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An immigration marriage fraud can arise when a foreign applicant marries someone to be sponsored so that they may immigrate to Canada. Frequently, the “relationship” ends shortly after, with a spouse claiming that the marriage was a fraud meant to assist the other’s immigration status. But can an immigration fraud be used by the spouse to obtain an annulment, which would make the marriage voidable? Courts have found that these types of fraudulent misrepresentations will not usually be a basis to grant an annulment.
Court Looks at Historical Cases of Marriage Deception
An annulment is a legal process to void a marriage, which states that the marriage was never valid. In Iantsis v. Papatheodorou, the plaintiff pleaded that the parties never cohabited and that the defendant fraudulently tricked the plaintiff into the marriage so that he could obtain an immigration status enabling him to remain in Canada. Three days after the marriage, the defendant applied for permanent admission to Canada and later refused to have anything to do with the plaintiff. The Court of Appeal cited several cases which limit the instances in which fraud and deception could justify an annulment. For example, the court considered Swift v. Kelley, which held that no marriage should be held as void solely on the basis that it had been entered into with false representations and that consent to marriage would not have been obtained but for such contrivances. The case also stated that “unless the party imposed upon has been deceived as to the person, and thus has given no consent at all, there is no degree of deception which can avail to set aside a contract of marriage knowingly made.” On the weight of prior cases, in Iantsis, the court concluded that immigration fraud could not be relied upon to grant an annulment.
Judge Finds Immigration Fraud Cannot be Used to Obtain an Annulment
Grewal v. Kaur concerned a motion for a summary judgment on a question of law. The case revolved around the interpretation of two Court of Appeal decisions. The applicant cited Torfehnejad v. Salimi to support the position that immigration fraud could result in an annulment. In turn, the respondent looked at Iantsis for the conclusion that immigration fraud cannot be relied on to grant an annulment. The applicant agreed that if it was determined that Iantsis remained good law, there would be no basis to grant an annulment due to immigration fraud. The applicant claimed that the decision in Torfehnejad overruled Iantsis and that there was a basis to grant an annulment in cases of immigration fraud.
In Torfehnejad, the parties married in Iran, but the applicant resided in Canada and later sought to have his marriage annulled. The judge accepted that marriage in Iran constituted a contract signed by both parties. Justice Greer also heard evidence that the law in Iran stipulated that “if, in a marriage, one party makes something contingent upon something else and does not tell the other party, the contract is null and void”. The court testified that under Iranian law, if one spouse intended to get a visa to come to Canada through marriage and would not consummate the marriage without the visa being granted, the contract would be nullified, and there would not be a marriage. The judge concluded that the respondent had been deceitful and married the applicant “having no real intentions to ever be his wife.” Consequently, Justice Greer found that the parties entered the contract in Iran through the respondent’s fraud. And under the law of Iran, the applicant was entitled to an annulment. Justice Greer also considered Iantsis but distinguished it since, in Ontario, “marriage is something more than a contract,” and in that case, the marriage took place in Ontario. Significantly, the judge did not suggest that Iantsis was wrongly decided.
Are There Public Policy Reasons to Revise the Law?
In Grewal, the judge concluded that under Ontario law, immigration fraud was not a proper ground for an annulment. Justice Sproat found that the decision in Torfehnejad could not be viewed as reversing Iantsis. If the decision was to be reconsidered, it had to be made by the Court of Appeal. The judge also addressed considered public policy arguments. The applicant argued that recognizing immigration fraud as a ground for annulment was a logical development in the law and would be in the public interest since it would:
- discourage individuals from attempting to “jump the queue” and gain a more favourable immigration status to enter Canada as a married person;
- provide relief to the innocent party who has sponsored the fraudster and assumed a support obligation;
- deter fraudsters by depriving them of family law remedies arising from their married status.
The judge noted that the first two related to the public interest in federal immigration policy. But section 4 of the Immigration and Refugee Protection Act provides that:
“a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily to acquire any status or privilege under the Act.”
The federal government had already defined “spouse” for immigration purposes, which meant “to exclude immigration fraudsters.” For Justice Sproat, there was no significance for immigration purposes in expanding the grounds for a marriage annulment. Turning to the third submission, he did not believe that family law remedies would be awarded to a proven immigration fraudster and that they would be disentitled from either spousal support or an equalization entitlement.
Consequently, there was no meaningful benefit from changing the law. However, he did identify some disadvantages. The first was that there was no principled reason to differentiate immigration fraud from other misrepresentations, perhaps relating to one’s assets or education, that might act as an inducement to marry. Also, if the law permitted an annulment based on immigration fraud, the judge worried this could simply promote costly litigation. And, while some individuals might prefer an annulment over a divorce for cultural reasons, the judge did not feel this was a sufficient reason to recognize a right to an annulment.
Earlier Decisions Are Binding on Ontario Judges
Ontario courts have concluded that immigration fraud that deceives one spouse into a marriage to immigrate and obtain status in Canada does not constitute a basis for granting an annulment. This ruling is binding on lower courts, and the Court of Appeal would need to consider any policy arguments that may support overturning prior case law.
Windsor Family Lawyers Advising Clients On A Variety Of Family Law Matters
If you suspect that your marriage was a victim of immigration fraud, it’s important to seek legal advice. Our experienced family law lawyers can help you understand your rights and options. Contact Johnson Miller Family Lawyers in Windsor today at 519-973-1500 or contact us online to schedule a confidential consultation.
