Navigating Spousal Support and Spousal Sponsorship: Key Considerations in British Columbia

Written by: Raha Seyed Ali .

Navigating the end of a relationship is always challenging, but if your spouse immigrated to Canada through a sponsorship program, the situation could become even more complicated. In British Columbia, spousal support is governed by the Family Law Act (FLA), the Divorce Act, and the Spousal Support Advisory Guidelines (SSAG). When immigration and family law intersect, particularly in cases where a marriage is short-term and involves an immigrant spouse, understanding both the legal and practical implications is crucial.

Raha Seyed Ali is one of the few lawyers in Vancouver with extensive knowledge in both family law and immigration law. She will explain how spousal support is determined under family law and how sponsorship agreements may influence these decisions.

Purpose Spousal of Support: Spousal support is designed to ensure fairness between parties and to mitigate financial disparities that might arise following the breakdown of a relationship.

Framework:

• Family Law Act (FLA): The Family Law Act (FLA) in British Columbia is legislation that governs various aspects of family law, including property division related to marriage or marriage like relationships upon separation, parenting time, child support and spousal support.
• Divorce Act: The Divorce Act is the law that deals with marriage breakdown in Canada.
• Spousal Support Advisory Guidelines (SSAGs): Provides a framework for calculating spousal support but includes exceptions that we will refer to in this blog.

Section 161 of FLA outlines determining entitlement to spousal support based on various objectives. When determining spousal support, the focus is on addressing any economic impacts caused by the relationship or its dissolution, including the financial consequences of childcare beyond basic support obligations. The goal is to alleviate economic hardship resulting from the relationship’s breakdown and, as much as possible, to support each spouse in achieving financial self-sufficiency within a reasonable period.

Once the entitlement is established, Section 162 of FLA specifies relevant factors to consider the amount and duration of spousal support. This assessment involves considering the length of the relationship, the roles and contributions of each spouse during the relationship, and any existing agreements or court orders related to support. These factors help ensure that spousal support is fair and reflective of each spouse’s financial situation and contributions.

Exceptions According to SSAG:

1. SSAG S. 12.5 Exception: This allows for an individualized determination of spousal support in cases where compensatory claims are disproportionate to the length of the marriage. Examples include:

• One spouse relocates for the other’s job, giving up their own career.
• One spouse moves across the country to marry, abandoning a job or business.
• One spouse supports the other through education, only to separate before enjoying the benefits of enhanced earning capacity.

2. SSAG S. 12.7 Basic Needs/Hardship: This exception applies when the support formula does not meet the recipient’s basic needs, particularly in short or medium-length marriages. It is relevant for sponsored immigrants if the recipient’s income is insufficient and the payor spouse can afford to provide support.

Spousal Sponsorship Under Immigration Law

Nature of the Obligation:

• Immigration and Refugee Protection Act (IRPA): Governs spousal sponsorship in Canada. The sponsor signs an undertaking agreement for the government to provide financial support for the spouse’s basic needs for a specified period, currently three years.
• Interaction with Family Law: While sponsorship agreements are considered, they do not override family law principles in determining entitlement for spousal support. The obligation to support the spouse is a contractual commitment with the government and must be evaluated alongside family law principles.

Only because a Sponsorship Agreement has been signed does not necessarily mean that the Immigrant will be entitled to spousal support. The court does not “rubber stamp” the Sponsorship Agreement.

Case Examples

1. Achari v. Samy (2000 BCSC 1211):

• Facts: The husband had a ten-year sponsorship agreement, but the marriage lasted only one year. The wife, who had been self-sufficient in Fiji, struggled to find work in Canada and relied on social assistance.
• Outcome: The court awarded spousal support, recognizing the sponsorship agreement but emphasizing that family law principles govern spousal support obligations. The sponsorship agreement could not impose obligations beyond those required by family law.

2. Khan v. Irum (2021 ONSC 3314):

• Facts: Temporary spousal support was awarded based on the sponsorship period. The court considered the wife’s economic dependence, relocation hardships, and efforts to gain employment.
• Outcome: The support aimed to address economic loss and hardships while helping the wife work towards self-sufficiency. The court took into account the sponsorship agreement and her efforts to become independent.

Key Considerations in Short Marriages

1. Financial Dependence and Self-Sufficiency: Evaluating whether a spouse is financially dependent and their ability to become self-sufficient is critical, especially for immigrants facing challenges in the Canadian job market.
2. Economic Disadvantage and Sacrifices: Consider any economic disadvantages or sacrifices made by the sponsored spouse, such as leaving a career or relocating.
3. Contributions to the Marriage: Contributions to the marriage, including non-financial ones like homemaking or supporting the other spouse’s career, can also influence the determination of spousal support.

Conclusion

While sponsorship obligations are separate from family law, they are considered by courts in the context of family law obligations. If you were sponsored by your spouse and left your country or your career to join them in Canada, we suggest that you discuss your case with us as your claim for spousal support may vary as an exception or you may be able to seek a higher amount than normal or longer duration for payments.