Divorce and Immigration Status in Ontario: What You Need to Know

June 12, 2024

Understanding Immigration Status in Canada

Types of Immigration Status

Here are the primary types of immigration statuses:

Permanent Residents: As a permanent resident, you have the right to live, work, and study anywhere in Canada. You receive most social benefits that Canadian citizens receive, including healthcare coverage. Permanent residents are protected under Canadian law and the Canadian Charter of Rights and Freedoms. However, they cannot vote or run for political office and are subject to residency obligations to maintain their status.
Temporary Residents: This category includes three main types:

Visitors: Individuals who are in Canada for a short period, usually up to six months, for tourism, family visits, or business. Visitors cannot work or study and have limited access to social benefits.
Students: Those granted permission to study at designated learning institutions in Canada. While they can work under certain conditions, their primary purpose in the country must be education. They also have limited access to social benefits.
Workers: Individuals with a work permit allowing them to be employed in Canada. Their status is closely tied to their employment, and losing a job could affect their ability to remain in the country. Work permits may be open, allowing work for any employer, or closed, restricting employment to the employer who sponsored the permit.
Refugees: Recognized refugees and those under protected person status have the right to remain in Canada for their safety. They can apply for permanent residency and, eventually, citizenship. Refugees have access to certain social benefits and protection under Canadian laws.

Legal Protections

Protection Under the Charter: The Canadian Charter of Rights and Freedoms guarantees fundamental rights and freedoms to everyone in Canada, including the right to life, liberty, and security of the person.
Access to Legal System: Immigrants, regardless of status, have the right to access the legal system, which includes the right to a fair trial, the right to representation, and the right to appeal decisions.
Anti-Discrimination Laws: Federal and provincial laws protect against discrimination based on race, religion, nationality, and other grounds.
Support Services: Various governmental and non-governmental organizations provide support services to immigrants.

Impact of Divorce on Different Immigration Statuses

Permanent Residents

For permanent residents, divorce generally does not affect their status directly. Once granted permanent residency, individuals have the right to live, work, and study anywhere in Canada regardless of their marital status. However, complications can arise if the permanent residency was contingent upon the relationship. For instance, if the residency was granted on the basis that the individual was sponsored by their spouse, authorities may investigate to ensure the relationship was genuine and not primarily for the purpose of gaining immigration status. If it is found that the marriage was entered into primarily for immigration purposes, there could be a risk of losing permanent residency status.

Conditional Permanent Residency

Canada previously had a condition under which some spouses were granted permanent residency with the requirement that they live with their sponsoring spouse for two years to maintain their status. Although this condition was removed in April 2017, it is essential for those who were subject to this condition to understand its implications. If the marriage dissolves before the condition is met, the sponsored spouse could potentially lose their residency unless they can prove that they entered the marriage in good faith.

Temporary Residents (Work or Study Permit Holders)

For temporary residents, such as those on work or study permits, the impact of a divorce can vary significantly depending on whether the Canadian spouse is a sponsor.

Work Permit Holders: If a work permit is tied to a spouse’s sponsorship, divorce could affect the permit holder’s status. For instance, if the work permit was issued under the spousal category, which allows the spouse of a skilled worker or student to work in Canada, the permit might be revoked or not renewed if the couple divorces. The individual would then need to apply for a different permit or leave the country unless they secure another form of legal status.
Study Permit Holders: Similar to work permits, the status of a study permit might also be influenced by marital status, especially if the permit was facilitated through the sponsorship of a Canadian spouse. However, most study permits are granted independently of marital status, so the primary concern would be the potential loss of financial support from the spouse, which must be addressed in maintaining the permit’s requirements.

Divorce Proceedings and Immigration Applications

Ongoing Immigration Applications

When a couple is in the midst of applying for permanent residence and a divorce occurs, the application can be severely impacted. Here’s how:

Spousal Sponsorship Applications: If the application for permanent residence is based on spousal sponsorship, the process can be halted if the couple divorces before the application is approved. The Canadian government needs to see proof of a genuine and continuing relationship for the application to be processed successfully. If a divorce is filed or finalized during this time, the sponsored person’s application will likely be rejected.
Family Sponsorship Applications: For family sponsorships, where other family members are included in the application (e.g., children), a divorce can complicate the process. The primary applicant (the spouse) must inform immigration authorities about the change in marital status, which could lead to delays or re-evaluation of the application based on the new family dynamics.
Other Permanent Residence Applications: If the application for permanent residence is based on other grounds (e.g., economic immigration programs) but includes a spouse as a dependent, the principal applicant must notify the immigration authorities about the divorce. This could result in the dependent spouse being removed from the application, potentially affecting the overall points calculation and eligibility, depending on the specific immigration program.

Sponsorship Breakdown

When a sponsorship breaks down due to divorce, several legal obligations and options need to be considered:

Sponsorship Agreement and Undertaking: A sponsor commits to financially supporting the sponsored spouse for a specified period (usually three years). This obligation remains even if the couple divorces before this period ends. The sponsor must continue to fulfill these financial obligations unless the sponsored spouse becomes a Canadian citizen or leaves Canada permanently.
Options for the Sponsored Spouse:

Apply for a Different Status: The sponsored spouse may apply for a different type of status or visa if eligible, such as a work permit or study permit, to remain in Canada independently of their ex-spouse.
Humanitarian and Compassionate Grounds: In some cases, the sponsored spouse may apply for permanent residence on humanitarian and compassionate grounds, especially if returning to their home country would cause significant hardship.
Legal Recourse for Sponsored Spouse: If the sponsored spouse faces abuse or neglect from the sponsor, they can seek protection and legal recourse through Canadian laws designed to protect immigrants from such situations. They can contact organizations that provide support and legal advice for individuals in abusive relationships.
Impact on Sponsor: The sponsor must inform immigration authorities of the change in marital status. Failure to do so can result in legal consequences, including being barred from future sponsorships.

Legal Rights and Obligations

Rights in Divorce

Property Division: In Ontario, the division of property follows the principle of equalization, where the net family property accumulated during the marriage is divided equally between the spouses. This rule applies regardless of immigration status. Each spouse is entitled to half of the increase in the value of property acquired during the marriage. Exemptions include property acquired before marriage, inheritances, and gifts, provided they are kept separate.
Spousal Support: Spousal support, or alimony, is designed to provide financial assistance to a spouse who may be disadvantaged financially by the divorce. The right to spousal support depends on various factors, including the length of the marriage, the roles each spouse played during the marriage, and each spouse’s financial circumstances post-divorce. Immigration status does not affect the eligibility for spousal support.
Child Support: Child support is a legal obligation irrespective of the parents’ immigration status. The amount of child support is determined based on the Federal Child Support Guidelines, which consider the income of the paying parent and the number of children requiring support. Both parents are responsible for supporting their children financially.

Obligations of Sponsors

Financial Responsibilities of a Sponsor: When a sponsor agrees to sponsor their spouse, they sign an undertaking to provide financial support for a specific period (usually three years) from the date the sponsored spouse becomes a permanent resident. This obligation persists even after a divorce. The sponsor must ensure the sponsored spouse does not require social assistance. If the sponsored spouse receives social assistance during this period, the sponsor will be required to repay those amounts to the government.
Spousal Support: In addition to the sponsorship undertaking, a sponsor may also be required to pay spousal support as determined by the divorce proceedings. This obligation is separate from the sponsorship agreement and is enforced by family law courts. The determination of spousal support considers factors such as the duration of the marriage, the financial needs and means of both spouses, and the roles and contributions of each spouse during the marriage.
Child Support: A sponsor who is a parent must fulfill their child support obligations. This responsibility is independent of the sponsorship agreement and continues until the child reaches the age of majority or as dictated by a court order or agreement. Child support payments are calculated based on the paying parent’s income and are intended to cover the child’s living expenses, education, and healthcare needs.

Divorce and Impact on Children with Mixed Immigration Status

Custody and Access

Custody and access decisions are made with the best interests of the child as the primary consideration. When determining custody arrangements, courts in Ontario consider various factors, including:

Best Interests of the Child: The court will evaluate what arrangement will best serve the child’s physical, emotional, and psychological needs. Factors include the child’s age, health, emotional ties to each parent, and the ability of each parent to care for the child.
Child’s Immigration Status: While the primary focus is on the child’s best interests, the child’s immigration status can also play a role in custody decisions. For instance, if a child has permanent resident status or citizenship in Canada, the court will consider how custody arrangements might affect their ability to stay in the country and access benefits and services.
Parental Immigration Status: The immigration status of each parent can influence custody decisions, particularly if one parent risks deportation or losing their right to remain in Canada. The court aims to provide stability and continuity for the child, which might mean granting custody to the parent with a more secure immigration status.
Access Rights: Access or visitation rights ensure that the non-custodial parent maintains a relationship with the child. Immigration status might impact the practicality and frequency of these visits, especially if one parent faces travel restrictions or potential removal from Canada.

Child’s Status

Dependent Status: In many cases, a child’s immigration status is tied to that of one or both parents. If a child is a dependent on a parent’s permanent or temporary resident status, changes in the parent’s status due to divorce can affect the child. For example, if a parent loses their temporary resident status, the child’s status might also be jeopardized.
Permanent Residents and Citizens: If the child is a permanent resident or citizen of Canada, they have the right to remain in the country regardless of the parents’ marital status. However, the parent’s ability to stay in Canada can impact the child’s living arrangements and stability.
Applications in Progress: For families with ongoing immigration applications, the divorce can complicate the process. If a child’s permanent residence application is tied to a parent’s spousal sponsorship, the divorce might lead to the application being reassessed or halted. In such cases, it’s crucial to seek legal advice from a divorce lawyer to explore alternative pathways to secure the child’s status.
Parental Sponsorship: If the child was sponsored by one parent, the sponsor’s obligations continue despite the divorce. This includes ensuring the child’s financial support and well-being, as the sponsorship agreement remains in effect for the specified period.