Can My Spouse Divorce Me Before I Get Permanent Resident Status? Will I Be Deported?

Family law is an area of law that frequently implicates issues arising in other areas of law – immigration in this case. Your question raises both family law and immigration law issues, and I will do my best to outline both areas.

For your husband to seek a divorce, there are certain conditions that must be met. Foremost, the marriage must be recognized as valid; a Canadian court will not grant a divorce related to a marriage that is not considered legal in Canada. Also, one of the spouses must have been ‘ordinarily resident’ in the province in which they sought the divorce for one year prior to the application. That means (for example) that for your husband to apply to an Ontario court for a divorce, he must have been ordinarily resident in Ontario for a year prior. You can read this blog, where I further discuss what it means to be ‘ordinarily resident’ for family law purposes.

In Canada, there are three grounds that could entitle you to a divorce. However, the most common ground is living separate and apart for at least one year. This is a legal test, and the fact that you and your spouse are not in the same country does not necessarily mean that you are living separately and apart. Many married couples live in different regions (e.g. soldiers deployed to another country) so the important question to ask is whether a stranger observing you and your wife would think that you are married. Perhaps you used to visit her frequently and no longer do, or you no longer speak on the phone. It is always best to consult with a family lawyer to determine whether you are eligible for a divorce, especially in unique situations such as yours.

If you and your husband are eligible for a divorce, there are three types in Canada. The first is a joint divorce. This is where one spouse files an application for divorce with the consent of the other spouse. The second is an uncontested divorce. This is where one spouse files an application for divorce, and the other spouse does not file an “Answer” within the time limit. This allows the spouse seeking the divorce to get a divorce order without the other spouse being able to contest it. The final type is a contested divorce. This occurs when one spouse files for divorce, and the other spouse does not agree with the terms of the divorce, such as property division or spousal support. In such cases, the other spouse will file an “Answer” and the divorce will proceed as a family court proceeding. You should watch this video where I explain the family court process, which applies to contested divorces.

When spouses get divorced, there are a number of ‘corollary’ issues, such as division of family property, spousal support and child support that you and your spouse must resolve. If there are children, a judge will not grant a divorce unless there are concrete plans in place for the support of the children. You should watch this video on divorce and children and listen to this podcast explaining the law on spousal support. In any case, it is important to speak with an experienced family law lawyer about these issues as if they are not dealt with properly, it can end up costing you a lot of money.

As far as the immigration consequences of a potential divorce, the best answer one can give without having further details about your immigration status is: it depends. The best advice I can give you at this point is to go see an experienced family law lawyer and bring all your immigration documents – a good lawyer will be able to glean from your documents exactly how a divorce will affect your immigration status.

On the limited facts that have been provided, the best answer that I can give is that it depends on the basis on which you have status in Canada now. If you came to Canada as a sponsored spouse or partner, then your status in Canada is dependent on you maintaining that status. If this is the case and your permanent residency application is based on your spousal status, then most likely the divorce would entail you having to leave Canada. In such cases, for you to continue the application may amount to immigration fraud, as you are trying to gain a status in Canada that is not based on truth. As well, there may be conditions attached to your current status in Canada, such as having to live with your spouse for a certain period. If the divorce means that any of the conditions are no longer met, you may be forced to leave Canada. However, if your immigration status is not tied to your relationship (e.g. you are in Canada on a temporary resident permit or work visa), a divorce should not have any effect on your status. In such cases, your immigration status is independent of your marital status and the consequences for each do not overlap.

This podcast, featuring an immigration lawyer, has a more complete explanation of the significance of separation and divorce when your immigration status is pending.

To learn even more about the law of divorce in Canada, you may want to get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac. You may also want to listen to this podcast or watch this video. You can also use the search on the right to find lots more articles about marriage and divorce.

Obviously, there is a lot at stake if you separate while immigrating to Canada. You need to get the help of lawyers immediately to avoid not only being deported but also losing the ability to make claims against your spouse. Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate). Where necessary, we will involve an immigration lawyer in that consultation.

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