Can a Divorce Affect my Permanent Residence Status in Canada?
By Amar Ali, Immigration Solicitor
If your spouse has managed to gain a permanent residence in Canada, they'll be able to sponsor you to come and live with them. This law enables Canada to get the best immigrants they can, as people won't be discouraged by having to leave their families.
But the problem arises when a divorce happens. Or do they?
Can I lose my permanent residency if I get divorced?
Will a Divorce Affect My Immigration Status?
If you're an immigrant, your marriage and divorce might not have been certified by Canadian courts, so you might be wondering "Will my foreign divorce be recognised in Canada?".
Yes, it will. If you get divorced, Canada will legally recognise it.
But is this going to affect your immigration status?
Firstly, it depends on what your current immigration status is. Just because you were the spouse of a permanent resident, doesn't automatically mean you're in the country as a sponsor. Some couples may have two separate immigration statuses; this could be due to both spouses being eligible.
If this is you, nothing will change as your immigration status is not connected to your marriage.
However, if you came over as a sponsored spouse or partner, you may have to leave. Deportation will only be the case if you are unable to apply for permanent residency. Highly unlikely if you have been living in Canada for a while, and have paid your taxes and obeyed the law.
When you are a permanent resident, you will need to live and work in Canada for 2 out of 5 years- in case you're wondering "How many days can I stay out of Canada as a permanent resident?”
In Canada, it's illegal to marry someone for the purpose of becoming a permanent resident. So, if this is the reason why you and your spouse got married, it's unlikely that you'll be allowed to stay after your divorce. Although how one can prove this in a court of law is not an easy task.
However, the possibility of being deported is only there if you have been married for less than three years; after this period, you will no longer be their sponsor.
How can I Resolve my Sponsorship While Going Through a Divorce?
When your spouse sponsors you, for a period of three years, they will be financially responsible for you. Being a sponsor means being held eligible for any debt which you are unable to pay off, and being able to provide for the both of you, as well as any children you might have.
After this three-year period runs out, you will automatically be a permanent resident of Canada. Once you're in this situation, you'll be able to apply for jobs, government welfare, etc.
It doesn't matter if you go through a divorce, so long as you do not commit any crimes, Canada will not deport you. If you want, you'll even be allowed to marry again. And in your next marriage, your immigration status will not be connected at all to your spouse, and you'll have more freedom.
At this stage, you might be wondering "Is it mandatory to live in Canada after getting permanent residence?"
And that depends on what you mean by mandatory. If you wanted, you could move back to your home country, and there would be no law against doing this. But if you wish to start a life in Canada, you will need to stay in the country for 2 out of 5 years (minimum).
So, if you wish to leave for ten years and then come back and take off where you last left, then I'm afraid this isn't going to be an option.
If you're about to marry someone who is going to move to Canada, you'll need to be 110% confident that you'll be staying with this person for at least three years after they become a permanent resident. Of course, if you marry, you should want to stay with them forever, but I'm just talking from a legal perspective.
The purpose of the three years rule is to stop people from marrying only to get a permanent residence in Canada.
If you have been living and working in Canada while you were married, you will have contributed to your economy and your community. For this reason, it seems stupid to deport you, as doing so has the potential to ruin any career which you have started, and impact any friendships you might have, not to mention the effect that it could have on the education of your children.
What is the Difference Between a Divorce and a Separation?
There is, of course, a difference between a divorce and a separation.
A separation is when two people (either spouses or common-law couples) are still legally together, but living separately. When in this situation, both parties can date other people, but will still need to fulfil their legal and financial obligations.
I would not recommend separating from your spouse during the three years sponsored period as it could be used as evidence you only married for immigration rights.
If you're wondering "Can you lose permanent residency in Canada?", yes, and breaking the law is the best way to do it.
A divorce, on the other hand, is when a court officially ends a marriage. If you got married in Canada, then you will need to go through a Canadian court to get the divorce. However, if your marriage was certified in your home country, you will need to do it via the courts in your homeland. Although different countries have different laws about divorce, any divorce is going to be recognised in Canada.
Whether you wish to separate or divorce is going to depend on many factors, including the price of divorce, the probability of getting back together, and the divorce laws of your home country.
Conclusion
Going through a divorce is hardly ever a fun process. And when you throw in immigration worries and the threat of deportation, your fears can grow even more.
But thanks to the permanent residency scheme in Canada, so long as you were married for three years (whilst your spouse was a permanent resident) and you have followed the laws, you don't need to worry.
