Separation and Immigration Status in Ontario: Sponsored Spouses

If you came to Canada as a sponsored spouse, or you sponsored your spouse, a separation raises two sets of questions at once. One is about family law: support, property, the home and children. The other is about immigration status and what the sponsorship means going forward.

This article explains the family law side in plain terms. The immigration side depends on your documents, your stage in the process and your circumstances, so it is best confirmed with an immigration lawyer before you make decisions you cannot undo.

Two separate questions: family law and immigration

Family law decides things like spousal support, dividing property, who lives in the home and parenting. Your immigration status and what a sponsorship means for you are separate questions that depend on your own file, so they are worth confirming with an immigration lawyer. How a family court order or separation agreement fits with an immigration outcome depends on your situation.

Because the two can affect each other, try to get advice on both before signing a separation agreement or leaving the home. How your status or sponsorship is affected depends on the facts and is worth confirming with a lawyer.

Separating is not the same as divorcing

You do not have to divorce after separating. Ontario's Family Law Act and Children's Law Reform Act deal with support and parenting for married couples who separate without applying for a divorce, and for unmarried couples.

If you do want a divorce, the only ground is breakdown of the marriage, and one way to show it is living separate and apart for at least one year. You can apply before the year is up, as long as you are living apart when you apply, but the year must have passed before the divorce is granted. A divorce based on adultery or cruelty can be applied for at any time, and the one-year wait does not apply. A divorce usually takes effect on the 31st day after the judgment. Living together again for no more than 90 days in total, mainly to try to reconcile, does not interrupt the year.

Spousal support after separation

Married spouses can claim spousal support. So can partners who lived together as a couple for at least three years, and partners in a relationship of some permanence, for any length of time, who had a child together.

The Spousal Support Advisory Guidelines are only guidelines, but lawyers and judges often use them for the amount and length of support. Factors include the income gap, children and childcare, age, health, each person's role in the relationship and their ability to support themselves. In a divorce case, a court setting support must not consider either spouse's misconduct in the marriage.

How a sponsorship commitment relates to a support claim depends on your situation, so it is worth confirming with an immigration lawyer.

Property, the home and safety

• Married spouses generally share equally the value of property acquired during the marriage, but most gifts and inheritances (other than the family home), insurance money paid because someone died, and compensation for personal injury are usually left out. The spouse with the larger net family property pays half the difference as an equalization payment. A court can divide property unequally only in very special situations, where an equal split would be extremely unfair.
• The full value of the family home is shared, even if one spouse owned it before the marriage.
• A married person can ask a court for exclusive possession of the family home, even if it is in the other spouse's name.
• Common-law partners have no legal duty to split property acquired while together, and property generally belongs to the partner who bought it.

If you are in danger, call 911 or local police, make a safety plan and, if you have children, try to take them with you when you leave. A court deciding exclusive possession of the matrimonial home must consider violence against the other spouse or the children. You may also be able to apply for a family court restraining order if you were married to or lived with the person for any period, or have a child with them.

What to do next

• Gather your immigration documents, sponsorship papers and any correspondence in one place, and keep copies somewhere you control.
• Write down the date you separated, because it matters for property and divorce timing.
• Make a list of income, debts, property and pensions for both of you.
• Do not sign a separation agreement until you have asked how it affects your immigration situation.
• Book advice from an immigration lawyer and a family lawyer, and tell each about the other issue.

Property claims have time limits. A court claim for an equalization payment must be started within six years after the separation date, or two years after the divorce becomes final, whichever comes first. Whether that deadline can be extended, or whether other deadlines apply to you, depends on your situation, so confirm your timing with a lawyer early.

Frequently asked questions