How divorce impacts permanent resident claims

By Staff

Separation and divorce for residents who aren’t Canadian citizens doesn’t necessarily mean they will lose their status or be forced to leave the country, St. Catharines family lawyer Sharon Silbert tells

But it can pose some challenges, says Silbert, principal of Sharon B. Silbert Professional Corporation.

“It used to be that permanent resident status was often conditional on living with a sponsor for two years from the date on which the status was granted. Separating during the first two years could be a big problem,” she says.

“Fortunately, that condition was eliminated in 2017 because the government recognized that marriage fraud is relatively rare and most applications to sponsor a spouse are made in good faith.”

Even if they separate within the first two years after becoming a permanent resident, an individual who was sponsored by their spouse can’t lose their status or be made to leave Canada, explains Silbert, an experienced family lawyer who frequently represents clients who are not Canadian citizens in divorce cases.

The exception is if the immigration authorities investigate and make a finding that the relationship wasn’t genuine to begin with, or that the individual omitted required information or included inaccurate information in the application for permanent residency, she says.

That could result in a loss of permanent resident status, according to an Ontario legal guide.

So the risk associated with separation or divorce for a new permanent resident is much lower than it once was, she says.

“If a person is not a citizen or a permanent resident, it’s much trickier,” Silbert says.

Someone who is sponsored by their spouse to become a permanent resident — or those who are characterized as a dependent in an application for permanent resident status — are much more vulnerable given their application is based in part on that relationship, she says.

“A separation in those types of circumstances can mean you will not receive permanent resident status,” she says.

“If a person does not have permanent resident status and their application is connected to their spouse — either by being sponsored by their spouse or being included as a dependent in their spouse’s application — there may be some circumstances where that person could still apply for permanent residence status on their own, based on their job prospects, skills or sometimes even for humanitarian or compassionate reasons,” she says.

“Those are the kinds of situations where it would be particularly important that they seek legal advice before making any decisions.”

Silbert points out that access to legal services can be a challenge for vulnerable individuals who don’t have permanent resident status or Canadian citizenship. She says there are some resources available through Legal Aid Ontario, particularly for victims of domestic violence as well as through community legal clinics across the province.