IMMIGRATION: Landmark ruling gives defaulting sponsors possible relief

IMMIGRATION: Landmark ruling gives defaulting sponsors possible relief

Cristina de Altamirano sponsored her mother from Argentina to Canada in 2000. In 2002, her mom had a stroke here and ended up in a nursing home.

Hamid Zebraradami sponsored his fiancée to Canada in 1999. She left him about a week after her arrival and headed straight to the nearest welfare office. She didn’t tell him where she was going or that she would be applying for social assistance.

Nedzad Dzihic sponsored his fiancée in 2002. Upon arrival, she changed her mind about marrying him.
She successfully appealed a deportation order and got to stay here permanently. Mr. Dzihic married another foreigner in 2006 and sponsored her. However, the sponsorship was refused because, unbeknownst to him, his first fiancée had also picked up a cheque or two from welfare authorities.

In each case, the government of Ontario provided social assistance to people who were supposed to support themselves or be supported by their Canadian sponsors. In each case, there was a failure for some reason or another to honour a signed undertaking of support that our federal immigration department relied upon when issuing an immigrant visa.

As in all sponsorship situations, our government did not concern itself with the financial resources of the relatives abroad. Instead, it concerned itself with the income of the Canadian sponsors.

Before 2002, Canada and Ontario “took few active steps to enforce sponsorship debt”, presumably, because there was no procedure for sharing information between them.

By 2004, almost 7,500 sponsored relatives were on social assistance in Ontario costing provincial taxpayers $70 million annually.

In the summer of 2005 the province started to enforce these sponsorship undertakings after having set up the Overpayment Recovery Unit.

The Ontario government crafted its training manuals with policies which seemed to be contradictory. Although its “Guiding Principles” referred to the possibility of waiving debt collection in “extraordinary circumstances”, elsewhere the manuals stated that “there is no provision for negotiating a settlement less than that of the total amount”.

The three sponsors mentioned above, and five others, sought relief from Ontario’s Superior Court on the basis of their own individual circumstances. They argued that since our immigration laws state that welfare money “may be recovered” from them, our governments thereby had the discretion to waive all or part of the debt. Further, if the court were to agree that such discretion existed, then there must be a procedure for the sponsor to explain their circumstances before they are forced to repay the moneys owed.

The court disagreed that such discretion existed. However, last week the Ontario Court of Appeal overturned the lower court decision and declared that Ontario and the Federal government have discretion to forgive sponsorship debt; that they have to provide sponsors in default with a process to explain their circumstances; that they must consider those circumstances; and must inform the sponsors of the decision made. The court, however, refused to order the government to notify a sponsor as soon as their sponsored relative applies for welfare.
This decision finally brings some long awaited fairness to this process.

However, don’t break out the champagne yet since this case may end up in the Supreme Court of Canada.

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Guidy Mamann practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email reporter@migrationlaw.com.