstances in which the foreign national is inadmissible on grounds of an inadmissible non-accompanying family member are that
[...]
(b) the non-accompanying family member is
(i) the spouse of the foreign national, except where the relationship between the spouse and foreign national has broken down in law or in fact,
This means that a family member who is a spouse (even if non-accompanying to Canada) must prove admissibility except where the relationship between the spouse and foreign national has broken down in law or in fact.
Breaking down “in law” means legal separation or divorce. From your scenario, it is obvious that there is no divorce yet, but it is unclear whether the parties are legally separated. If they are, I recommend stating this and providing the relevant documentation.
If the relationship cannot be said to be broken down in law, then you have to examine whether it has broken down in fact. In order for the provision to have any meaning, it must be read plainly to mean that the relationship has ceased to exist even though there is no legal separation or divorce to prove it.
I also need more information about the client’s situation to determine whether it has broken down. Some questions I may ask include the following:
Have they separated from each other?
When did this happen?
What are the details of the relationship break-down?
Have they filed for divorce?
It is for you to determine whether the relationship meets the definition in s.23, and for this, you will have to exercise your professional judgment.
In exploring this, I would pay attention to the factors that IRCC itself uses to determine whether a marriage relationship is genuine in the context of a sponsorship.
For example, the hallmarks of a genuine spousal relationship would usually include:
shared shelter (e.g. sleeping arrangements)sexual and personal behaviour (e.g. fidelity, commitment, feelings towards each other)services (e.g. conduct and habit with respect to the sharing of household chores)social activities (e.g. their attitude and conduct as a couple in the community and with their families)economic support (e.g. financial arrangements, ownership of property) children (e.g. attitude and conduct concerning children) societal perception of the two as a couple
If IRCC would refuse to accept a marriage as genuine for the purposes of a sponsorship without these kinds of hallmarks, it would be illogical for them to claim an existing marriage remains genuine for these purposes if those hallmarks are absent.
In conclusion, you will need to make submissions citing the above legislative provisions and corroborate your argument with documentation which proves the above. Certainly showing an application for divorce would be a strong piece of evidence, but an affidavit from the client explaining the circumstances would also be helpful. You could also consider including letters from family members who are aware of the relationship breakdown, and any objective evidence (i.e. proof of moving out of the matrimonial home, proof of separating bank accounts, credit cards, insurance policies, etc.). In some situations, depending on the complexity of the case, it might even be a good idea to get a letter of opinion from a Canadian family lawyer as to whether the couple qualifies as de facto separated under the laws of the province of destination.
All of this really depends on the facts of your case.
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