Sponsoring Spouse into Canada

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.