Spouse sponsored into Canada
will be granted a conditional landing in Canada for two years. Provided the
couple remains living together in a conjugal relationship as spouses for two
years after the initial grant of permanent
residency, the conditional landing becomes permanent. In assessing whether
or not the newly arrived spouse is living in a conjugal relationship for the
two years, immigration officers may conduct spot checks of the living
arrangements of the couple. In these spots checks, called "random
assessments" in the new regulations, they will consider a number of
factors, including their sexual behavior, sleeping arrangements, dinner habits,
financial circumstances and attitude towards children.
These considerations and other very personal
queries are aimed at determining whether or not a "conjugal partner"
exits and whether it exists under the same roof. The onus to demonstrate
compliance with these intrusive issues is on the non-citizen spouse. This means
that the person under review may have to provide information on his or her sex
life, and other issues, to satisfy an immigration officer that the sponsor and
spouse are genuinely living together as a couple.
If an immigration officer decides she is not
satisfied that the conditions are met, she would then render a determination
that the non-citizen is not a permanent resident, and presumably write them not
being in compliance with the law and issue an exclusion order, compelling them
to leave Canada without being able to return for a period of year.
As a safety measure against forcing persons in
abusive relationships from remaining in unhealthy situations, the two year rule
is subject to exceptions for those who are being subjected to physical, sexual,
psychological or financial abuse and/or neglect. Neglect is defined in the
regulations as the failure to provide the necessaries of life, such as food,
clothing, medical care or shelter, and any other omission that result in a risk
of serious harm. This is an important protection to ensure that a person is not
trapped inside a potentially dangerous situation, believing them unable to
escape without losing permanent residency in Canada. A similar policy of
protection has been recognized in Canada' humanitarian and compassionate
grounds program and guidelines.
However, the law is flawed in a number of ways.
Primarily, there is no recognition or exception made for persons who find
themselves in relationships which though not abusive, are intolerable for any
number of personal reasons including non-compatibility and/ or infidelity.
Under the conditional permanent residency, a spouse who has discovered their
partner's infidelity or who simply cannot get along with their partner is
compelled to remain in the relationship for 2 full years, without any means of
extraction, without losing permanent residency. This would even include a
spouse who has conceived a child in the two year period and who has clearly
entered into the relationship in good faith, believing when he or she applied
for permanent residency in Canada that they were entering into a conjugal
relationship of permanence.
The new enactment allows no discretion for an
officer to factor in basic human frailties or errors in judgment into an
assessment of who does and does not deserve to retain permanent residency. For
a non-citizen spouse in Canada on condition who has a child within the two
years, but who then is left by their sponsoring partner for compatibility
issues, this means being forced to leave Canada and possibly taking their child
with them. In addition to the loss of support from the sponsoring spouse, the
separation of the child from one of his or her parents would also result.
Depending on the distance of the spouse's home country from Canada, this
conceivably has very serious consequences on the development of that child.
The new law is simply too harsh, not flexible
enough and too intrusive. It will create animosity amongst those new immigrant
spouses subjected to embarrassing and intrusive questioning and may compel
others, who genuinely and in good faith came to Canada as a spouse, to leave
without having engaged in any wrongful behavior. The law has potential for
being cruel and intolerant. It must be repealed to allow for more flexibility.
