On June 10, 2011, the Supreme Court of Canada released its decision in Canada (Attorney General) v. Mavi.  The case involved an appeal from numerous Ontario residents regarding relief from the sponsorship undertakings that they had signed to sponsor a family class member.

Potential immigrants under the family class are only eligible to apply for permanent residency once a Canadian citizen’s or permanent resident’s application to sponsor them has been approved.  Family class immigrants are not assessed independently on their ability to support themselves, as is the case with other immigrants.  The burden of showing sufficiently financial wherewithal lies with the sponsor.

I have yet to witness a case where a client showed concern about the sponsorship undertaking.  Usually the undertaking is treated as a joke, and sponsors normally tease their spouses / family members about not becoming “welfare bums”.  However, as the cases of the individuals in Mavi show, breaches of the sponsorship undertaking can often lead to huge debts.  Mavi involved individuals in the following circumstances:

• Mr. D sponsored his fiancee in 2002.  When she arrived in Canada she refused to live with him or marry him.  Mr. D tried to have his former fiance deported, however, her appeal was successful.  Unbeknown to him, she later went on social assistance.  In 2007, the Ontario government informed him that he owed $10,510.65 for breach of the undertaking.

• Ms. E sponsored her father, mothers, and two brothers in 1995.  Her husband was a co-signatory.  She later left him because of abuse.  She went on social assistance afterward, as did her father, and one brother.  In 2006 she was informed that she owed the Ontario government $94,242.16 for breach of the undertaking.

• Mr. G sponsored his mother in 1999.  He subsequently lost his job.  His mother applied for social assistance.  In June 2007 he was informed that he owed $54,426.39.

• Mr. H’s wife arrived in Canada in 2006.  She briefly lived with him, then cut off contact.  Unbeknown to him, she later remarried, and then went on welfare.  In 2007, he was informed that he owed the Ontario government $10,547.65 for breach of the undertaking.

• Ms. H sponsored her mother, who shortly after had a stroke.  She applied for benefits for her mother’s institutional care.  She later learned that she owed the government $54,559.99.

• Mr. M sponsored his father in 1996.  After his father arrived, they had a falling out.  In 2005 he learned that his dad had gone on social assistance.  He owed the Ontario government $17,818.08.

• Mr. Z’s spouse arrived in Canada in 2000, only to leave a few weeks later and remarry.  In 2007, Mr. Z found out that she had gone on welfare, and that he owed the Ontario government $22,158.02.

The provincial governments are generally very strict about enforcing these obligations, and the courts too have not been very forgiving.  In paragraph 41 of the Mavi decision, Justice Binnie noted that:

Family reunification is based on the essential condition that in exchange for admission to this country the needs of the immigrant will be looked after by the sponsor, not by the public purse.  Sponsors undertake these obligations in writing.  They understand or ought to understand from the outset that default may have serious financial consequences for them.

The court then went on to articulate some principles that underlie sponsorship undertaking debt collections.  Before signing the sponsorship undertaking, sponsors should therefore be aware of the following principles which I have pulled out from the judgment:

• The government has the ability to delay enforcement action having regrading to the sponsor’s circumstances and to enter into agreements respecting terms of payment.  As the court noted in paragraph 59, “the amount and terms of repayment are within the discretion of the government decision maker. An agreement requiring a sponsor to pay $20 a month on a $20,000 debt may never result in the full amount being paid, but it would nonetheless be an agreement which the government is authorized to make”.

• The government does not, however, have the ability to simply forgive the debt.  Section 135 of the Immigration and Refugee Protection Regulations simply does not allow for write-offs, but only “deferred enforcement” along the lines of the above point.

• The deferral of enforcement can be ended if the sponsor’s financial circumstances change.  The decision notes the example of a sponsor winning the lottery.

• Prior to filing a certificate of debt with the Federal Court, the government must notify the sponsor of its claim, provide the sponsor with an opportunity to explain in writing his or her relevant personal and financial circumstances that are said to mitigate against immediate collection, to consider any relevant circumstances brought to its attention (while keeping in mind that the undertaking was the essential condition precedent to allowing the sponsored immigrant to become a permanent resident), and to notify the sponsor of the government’s decision regarding how it is going to collect the debt.

• In carrying out the obligations above, the government does not have an obligation to provide written reasons.

• There is no hearing, and no appeal procedure.

• In the case of “rogue family members”, or family-class immigrants that have cut off contact with their sponsors, the government does not have a duty to advise sponsors that the rogue family member has started to receive social assistance.  Pursuant to paragraph 76, “the risk of a rogue relative properly lies on the sponsor, not the taxpayer”.

British Columbia and Sponsorship Default Debts

In British Columbia, the Ministry of Finance, Non-Tax Collections collects unpaid sponsorship default debts on behalf of the Ministry of Social Development. I have had experience contacting them on behalf of individuals before, and my experience has been that they already follow the principles articulated in Mavi.  They are quite flexible when it comes to scheduling payments over a period of time, however, they are unwilling / unable to simply forgive amounts owed.  When I advised one representative that my client simply could not pay, the respond was not surprising: “declare bankruptcy”.

Individuals that are contacted by the Ministry of Finance are provided with the opportunity to explain their financial circumstances, and to arrange a payment schedule.

If payments are not made, then the Ministry may take the following actions:

Canada’s family class and the spousal sponsorship program have recently been hit with two significant changes that are largely based on immigration programs found in other Western nations.  The first recent change is the proposed introduction of a sponsorship bar, which prohibits recently sponsored spouses from sponsoring a new spouse for three years after they land in Canada.  The second is a proposed change to move towards conditional permanent residency for sponsored spouses who have been in a relationship for less than three years with the person that sponsored them.

Given that the current Conservative government appears to be basing much of its changes to Canada’s immigration system on what other Western countries are doing, it is worth exploring another feature of many European countries’ immigration system that is absent in Canada.  This is the requirement that family class applicants either pass a language test or a test on their respective destination country’s culture in order to immigrate.

On June 9, 2010, for example, the United Kingdom introduced language tests for foreign spouses.  Under the program, all non-European immigrants to the United Kingdom must pass a basic English language test before being granted a visa.  The rules apply to anyone wanting to join their spouse or partner in the United Kingdom.

Effective November 15, 2010, meanwhile, a similar requirement was introduced in Denmark.  Applicants under Denmark’s family reunification program must pass an immigration test before they can immigrate.   The test is an oral one consisting of a language section and a knowledge section.  There are 70 questions, consisting of 40 language questions and 30 culture questions.  Applicants are required to get 30 out of 40 of the language questions correct, and 21 out of 30 of the Danish society questions correct in order to pass the test.  The questions on Danish society are asked in Danish, and applicants must answer in Danish.  The immigration test must be taken in Denmark, and applicants are required to travel to Denmark in order to take it.

On May 15, 2011, Søren Pind, Denmark’s immigration minister, announced that an exemption was being considered for spouses from developed countries.

Both Denmark and the United Kingdom based their laws on similar requirements in France, Italy, Germany, and the Netherlands.

I should note that I am not suggesting that the Conservative Government is going to move towards either introducing an immigration test for the family class, or for exempting nations of developed nations from that test.  There is nothing to suggest that the Conservative Government is even considering any of the above programs from the UK and Denmark.  However, an understanding of other systems provides a useful comparative perspective that could be interesting and potentially relevant in the future.