Did you think that having a child would prove your marriage was genuine? Think again.
By Joel Sandaluk / Partner, Immigration Lawyer
A couple of weeks ago, I received a decision from the Immigration Appeal Division allowing an appeal and permitting my client to bring his wife to Canada as a member of the family class. This was great news and my client is thrilled that he will soon be reunited with his wife and his young son.
What was troubling about this case however, wasn’t the result. It was the amount of effort that my client had to expend in order to convince immigration that he and his wife were in a genuine spousal relationship.
My client (a Canadian citizen) and his wife got married in 2009 after meeting in Vietnam a year prior. They communicated frequently and he travelled to visit her each year for weeks at a time, incurring significant expense and taking a substantial amount of time away from his work as a truck driver. After they had been married for a few years, my client’s wife became pregnant and gave birth to their son. By virtue of Canada’s Citizenship Act, any child born to a Canadian citizen abroad is automatically a Canadian citizen. My clients applied for and received a Canadian passport for their son.
Why then, was this application refused? It is true that my client had previously sponsored another woman (his first wife) to Canada and had that marriage collapse. It is also true that before coming to me, my client had sought assistance from a “lawyer” with offices in Vietnam and Toronto. That representative made many mistakes including factual errors in completing the application which led to a difficult and confusing interview at the visa post. However, by the time that my client came to me and at the hearing of his appeal before the Immigration Appeal Division, all the relevant facts in this case were explained and supported by evidence.
Despite this, the Minister continued to oppose the appeal, taking the position that the existence of a child was not enough to establish the genuineness of a relationship. As a lawyer, and as a father, I found this approach not only offensive but bizarre. The Federal Court has rendered a number of decisions which establishes very clearly that the existence of a child of a marriage represents a very positive factor in establishing if a relationship is genuine, even endorsing an approach that the existence of a child makes a prima facie case of a genuine relationship.
The Government’s approach flies in the face of the Court’s reasoning in this matter. Taking the position that a person not only entered into a marriage for immigration purposes but also brought a child into the world primarily for the purpose of obtaining status in Canada. Even in its reasons for decision, the tribunal stated that “there have been instances where people elect to bring a child into the world primarily to increase their chances of succeeding in a sponsorship appeal.” No authority for this proposition was cited. I have never met an “immigration baby” nor do I believe I am ever likely to.
The real tragedy of the government’s approach is that it caused not only the separation of my client and his wife, but also the separation of a father from his child during his fight to be reunited in Canada. The Minister fought my client tooth and nail.
Although my client and his family will soon be reunited, this comes at the end of a painful separation that included the first six years of his son’s life.
This separation and the damage that it caused to my client’s family was unnecessary, avoidable and entirely unjustified.
It is because of my experience from this and other cases that when a client comes to my office and tells me that because they and their spouse have a child it should resolve any question of the genuineness of their marriage, that I often just look at them and shrug.
Then I tell them that immigration may believe that they had their child for ‘immigration purposes’ – that we should assume nothing and prepare for a fight.