Two questions tend to arrive at once when a sponsored marriage ends. The sponsor asks, “Am I still on the hook for this person?” The sponsored spouse asks, “Can I be sent home?” Both are usually asked in anger or fear, often on the basis of something a relative said. The answers are less dramatic than the rumours, but they do surprise people.
Generally speaking, the sponsor stays financially answerable to the government for the rest of the undertaking period, and the sponsored person’s permanent residence does not depend on staying in the relationship. Those two rules sit alongside Ontario family law, which has its own separate rules on support, property and children. Much of the confusion comes from treating the three as one.
This article gives general information and is not legal advice. Immigration rules and programs change, so confirm current requirements with Immigration, Refugees and Citizenship Canada (IRCC) before relying on anything here. The answers below assume the sponsored spouse has already become a permanent resident unless otherwise stated.
What you actually promised when you signed
When you sponsor a spouse or partner, you give an undertaking. Many sponsors remember signing it without thinking about it much, because at that moment the marriage was the whole point. The undertaking is a promise to provide for the basic needs of the sponsored person and their family members and to reimburse government for social assistance paid to them during the undertaking period.
Under section 132 of the Immigration and Refugee Protection Regulations, the period for a spouse, common-law partner or conjugal partner ends three years after the day they become a permanent resident. Dependent children have longer periods: for a dependent child under 22 at landing, it runs until the earlier of 10 years and the child turning 25.
Note the starting point. A couple who have been separated for ten months and were married for three years before landing are not credited with those earlier years. The clock runs from the date of permanent residence.
Separation does not end the undertaking
IRCC is direct on this. Its guidance says the undertaking continues even if your relationship with the people you sponsor changes, and its sponsorship guides list divorce, separation and relationship breakdown among the events that do not cancel it. There is also no way to cancel or shorten the period once the person has become a permanent resident.
This is often hard news. A sponsor may have been left, may have been lied to, or may have remarried. None of that changes the promise made to the government. If the former spouse goes on Ontario Works within the three-year window, the province can look to the sponsor for repayment of those amounts.
Consequences of default can be serious:
- Under the Immigration and Refugee Protection Act, the amount owed can be collected as a debt.
- Under IRCC rules, you cannot sponsor anyone else until you have repaid, or are complying with a repayment arrangement. So a sponsor hoping to sponsor a new partner or a parent later could find this blocks the application.
- A prior undertaking that has not run out can itself affect your eligibility to sponsor a new spouse or partner.
Before the sponsored spouse has landed, the position is different. A sponsor can ask to withdraw the sponsorship application, but only before the person becomes a permanent resident. If a withdrawal is processed after that, the sponsor remains responsible for the entire undertaking period. If you are separated and the application is still in progress, you need advice quickly, and you should not ignore the file. Both sponsor and applicant have a duty to be truthful with IRCC about the current state of the relationship.
Why a sponsored spouse’s status generally survives
Canada used to have a rule requiring some sponsored spouses to live with their sponsor for two years after landing, on pain of losing their status. That “conditional permanent residence” rule was removed. IRCC states it no longer applies to anyone. This means that a permanent resident who separates from their sponsor does not lose status for that reason alone.
Nor does a sponsor have the power to cancel someone’s status by calling IRCC or by writing a letter. Threats along the lines of “I’ll have you deported” are common in failing sponsored marriages, and they are often unfounded. That kind of threat can itself be relevant to a family violence claim in family court.
Permanent residence can still be lost for other reasons. These include failing to meet the residency obligation, serious criminality, and misrepresentation. People should not think of this as a blanket safety net:
- Under section 4 of the regulations, a person is not considered a spouse if the marriage was entered into primarily to acquire status or privilege under the immigration law, or is not genuine.
- Under section 40 of the Immigration and Refugee Protection Act, misrepresenting a material fact can make someone inadmissible.
A marriage that genuinely broke down after landing is not the same as a fraudulent marriage, and a short relationship is not by itself proof of fraud. Yet if a sponsor reports concerns to IRCC, the department can look into them. Sponsors should not make allegations they cannot support, particularly as a form of leverage in a family dispute. Sponsored spouses who get a letter from IRCC, the Canada Border Services Agency or anyone else about their relationship should speak to an immigration lawyer right away, before replying.
When the application has not been decided
Where the sponsored spouse is not yet a permanent resident, separation can be decisive. For applicants in the spouse or common-law partner in Canada class, section 124 of the regulations requires that the applicant be the spouse or partner of the sponsor and cohabit with that sponsor in Canada. A real separation puts that in doubt, and the application may fail.
People in that position should not conceal the separation. They may have other options depending on their circumstances, such as a different temporary status, or a humanitarian and compassionate application. These are highly fact-specific and time-sensitive, so get immigration advice early, and keep an eye on the expiry date of any temporary status.
If you are being abused
If a sponsored spouse is being abused, immigration fears should not keep them in danger. Permanent residents can leave an abusive sponsor without losing status because of the separation. Those who do not yet have permanent residence may also have options. IRCC publishes guidance for spouses and partners who are victims of abuse, including a fee-exempt temporary resident permit, in some circumstances, for those who need to leave an abusive relationship. The same guidance discusses extending or restoring temporary status.
In an emergency, call 911. Peel Regional Police serve Brampton, and your immigration status does not remove your right to protection. The courthouse’s Family Court Support Worker program, shelters and community organizations in Peel can help with safety planning, and interpretation may be available if English is difficult for you. Our earlier points about threats apply here as well: being told “you’ll lose your status if you leave” is frequently untrue, and it is a form of control you are entitled to get advice about.
Family law does not care who sponsored whom
Once you step into family court, the sponsorship does not create a separate set of rules. Whether the sponsored spouse can stay in Canada is an immigration question. Whether they get support, or a share of the property, or time with the children is a family law question, decided as it would be for any other couple.
A few points tend to catch people out:
Spousal support. Entitlement and amount are assessed under the Divorce Act (for married spouses seeking a divorce) or Ontario’s Family Law Act. Factors include the length of the relationship, each person’s roles, need and ability to pay. A short marriage may produce limited or no support, and a sponsored spouse with no Canadian work experience may have a stronger argument. The undertaking is a promise to the government. How a court treats it in a particular private support claim may vary, and it does not fix the amount of spousal support. Similarly, a waiver of support between the two of you will not relieve the sponsor of the undertaking to the government. A separation agreement cannot bind IRCC or the province.
Property. Married spouses in Ontario have a right to an equalization of net family property, whether the marriage was long or short. A newly arrived spouse who brought little into the marriage may be entitled to a share of the growth during the marriage. They should also know about the special treatment of the matrimonial home. Common-law partners have no equalization right under the Family Law Act, and instead must rely on ownership and trust claims. Short marriages can still produce a claim, although in limited circumstances a court may adjust an unequal result. Equally, property in the home country counts, and needs to be disclosed.
Parenting. A child’s best interests decide this, not anyone’s immigration status. Whether a parent might have to leave Canada, or might want to, can still be a factor in planning. Travel and relocation are especially sensitive where one parent has strong ties to another country, and a good parenting order will address passports and travel consent. Our custody and parenting page explains how these decisions are generally approached.
Sponsored children. If a sponsored child is part of the family, the longer undertaking for that child also continues after separation. A stepparent who sponsored a partner’s child may also have child support obligations in family law, depending on whether they showed a settled intention to treat the child as their own.
Practical moves for the sponsor
If you are the sponsor, these steps are worth considering early on:
- Find your date-of-landing records so you know exactly when the undertaking ends.
- Keep copies of all the sponsorship documents you signed.
- Do not assume that moving out, changing the locks or sending a letter to IRCC ends anything.
- If your former spouse may be receiving social assistance, you can get advice on whether a claim could come to you and what the repayment process looks like. Any letter from the province should be taken seriously.
- Include a clause dealing with the undertaking in your separation agreement, such as a promise by the former spouse to indemnify you if a claim arises. This cannot bind the government, and its value depends on the other person’s ability to pay, but it gives you a contractual claim to pursue.
- If you were yourself sponsored as a spouse, remember the five-year rule in section 130(3) of the regulations before planning a new sponsorship. You generally cannot sponsor a new spouse or partner until you have held permanent residence or citizenship for at least five years.
Practical moves for the sponsored spouse
If you are the sponsored spouse, these are the things to think about:
- Gather your confirmation of permanent residence, your PR card, your passport and any documents your spouse has been holding. Make copies and keep them outside the home.
- Do not let anybody tell you that you must leave Canada, or stay in the marriage, without getting your own advice.
- Think about income. Social assistance is available to people who qualify, and the undertaking does not stop you from applying, although there may be questions about your sponsor’s support. Ontario Works staff can explain how the rules apply in your case.
- Keep your PR residency obligation in mind if you are thinking of going home for a long stay.
- A citizenship application may raise questions about your physical presence and your history. Those issues are separate from your marriage, but get advice if your file has complications.
- Be cautious with what you say about the marriage in writing. Texts claiming that “I only married you for the papers,” even if sent in anger, can create real problems.
Two sets of advice, one situation
Mistakes often happen where the two fields touch. An immigration lawyer may not be thinking about equalization. A family lawyer may not spot that a line in an affidavit could come back in an immigration file. An affidavit in a family case may describe the relationship as short-lived or say that it “was never real,” and this may later be read by someone else. Make sure anyone advising you knows about both sides of your situation.
A separation agreement is often the place where these issues come together, whether through the indemnity clause, travel consents, or a schedule for handing over documents. Before you sign one, have it reviewed properly. Our family law and permanent residence pages give background on those areas, and our office can be reached for a consultation if your situation involves both.
Separating is hard enough without inaccurate warnings from relatives or from the person you are leaving. Find out your landing date, get your documents together, and ask about the rules before you act on what you have heard.