Law Times

Page 12 November 7, 2016 • Law Times www.lawtimesnews.com FOCUS Two-year cohabitation requirement to be repealed BY JUDY VAN RHIJN For Law Times S ince amendments were made to the Immigration and Refugee Protection Regulations requiring sponsored spouses to live together for two years before their perma- nent residency became uncondi- tional, social workers and lawyers have seen an alarming shift in the power balance between separat- ing spouses. The government has now announced its intention to repeal the condition. "I am confident that the ma- jority of the family law bar will welcome these changes," says Us- man Sadiq of Sadiq Law PC in To- ronto, referring to the publication of the federal government's pro- posed draft regulation, amend- ing the immigration and refugee protection act, in the Canada Gazette on Oct. 29. The Regulatory Impact Anal- ysis Statement published with the proposed amendment said as follows: "If the couple does not cohabit for the required two years, only the sponsored spouse or partner is at risk of losing their permanent resident status, re- gardless of the reason the cohabi- tation ceased. This creates an im- balance between the sponsor and their spouse or partner, which can make the sponsored spouse or partner more vulnerable." The statement identified a risk that sponsored spouses and partners could remain in abu- sive relationships, stating: "This could be due to a lack of knowl- edge about the exception, the perceived challenge of applying for and receiving an exception, or the fear of losing their immi- gration status. . . . On balance, the program integrity benefits of conditional permanent resi- dence have not been shown to outweigh the risks to vulnerable sponsored spouses and partners subject to the two-year cohabi- tation requirement." Sadiq says that "even though there was an abuse exception, the cohabitation requirement has al- ways been perceived as a way for an abusive partner to exert more control over a vulnerable spouse. "As the government is now acknowledging, there is no evi- dence that the two-year cohabi- tation requirement had its in- tended effect of deterring fraud- ulent applications," he says. "Furthermore, it will allow those who have married in good faith and separated for genuine reasons unrelated to abuse to not to have to worry about a co- habitation requirement." Archana Medhekar, a family lawyer in Toronto, says, "It's great that the government has identi- fied that we have unintended consequences of the policy." "It didn't support stopping abuse of the spousal sponsor- ship process due to marriages of convenience," says Medhekar. The repeal of the sponsor- ship condition will reverse an amendment made to the regu- lations on Oct. 25, 2012, which introduced the concept of con- ditional permanent residency to sponsored spouses. It had the unintended consequence of exposing sponsored spouses to retaliatory behaviour from their spouses, investigation from the Ministry of Immigration and possible deportation. "The repeal applies to those sponsorship applications in pro- cess and those applications cur- rently subject to the CPR," advis- es Medhekar. "These proposed amendments are a welcome step confirming reversal of an im- migration policy which has ad- versely impacted vulnerable im- migrant women since CPR was introduced. Seventy-five per cent of the exemption applications for abuse were from women." Sadiq witnessed the effect of the cohabitation condition of- ten in his practice. "If someone was in a genu- ine, legitimate relationship for a year and a half and the marriage broke down because of abuse or they were just not getting along, the only exceptions available were if there was a child or there was abuse," he says. "I've represented sponsors in this situation, and there are al- ways allegations of abuse right away. Then there are genuine victims who are financially de- pendent. If it hasn't been two years, they are forced to stay in the marriage longer than they want. It also leads to a power imbalance in the relationship if a person uses it as a threat over the spouse's head." The power imbalance cre- ated by the cohabitation con- dition also extended into the family law context. In her prac- tice, Medhekar often handled the family law side of the issue, while Deepa Mattoo, who was the staff lawyer at The South Asian Legal Clinic of Ontario, handled the immigration side. Mattoo is now director of le- gal services at the Barbra Schlifer Clinic, which offers legal repre- sentation, professional counsel- ling and multilingual interpreta- tion to women who have experi- enced abuse. "Even before there was conditional permanent resi- dency, if there was an allegation of abuse, immigration would still investigate if it was a genuine marriage or not," she says. Mattoo strongly disagreed with this approach. "It's not the state's business to investigate misrepresentation, especially when someone has experienced abuse and reported it already," she says. LT Usman Sadiq says amendments to immi- gration and refugee regulations will allow people married in good faith, and who separate, not to worry about a cohabitation requirement. It's great that the government has identified that we have unintended consequences of the policy. 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