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Sham marriages: when people marry for immigration status

The allegation that someone married their partner because they're Canadian is often a source of conflict in a separation or divorce, but there is no remedy for that in the family court system, says Toronto family lawyer Steven Benmor

“It’s a driver of conflict, but it has no forum for resolution in family court,” he tells AdvocateDaily.com.

Benmor, principal of Benmor Family Law Group, says these issues often come up when Canadians marry non-Canadians, sponsor them to come to this country, and then they separate after the immigrant receives permanent residency status.

“The Canadian spouse will say, ‘I just got duped. I thought I was marrying somebody who loved me, but then I realized they were only interested in becoming Canadian,’” he says. “That’s a sham marriage.”

Benmor says he has represented individuals who have been accused of perpetrating a sham marriage while going through a divorce.

In many circumstances, it’s a Canadian man who marries a woman from another country and upon arriving in this country and living with their new partner for a period of time, things don’t work out because of language barriers, cultural differences and an inability to get along with their new husband’s family, Benmor says.

“Some women learn of their legal rights and then choose to leave their husband,” he says. “Some go to a woman’s shelter, obtain legal aid or hire a family lawyer and then sue for divorce, support and property division. It’s usually at that point that the Canadian spouse accuses her of immigration fraud or marriage fraud.”

In those situations, the spouse being accused of marriage fraud has to defend the allegation that she married him just because he is Canadian, Benmor says. 

“In the cases I have handled, I’ve had to argue that people marry for different reasons,” he says. “Some people marry for money or because they are from a good family. Others marry people because they’re good looking or drive a nice car — people marry for a whole host of reasons.

“If a person marries an individual because they’re sexually attractive or good in bed, is that any better of a reason or less morally repugnant than marrying someone because they’re Canadian and he or she wants to live in Canada? Is that marriage fraud?

“These are ethical questions but in a court of family law if a person marries an individual because they’re Canadian, that’s not marriage fraud.”

In fact, family court judges don’t deal with the marriage fraud issue when it comes up in divorce cases, Benmor says. 

“Immigration deals with immigration fraud,” he says. “Family court judges are focused on the orders they are asked to make, including when a parent asks for custody of their child, child or spousal support, property division or a restraining order. 

“When one spouse argues marriage or immigration fraud, the judge will hear the argument but there is no remedy available in family court for that so those allegations are really disregarded during that process.”

It may, however, impact an individual's immigration status, Benmor says. 

If the spouse has not yet received permanent residency status and if the basis for the immigration application is marriage and they are now separated, there are cases where the Canadian spouse often will attempt to cancel the sponsorship application and therefore prevent the non-Canadian spouse from remaining in the country, he says.

“In those situations, it’s typically advisable for the non-Canadian spouse to hold off separating until after they have received permanent residency status,” Benmor says.  

Marriages fail for all sorts of different reasons, most often for a breach of trust, he says. 

With sham marriages, there is often a breach of trust that involves a feeling that the immigrant used the Canadian just to become a resident here in this country, he says. 

But while this may ultimately have immigration impacts for the non-Canadian, it has no remedy in the country's family court system, he says.

It's often just a "side-show" in the divorce proceedings, Benmor adds.

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