Winnipeg Free Press - PRINT EDITION

Marriage fraud law helps and hinders

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Last month, Citizenship and Immigration Canada introduced new rules to combat marriage fraud.

Marriage fraud is a scam in which a foreigner pretends to love a Canadian or Canadian permanent resident in order to get married and immigrate to Canada.

Once in Canada, the foreign scam artist abandons the Canadian spouse, leaving them heartbroken and out the money they spent on the foreign spouse's expenses.

Because Canadians are required to financially support their foreign spouses for their first few years in Canada, Canadian spouses must also repay the government for any social assistance foreign spouses receives during this time.

To combat marriage fraud, conditional permanent residency was created for foreign spouses who are in short-term relationships with Canadian spouses or who do not have children in common with their Canadian spouses.

Under these "marriage probation" rules, a foreign spouse who does not live with the Canadian spouse for two years after immigrating to Canada can be deported.

In order to protect abused spouses, the government correctly waived marriage probation if abused spouses can "clearly show" the abuse was the reason for the marriage breakdown. However, given the need to prove abuse, will abused spouses simply choose to endure their abuse for fear they will not be believed?

If so, the law will actually hurt the people it is trying to protect.

In addition, there is also a possibility foreign scam artists could use these rules to victimize innocent Canadian spouses again.

For immigration scam artists, there is tremendous motivation to falsely accuse their Canadian spouses of being abusive.

After all, if a Canadian spouse is found to have abused them, the immigration scam artist will be able to stay in Canada without conditions.

The question is: Would this really happen?

In the U.S., marriage probation has been part of immigration law for years. Like the new Canadian law, U.S. legislation waives marriage probation for abused spouses.

In 2011, the U.S. Senate conducted hearings on this legislation. The report cited the case of Julie Poner, an American woman who testified she was falsely accused of abuse so her husband could remain in the U.S. past his conditional permanent residency.

Poner's story is a case of a well-intentioned immigration law that went horribly wrong.

In her testimony, Poner stated that after applying for her husband's immigration, he announced he wanted a divorce and she had to continue to sponsor his immigration.

According to Poner, her husband became abusive to their children and threatened to take them back to Europe with him.

When told by U.S. immigration officers she could be charged with marriage fraud if she continued to sponsor her husband, she withdrew the application.

It was then that her 6-2, 200-pound-plus former professional hockey player husband claimed that she, in fact, was the abuser in order to avoid his own deportation.

After leaving her home to protect her children, Poner was arrested, dragged back by FBI officers to her home state, and saw her kids put in foster care. Poner testified she was financially wiped out.

Her saving grace was she was eventually granted sole custody of her children.

How will immigration officers distinguish between abused spouses and spouses who make false accusations to remain in Canada?

Poner asked that U.S. law be changed to require officers to interview both spouses.

Under the new Canadian law, officers must not reveal allegations of abuse if the allegedly abused spouse could be put in danger.

While this is a sensible protection, immigration scam artists could use this to level false accusations of abuse without giving the Canadian spouse an ability to answer these charges. This is clearly a difficult issue.

Leaving the issue of spousal abuse aside, there is also the problem of couples who simply fall out of love.

In 2008, Statistics Canada recorded more than 13,000 divorces in Canada for people married less than four years.

In these cases, foreign spouses face the prospect of going back to their home countries after cutting their professional or work ties. After restarting a life in Canada, these spouses would be forced to leave Canada and start again. This is hardly fair. Falling out of love should not carry with it an immigration penalty.

R. Reis Pagtakhan is a Winnipeg

immigration lawyer.

Republished from the Winnipeg Free Press print edition November 27, 2012 A11

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