Were you divorced outside Canada and applying to sponsor your second spouse?

By Adam Hummel / Immigration Lawyer

If so, your application may be flagged and your foreign divorce scrutinized by immigration authorities. 

I was recently retained by someone who had sponsored his wife to become a Canadian permanent resident. Even though she lived in Cuba and he lived in Canada, they had been married for a number of years and they had a daughter together. Obviously, he wanted her to join him in Canada. He filed a sponsorship application with Immigration, Refugees and Citizenship Canada (IRCC) and waited for the application to be approved.

Unfortunately however, his application was rejected.
Our client filed a Notice of Appeal to the Immigration Appeal Division (IAD), and then promptly retained us to help him.

Refusal
The IRCC refused our client’s application because they believed that our client was not properly divorced from his first wife when he married his second wife. This was a concern that was also raised by the IAD after we filed our Notice of Appeal.

Their argument essentially went, “If you were not properly divorced from your first wife, then you were still married to her when you married your second wife, making your second marriage improper since you cannot be married to two people at the same time. You cannot sponsor a spouse who you are not properly married to.”

On what legal grounds did they conclude that our client was not properly divorced? They looked to the Canadian Divorce Act, 1985, which governs the recognition of foreign divorces. The relevant section of that Act is the following:

Recognition of foreign divorce

22
(1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.

Idem

(2) A divorce granted, after July 1, 1968, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so, on the basis of the domicile of the wife in that country or subdivision determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for all purposes of determining the marital status in Canada of any person.

Other recognition rules preserved

(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.

Relying on the highlighted text in section 22(1), above, IRCC concluded that since our client and his first wife had been living in Canada and not “ordinarily resident” in Cuba “for at least one year immediately preceding the commencement of proceedings for the divorce” but had obtained a divorce from Cuba anyway, that their divorce would not be recognized by Canadian authorities.

We took issue with this interpretation of the law, and believed that our client’s divorce was, in fact, valid, for the reasons that followed.

Submissions to the IAD 

In rejecting the IRCC’s conclusion that our client’s divorce was not valid, we pointed out a number of important details. Our client’s first wife was born in Cuba, was a Cuban citizen, was a resident of Cuba prior to her sponsorship to Canada, and was married to our client in Cuba. We argued that this meant that the Applicant and his first wife had a “substantial connection” to Cuba. To us, it made sense that they were divorced in Cuba.

There was also no evidence that our client had looked around for which country to get the easiest divorce in (sometime called “forum shopping”) – for all intents and purposes, he got divorced in Cuba because that is where he got married.

Further – and most importantly – we also pointed out that IRCC did not raise any concerns about the divorce being valid in Cuba; they only asserted that the divorce was not valid according to Canadian law. This did not seem right, especially in light of the fact that our client’s second marriage was also registered in Cuba. If the Cuban authorities did not consider his divorce valid, then surely they would not have allowed him to get married a second time.

There is recent case law that points out that even though section 22(1) of the Divorce Act is relevant in such considerations, section 22(3) is equally important, since it states that,“nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.”

In plain language, this means that the provisions of the Divorce Act are important, but do not override the common law and how such divorces have been treated practically in other jurisdictions. In this example, the common law would be that a substantial connection with the foreign jurisdiction (in this case, Cuba) is sufficient to justify the recognition of a foreign divorce.

This reading of the Divorce Act also complies with a finding from the 1976 case of Powell v. Cockburn, which states that, “it should only be in very rare circumstances that a foreign divorce, properly obtained pursuant to the laws of that jurisdiction, should not be recognized as valid.”

We therefore submitted that since: (1) our client and his first wife had a substantial connection to Cuba; (2) that their divorce was valid; and (3) that since his second marriage was conducted in Cuba, his divorce must have been recognized as valid in Cuba as well, that it ought to be recognized as valid in Canada.

The IAD accepted our arguments, and the appeal was allowed.

Application to future cases

This is an important case for the purposes of spousal sponsorship applications and applications for permanent residents to Canada as a member of the family class. It is important because these sorts of cases often see marriages and divorces which were conducted and granted overseas.

The Divorce Act is only the lens through which Canadian authorities view foreign divorces, but it is obviously not how other countries look at such divorces. Even though Canadian law favours people living in the country in which they are obtaining the divorce, that is simply not the rule everywhere else in the world, and there is now evidence that Canadian authorities will recognize foreign divorces obtained, even if they are not in strict compliance with section 22(1) of the Divorce Act. 

If you file an application for permanent residence in Canada for your spouse, it is important that you adequately paper your application and know what IRCC will be looking for when they review your application. For this reason, it always helps to have an experienced lawyer assist you with this application, and ensure that you are prepared in the event that your application is refused, for whatever reason.

At Mamann, Sandaluk & Kingwell LLP we are happy to assist with any and all matters relating to spousal sponsorship applications, family-class applications for permanent residence, and, if necessary, the consequences of any refusals by IRCC. It always helps to have a lawyer look at specific circumstances and help figure out the best way for you to move forward.