On April 3, 2010, Citizenship and Immigration Canada (CIC) published a proposed regulatory change that alters what factors will be considered to determine whether or not a family relationship was entered into in “bad faith.” For immigration purposes, “bad faith” is understood to be entering into a family relationship to circumvent the Immigration and Refugee Protection Act (IRPA). CIC is also proposing to clarify the regulations surrounding the assessment of adoptions.

Relationships entered into primarily to attain an immigration benefit have not been considered bona fide relationships under Canadian immigration law since the mid-1980s. These relationships are currently prohibited by section 4 of the Immigration and Refugee Protection Regulations (IRPR). The intent of R4 is to protect the integrity of the immigration program by preventing individuals from using relationships of convenience or bad faith relationships to circumvent immigration law. The provision currently states that a foreign national will not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the relationship is not genuine and was entered into primarily for immigration purposes.

The current R4 specifies two mandatory elements for determining “bad faith” relationships: (a) that a relationship is not genuine, and (b) that it was entered into primarily for the purpose of acquiring any status or privilege under the Act. This leads to a requirement that CIC be satisfied that both elements have not been met when refusing a case under this regulation and supporting that decision on appeal. However, CIC believes that a “bad faith” relationship is present when either of these related factors is apparent.

Among other things, the proposed regulation will create a disjunctive relationship between the “genuineness” element and the “purpose” element of the bad faith assessment. This will clarify that a finding of bad faith can be made if either of these elements is present.

Immigration practitioners have objected to this regulatory change for several reasons. First, it seems unreasonable that a marriage or adoption found to be genuine would still result in a denial; if the regulations are amended as proposed, this illogical result could occur. Second, under the current regulations, a couple can accumulate new evidence of a genuine relationship even after a final refusal under R4. However, if the proposed amendment passes, a couple might be able to later establish that their relationship is genuine with additional evidence but would still likely be denied because they could not provide any new evidence to establish that their intention was to marry or adopt primarily for immigration purposes at the time of the application.

The proposed regulation, as published in the Canada Gazette, appears here.