The Effect of Immigration Sponsorship in a Short-Term Marriage on Spousal Support

Considerations a Court takes into account when making an award for spousal support

Section 15.2 of the Divorce Act outlines when spousal support will be awarded for married couples.

Section 15.2(4) indicates that in making an Order for spousal support, the court shall consider the condition, means, needs, and other circumstances of each spouse. This includes:

• Length of the cohabitation;
• Functions performed by each spouse during cohabitation; and,
• Any order, agreement, or arrangement relating to support of either spouse.

In addition, section 15.2(6) provides that any Order for spousal support should:

• Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
• Apportion between the spouses financial consequences arising from the care of a child;
• Relieve economic hardship of the spouses arising from the separation; and,
• Insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

For spouses (which includes common-law spouses), section 30(8) and (9) of the Family Law Act details that:

An order for the support of a spouse should:

• Recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
• Share the economic burden of child support equitably;
• Make fair provision to assist the spouse to become able to contribute to his or her own support; and,
• Relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

In determining amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties. These circumstances include:

• The dependant’s and respondent’s current assets and means;
• The assets and means that the dependant and respondent are likely to have in the future;
• The dependant’s capacity to contribute to his or her own support;
• The respondent’s capacity to provide support;
• The dependant’s and respondent’s age and physical and mental health;
• The dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
• The measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
• Any legal obligation of the respondent or dependant to provide support for another person;
• The desirability of the dependant or respondent remaining at home to care for a child;
• A contribution by the dependant to the realization of the respondent’s career potential;
• Repealed:  1997, c. 20, s. 3 (3);
• If the dependant is a spouse, the length of cohabitation; the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation; whether the spouse has undertaken the care of a child; whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents; any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support; the effect on the spouse’s earnings and career development of the responsibility of caring for a child;
• Any other legal right of the dependant to support, other than out of public money.

Impact of immigration sponsorship on an award for spousal support

When a Canadian citizen sponsors someone to come to Canada, the sponsor must sign an undertaking with the Canadian government that the sponsor will support the immigrant for a period of time, usually three years.

Family law courts in Ontario have held that where there is a sponsorship agreement for a period of time, spousal support will be owing for the period of the length of the sponsorship agreement, even if the duration of spousal support would not normally be that long otherwise.

Both Carty-Pusey v. Pusey, 2015 ONCJ 382 and Gidey v. Abay, 2007 CarswellOnt 6145 held that an immigration sponsorship agreement is a relevant factor in determining entitlement to spousal support and the duration of spousal support was held to be the length of the immigration undertaking the payor signed.

To learn more, contact the family lawyers at Krol & Krol at 905.707.3370.