What To Do When Your Spousal Sponsorship Fails

Divorce by https://www.flickr.com/photos/128299857@N03/

by Cordell and Cordell / Flickr / CC BY 2.0

 

What am I Signing Up for?

While a Spousal Sponsorship can be a great way to get your foreign partner to come to Canada so you can live together and your partner can achieve status as a Canadian permanent resident, it also is an obligation on the part of both the sponsor and the sponsored spouse. More than that, it is a legal obligation. When your application to be a sponsor is accepted and when your sponsored spouse is accepted and given permanent resident status in Canada and the Province of Ontario, you will have signed the following as part of your application process:

 

Sponsorship Undertaking

This is a legal document signed by you the sponsor (and a co-signer should there be one), with the Minister of Citizenship and Immigration (aka CIC) where you promise to provide for your sponsored spouse and any dependent children they may have, the following basic necessities: 

  • Food,
  • Clothing,
  • Utilities,
  • Personal Requirements,
  • Shelter,
  • Fuel,
  • Household supplies,
  • Health care not provided by public health care services: eye and dental care. In Ontario there is a 3 month waiting period from the date of arrival of the sponsored spouse before they are eligible for OHIP (Ontario Health Insurance Plan).

 

Sponsorship Agreement

This is a legal document signed by you the sponsor, a co-signer should there be one, and your spouse and any dependent children. It involves the following legal commitments:

  • The sponsor (and the co-signer, if applicable) agrees to provide the basic necessities for your sponsored spouse and any dependent children outlined in the undertaking. This is so your partner will not have to go on social assistance.
  • The sponsored spouse agrees to seek assistance from the sponsor if unable to provide for their own basic requirements, before going to the Government of Ontario to seek social assistance.
  • The sponsored spouse agrees to the release of information on any social assistance received to the sponsor during the period of the undertaking.
  • The period of the undertaking for spousal sponsorship is 3 years from the date the sponsored spouse receives their permanent residence (inland), or from the day your sponsored spouse arrives in Canada as a permanent resident (outland). If your sponsored spouse has a dependent child then you the sponsor are responsible for the child for a period of 10 years or until they are 25 years old. 

 

What Can Go Wrong?

Like any couple in a romantic relationship, you and your sponsored spouse can encounter difficulties which can result in separation and conflict. This does not change your obligations, which are unconditional. If you and your spouse separate you are still responsible for his or her basic necessities. In other words, the sponsorship agreement remains in effect for the entire length of the undertaking period. There are certain exceptions to this, as explained below, but these are limited. In general you will remain responsible for your sponsored spouse whether you are living together or separated. There are two situations that are important to understand:

 

1. Sponsorship Breakdown

There are two conditions which must both be fulfilled for a sponsorship breakdown to occur:

  1. The sponsor (or co-signer) either refuses or is unable to provide some or all of the basic necessities outlined in the undertaking AND
  2. The sponsored spouse collects social assistance under either of the following provincial government support programs in Ontario:
    • Ontario Works (OW) is a program of the Ontario Ministry of Community and Social Services that provides income assistance to Ontario residents in need.
    • Ontario Disability Support Program (ODSP) is a program of the Ontario Ministry of Community and Social Services that assists people with disabilities who are in financial need, or who want to and are able to work but need financial support.

    If the sponsored spouse does not seek social assistance from either program listed above and instead uses self-support solutions to pay for his or her basic necessities then there is not considered to be a Sponsorship Breakdown.

In order to receive social assistance the sponsored spouse must:

  1. Attempt to first receive assistance from you the sponsor unless the sponsorship breakdown is caused by family violence; AND the sponsored spouse must provide information to the OW or ODSP about the sponsor.
  2. The OW or ODSP will determine if the sponsored spouse has no private means of self-support before approving the application for social assistance.
  3. The amount of social assistance will be the same as any other applicant in Ontario.
  4. Any partial support provided by the sponsor will be treated as income and deducted from the social assistance paid out.

 

2. Sponsorship Default

If your sponsored spouse does seek social assistance (i.e. a sponsorship breakdown occurs) then you the sponsor (and the co-signer) are in sponsorship default and are legally responsible for and must repay any social assistance payments your spouse receives. 

  • Until the debt owed to the government of Ontario is repaid in full, you the sponsor will not be allowed to sponsor any other family member.
  • Overpayment Recovery Unit: the ORU is responsible for collecting the debts resulting from sponsors who have defaulted on their sponsorship agreements.
  • The sponsored spouse also has responsibilities under sponsorship agreement which they have signed as well: they must first attempt to support themselves and then ask you, the sponsor, for assistance before they seek social assistance from the government of Ontario. 

 

What Happens When you receive a letter from the ORU

When a sponsorship breakdown and a sponsorship default occur, you the sponsor will receive a letter from the Overpayment Recovery Unit, or ORU, informing you that your sponsored spouse has received social assistance from OW or ODSP. This letter means that:

  • The OW or ODSP has informed CIC that a sponsored family member, your spouse, has received social assistance from the Government of Ontario, because you the sponsor are not providing support.
  • CIC will ban you the sponsor from sponsoring any other family member until the debt has been paid off in full.
  • The OW or ODSP has calculated the debt (social assistance received) and forwarded the case to the ORU.
  • The letter will provide you the opportunity to reach an agreement with the Government of Ontario to start resuming support payments to your sponsored spouse; OR it will indicate they are starting to collect the debt you the sponsor owe.
  • The ORU can also refer the case to the Canada Revenue Agency, or CRA. The CRA’s Refund Set-Off Program can garnish any Income Tax refunds you may be eligible for, in order to begin collecting the debt you the sponsor owe.
  • The ORU can also initiate Court Action against you to begin collecting the debt.
  • Your Credit Rating will be negatively impacted by this process and will mean it will be harder for you to successfully apply for a loan.
  • If you the sponsor have been convicted of a sexual offence or an attempt/threat to commit a sexual offence, you will be ineligible to sponsor anyone even when the debt has been repaid in full.

 

How Does a Sponsorship Breakdown Affect My Rights?

For you the Sponsor:

  • Your immigration status is not affected by a Sponsorship Breakdown;
  • Any rights and benefits you are entitled to in Ontario are not affected;
  • Your right to sponsor other family members in the future is conditional on:
    1. The undertaking or sponsorship period of 3 years for your spouse and 10 years or until they reach 25 years of age for any dependent children must have been completed;
    2. You the sponsor must have repaid any debts resulting from social assistance paid out to your sponsored spouse;
    3. You the sponsor must not yourself have been on social assistance for 12 months prior to initiating another sponsorship.

For the Sponsored Spouse:

  • Your immigration status is not affected by the breakdown;
  • Any benefits and rights that you are entitled to in Ontario are not affected by the breakdown;
  • You have the right to apply for social assistance from the OW or ODSP but must meet their financial need requirements;
  • You have the right to leave someone who is abusive or threatening even if they are your sponsor;
  • You have the right to end a violent relationship;
  • You have the right to sponsor a family member conditional on:
    1. Your sponsorship period of 3 years, or 10 years, or having reached 25 years of age in the case of a dependent child has finished;
    2. You have not been on social assistance for at least 12 months prior to applying to sponsor a family member.

Further, the Sponsor:

  • Does NOT have the right to make the sponsored spouse leave Canada.
  • Does NOT have the right any children or property under dispute. This will be settled in court under Family Law.
  • CANNOT withdraw a sponsorship if:
    • CIC has already issued a visa to the sponsored spouse, OR
    • The sponsored spouse is already a Permanent Resident.

 

How You the Sponsor Can Work Things Out

  • Contact the sponsored spouse directly – unless the breakdown is due to family violence – and offer them assistance to enable them to stop receiving social assistance from the OW or ODSP.
  • If your offer of assistance is not accepted, contact the OW or ODSP to see what your options are and to remain informed of the situation.
  • Try to reach an agreement with the OW or ODSP on how to resume providing assistance to your sponsored spouse and/or to begin repaying the debt.
  • Provide partial support to your sponsored spouse (the debt will continue to accumulate).
  • Contact a community legal clinic for advice on how to pay back the debt or advice on other options.

 

What Can Stop or Postpone Debt Repayment?

  • You the sponsor die (and the co-signer if applicable).
  • You the sponsor (and the co-signer if applicable) are in hospital, for example, and unable to pay the debt;
  • You the sponsor (and the co-signer if applicable) have undergone bankruptcy and the sponsorship debt has been covered by the bankruptcy discharge;
  • There is third-party verification of domestic violence by the sponsor against the sponsored spouse or vice-versa;
  • You the sponsor (and the co-signer if applicable) are receiving social assistance;
  • The sponsor (and the co-signer if applicable) are in receipt of Guaranteed Income Supplement (GIC);
  • You the sponsor (and the co-signer if applicable) have documented extraordinary circumstances: a serious health condition with expensive drug treatment for example.

NOTE: if the circumstances of the sponsor are likely to change, the debt may only be deferred for 12 months, rather than cancelled and the debt will continue to accumulate until the end of the sponsorship period.

 

What Prevents the Sponsored Spouse from Pursuing Sponsorship Support?

  • The sponsorship agreement has ended;
  • The sponsor is receiving OW, ODSP, GIC under OAS, or Gains-A;
  • The sponsor is deceased, having kicked the bucket, shuffled off his mortal coil, run down the curtain and joined the bleeding choir invisible;
  • The sponsorship has broken down due to family violence and the sponsored spouse has left the family home.

 

What happens after the sponsor has paid off the debt in full?

  • The ORU will notify the OW or ODSP that the debt has been repaid in full;
  • The OW or ODSP office will send a Confirmation of Repayment of Social Assistance Benefits form to the CIC to confirm the debt has been repaid in full;
  • The ORU will send a confirmation letter to you the sponsor that the debt has been repaid in full and that the file is now closed.

It is clear that a Sponsorship Breakdown can be a conflictive and drawn out process and should be avoided if possible. Ensure that you are well aware of your responsibilities as a sponsor before applying to sponsor a spouse to Canada and Ontario.


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