Dear Miss Powell,
I have lived in Canada for the past 15 years and have been in a common-law relationship with a Jamaican man. We bought a house together here and have two children. I recently discovered that my spouse has been making arrangements with his high school sweetheart from Jamaica. He is planning to get married and take her to Canada, and I believe that is bigamy. What would be the ramifications? How can I stop this marriage? How do I stop him from sponsoring this woman and disrupting our lives here in Canada?
- PK
Dear PK,
Your question is not just an immigration law question, but also touches on and concerns Canadian family law and criminal law. This is a potentially controversial and emotional issue, and so I will provide you with definitions of the basic legal terms and the ramifications under Canadian law and leave you to choose the best course of action.
First, 'bigamy' is where a party goes through a form of marriage with another person whether in or outside of Canada while being married to another person. Or more succinctly, bigamy is the act of entering into a marriage when one of the spouses is legally married. The act is criminalised under the Canadian Criminal Code and The Jamaican Offences Against the Person Act, and offenders are liable to imprisonment for a term not exceeding five years (four years in Jamaica and five years in Canada).
I must emphasise that the key term is 'marriage', and I will not go into what constitutes a legal marriage here. The key issue is whether the act is recognised as a marriage in the country where it is celebrated.
While there is a recognition of common-law partnerships as relationships of permanence and certain rights and benefits flow from being able to establish that you have been in a relationship 'like a marriage' for a minimum of 12 consecutive months, the fact of the matter is that a common-law relationship is not a marriage under the law and, therefore, your man would not be committing bigamy under laws in either Jamaica or Canada, if he were to marry his Jamaican sweetheart.
You might be able to show up at the ceremony and 'show just cause why they may not join together in marriage' and may be able to stop the ceremony. However, that does not prevent them from proceeding at a later date. Furthermore, if they are already married, you can't report him for committing bigamy, as you are not legally married to him and there would be no just cause for criminal charges for bigamy.
DECLARATIONS
You should note that if your common-law spouse is planning to sponsor his sweetheart to come to Canada, he would need to make certain declarations about his relationships, properties, and income. The application clearly asks about the existence of current or former common-law relationships. He would need to state specifically when his relationship with you ended. If he is still residing with you at the time of the marriage and you have not separated emotionally and physically, then he could be deemed to have misrepresented material information in his sponsorship application and his sponsorship application could be denied.
You may present your complaints to Canadian Border Security. The key issue is that you would have to provide significant evidence to prove the "material misrepresentation". This would include the joint ownership of property, children, and strong proof that the relationship had not ended on the date stated on the application.
Think carefully about your options and the impact on your children at this point. Take this opportunity to seek counselling and plan the right approach.
Most importantly, speak directly to your spouse and deal with this issue before the marriage takes place. If he is determined to leave you, then you should know that you have recourse under family law in Canada. You might not be able to convince him to stay, but you can ensure that you do not lose the lifestyle that you have maintained for yourself and your children. You could also make an application for equalisation of the net family asset and claim child support. Also, if you are not living in Quebec, you might even be entitled to spousal support.
This is an unfortunate situation and indeed hurtful, so I would strongly recommend that you consult privately with a counsellor and a local lawyer to advise you further.
Deidre S. Powell is a lawyer, mediator, and notary public who is a member of the Jamaican and Ontario, Canada bars, with office located in Ottawa, Ontario. Her areas of expertise are in immigration, commercial, real estate, personal injury, family, and administration of estates. She is on the roster of mediators for Ottawa, Toronto, and the Dispute Resolution Foundation of Jamaica. Email: info@deidrepowell.com. Subject line: Immigration. Twitter: deidrespowell Facebook: jamaicanlawyer Tel: 613.695.8777.
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