Divorce and Immigration Sponsorship in Ontario: What Continues

If you sponsored your spouse to come to Canada, or you were the sponsored spouse, a relationship breakdown raises two separate questions. One is how to end the marriage under Ontario and federal family law. The other is what happens to the promises made in the sponsorship.

This article explains how the sponsorship undertaking and the divorce process work side by side. It does not replace immigration advice. Questions about a specific person's immigration status depend on the facts and are best confirmed with a lawyer or with IRCC.

What happens to the sponsorship undertaking when you separate

A spousal sponsorship undertaking lasts 3 years from the day the sponsored person becomes a permanent resident, outside Quebec. Divorce or separation does not end the sponsor's financial responsibility during that time. Justice Canada says the same: the undertaking stays in effect for three years after the person becomes a permanent resident, even if the couple separates or divorces.

In plain terms, a breakup does not cancel the sponsor's commitment. Quebec uses a different period, so anyone sponsored there should check the rules that apply to them.

• Sponsors: do not assume that separating or divorcing releases you from the undertaking.
• Sponsored spouses: your sponsor's responsibility continuing is separate from your own immigration questions, which depend on your situation and are worth confirming with an immigration lawyer.
• Both: keep your sponsorship and permanent resident dates, because the three-year period runs from the day of permanent residence.

How an Ontario divorce works

A court in Ontario can hear a divorce only if either spouse has been habitually resident in Ontario for at least one year immediately before the proceeding starts. The only ground is breakdown of the marriage. The other spouse does not have to consent, and there is no minimum length of marriage.

Breakdown is usually proved by living separate and apart for at least one year before the court decides the case, and the spouses must have been living apart when the case started. Spouses count as living apart for any period they lived apart while either one intended to live separately, so only one spouse needs to intend the separation. Living together again for a total of not more than 90 days, mainly to try to reconcile, does not interrupt the year.

Once the court grants the divorce, it takes effect on the 31st day after the judgment is made. Special circumstances can allow an earlier date if both spouses agree and undertake not to appeal.

Support and money after a sponsored marriage

The sponsorship undertaking is not the same thing as spousal support in a divorce. In a divorce, the court can order the support it thinks reasonable, looking at each spouse's condition, means, needs and other circumstances, including how long they lived together and the roles each played. Lawyers and judges often use the Spousal Support Advisory Guidelines to help set the amount and length of support, but they are only guidelines.

How the sponsorship responsibility and any support order interact in a particular case depends on the facts. Raise both with a lawyer so that nothing is missed.

Property is a separate question. The spouse with the smaller net family property is entitled to one-half of the difference between the two spouses' net family properties. A claim for that payment must be started by the earliest of 2 years after the divorce, 6 years after separation with no reasonable prospect of living together again, or 6 months after the first spouse's death.

Taxes, benefits and your will

• The CRA treats you as separated once you have lived apart because of a relationship breakdown for more than 90 days.
• Report the change by the end of the month after your status changed, through My Account or Form RC65, and benefits are adjusted from the month after the change.
• Support paid under a court order or written agreement is reported on line 21999, and only the deductible part, spousal support, goes on line 22000. Child support is not deductible.
• Legal fees for a separation or divorce cannot be deducted on line 22000, 22100 or 23200.
• If you divorce after making a will, gifts to your former spouse and their appointment as executor are revoked unless the will shows a contrary intention.

Beneficiary designations on insurance and registered plans should also be reviewed and updated. A lawyer or accountant can tell you how your own designations are treated.

What to do next

• Gather your sponsorship documents, including the undertaking and your permanent resident date.
• Write down the date you separated and where each of you has lived since.
• Report the separation to the CRA if more than 90 days have passed.
• Once the divorce takes effect, you can ask the clerk for a Certificate of Divorce (Form 36B). It costs $25.
• If you remarry in Ontario, bring official proof of a Canadian divorce to get a marriage licence. A divorce granted outside Canada follows a different process that includes a legal opinion letter from an Ontario lawyer.
• Speak with a family lawyer about the divorce and an immigration lawyer about status questions.

Frequently asked questions