Navigating “Marriage of Convenience” in Canadian Immigration Law

Authored by Amit Vinayak, Barrister & Solicitor, Law Society of Ontario, Member of CILA

In the realm of Canadian Immigration Law, the concept of a “Marriage of Convenience” plays a critical role in maintaining the integrity of the immigration system. Such marriages, common-law partnerships, or conjugal partnerships are not recognized for immigration purposes if they are entered into primarily to gain status or privilege under the Immigration and Refugee Protection Act (IRPA) or if they lack genuineness (SOR/2002-227, s. 4(1)). A determination of a marriage of convenience can lead to inadmissibility for misrepresentation under paragraph 40(1)(a) of the IRPA (Immigration and Refugee Protection Act, SC 2001, c 27). 

Legal Framework 

The legal framework governing marriages of convenience is outlined in subsection 4(1) of the Immigration and Refugee Protection Regulations (IRPR). This provision establishes a disjunctive test: a foreign national will not be considered a spouse if the marriage was entered into primarily for acquiring any status or privilege under the IRPA, or if it is not genuine (SOR/2002-227, s. 4(1)). Importantly, only one of these conditions needs to be satisfied for the marriage to be deemed a “bad faith” relationship (A.B. v. Canada (Citizenship and Immigration), 2020 FC 19 (CanLII), para 41-42). This regulation aims to prevent individuals from exploiting relationships to circumvent immigration laws (A.B. v. Canada, para 42). 

Assessment of Primary Purpose and Genuineness 

When evaluating a marriage under subsection 4(1) IRPR, the “primary purpose” test focuses on the intention of one or both spouses at the time of marriage (Grewal v Canada (Citizenship and Immigration), 2021 CanLII 141631 (CA IRB), para 10; Lawrence v. Canada (Citizenship and Immigration), 2017 FC 369 (CanLII), para 11). Conversely, the “genuineness” test typically examines the present state of the relationship (Trieu v. Canada (Citizenship and Immigration), 2017 FC 925 (CanLII), para 25). Evidence relevant to one test can also inform the other, with some overlap in evidence despite their different temporal focuses (Trieu v. Canada, para 26; Lawrence v. Canada, para 14). For example, post-marriage evidence, such as ongoing commitment or the birth of a child, can demonstrate the primary purpose of the marriage (Lawrence v. Canada, para 11). 

Factors for Assessment (Chavez Factors) 

Courts and tribunals often utilize a set of factors, known as the “Chavez factors,” to assess the genuineness of a marriage and whether it was primarily for immigration purposes. These factors include (Grewal v Canada, para 11; Lin v Canada (Public Safety and Emergency Preparedness), 2017 CanLII 26505 (CA IRB), para 8): 

• Intent of the parties to the marriage. 

• Length of the relationship. 

• Amount of time spent together. 

• Conduct at the time of meeting, engagement, and/or the wedding. 

• Behaviour subsequent to the wedding. 

• Knowledge of each other’s relationship histories. 

• Level of continuing contact and communication. 

• Financial support. 

• Knowledge of and sharing of responsibility for the care of children brought into the marriage. 

• Knowledge of and contact with extended families of the parties. 

• Knowledge about each other’s daily lives. 

The weight given to these factors can vary depending on the case (Lin v Canada, para 8). 

Case Law Examples 

• Lack of Credibility and Relationship Genesis: In Grewal v Canada (Citizenship and Immigration), the IRB dismissed an appeal where the appellant sponsored her husband for permanent residence, finding the appellant’s account of her first marriage lacked credibility and appeared to be a marriage of convenience (paras 3, 4, 15, 25-26, 52). 

• Misrepresentation and Lack of Genuine Intent: In Lin v Canada (Public Safety and Emergency Preparedness), the IRB issued an exclusion order for misrepresentation, concluding that the appellant acquired permanent resident status through a marriage of convenience (paras 1, 24, 40, 42, 71). 

• Haste of Marriage and Overlapping Evidence: The Federal Court in Trieu v. Canada (Citizenship and Immigration) upheld the IAD’s decision that a marriage was not genuine and was entered into primarily for immigration purposes (paras 9, 11, 25-26). 

• Importance of Post-Marriage Evidence for Primary Purpose: Lawrence v. Canada (Citizenship and Immigration) emphasized that post-marriage evidence, which speaks to the marriage’s genuineness, can also be relevant to assessing its primary purpose (paras 15, 18). 

• Extensive Immigration History Indicating Primary Purpose: In A.B. v. Canada (Citizenship and Immigration), the Federal Court upheld the IAD’s finding that a marriage, while genuine at the time of the hearing, was primarily entered into for the spouse to acquire status under the IRPA (paras 18, 21, 40). 

• Misrepresentation Leading to Removal Order: Lee v Canada (Public Safety and Emergency Preparedness) affirmed a removal order based on a finding that the appellant became a permanent resident through a marriage that was not genuine (paras 1, 34, 36). 

Consequences 

A determination of a marriage of convenience can result in a foreign national or permanent resident being deemed inadmissible for misrepresentation under section 40(1)(a) of the IRPA (Immigration and Refugee Protection Act, SC 2001, c 27). This can lead to the refusal of a permanent resident visa application or the issuance of a removal order (Lee v Canada, para 36). While there is generally no appeal for inadmissibility on grounds of misrepresentation, an exception exists if the foreign national is the sponsor’s spouse, common-law partner, or child (IRPA, s. 64(3)). Once a finding of inadmissibility for misrepresentation is made, the individual remains inadmissible for a period of five years. During this five-year period, a foreign national who is inadmissible for misrepresentation generally cannot apply for permanent resident status (Immigration and Refugee Protection Act, SC 2001, c 27 at subsection 40(2)(a), (3); Gill v Canada (Citizenship and Immigration), 2019 CanLII 31073 (CA IRB) at para 9). This five-year bar applies from the date of a final determination of inadmissibility outside Canada, or from the date a removal order is enforced in Canada (Immigration and Refugee Protection Act, SC 2001, c 27 at subsection 40(2)(a). 

Disclaimer: The information provided in this article is for educational and informational purposes only and should not be construed as legal or immigration advice. This publication does not establish a client-attorney or client-consultant relationship, nor should it be relied upon for making immigration-related decisions. Readers are encouraged to seek professional legal counsel or a licensed immigration consultant for advice specific to their circumstances. The author and publisher disclaim any liability arising from reliance on the content herein.