“The contractual basis for spousal support is based on the undertaking that the Applicant signed when he sponsored the Respondent as a permanent resident to Canada. That undertaking says:
I undertake to provide for the basic requirements of the sponsored person and his or her family members who accompany him or her to Canada, if they are not self-supporting. I promise to provide food, clothing shelter, fuel, utilities, household supplies, personal requirements, and other goods and services, including dental care. eye care, and other health needs not provided by public health care. I understand that the money, goods or services provided by me must be sufficient for the sponsored people to live in Canada.
I promise that the sponsored person and his or her family members will not need to apply for social assistance.
I make these promises so that the sponsored person and his or her family members listed on this undertaking can be admitted to Canada as permanent residents. understand that the sponsored person and his or her family members will be admitted solely on the basis of their relationship to me as sponsor] and that they do not need to have the financial means to become established in Canada.
I understand that the validity period of this undertaking begins on the day on which the sponsored person enters Canada if that person enters Canada with a temporary resident permit or, If already in Canada, on the day on which the sponsored person obtains a temporary resident permit following an application to remain in Canada as a permanent resident, and in any other case on the day on which the sponsored person becomes a permanent resident The length of the undertaking will wary according to the relationship of the sponsored person and his or her family members to me las sponsor and their age and it ends:
if the sponsored person is my spouse, common law partner, or conjugal partner, on the last day of the period of 3 years following the day on which they become a permanent resident;
The undertaking goes on to say that it continues to be binding even if the circumstances change and the parties separate and divorce. The law has accepted that these undertakings are “very much relevant” to the determination of spousal support. As a result, Courts have found them to be agreements that can be considered under section 15.2(4)(c) of the Divorce Act. Segal v. Qu 2001 CanLII 28201 (ONSC).
In this case, the agreement was signed on August 24th, 2018. The matter was previously the subject of a motion before Trimble J. His Honour issued an endorsement on February 8th, 2021 in respect of dental and other benefit coverage.
Trimble J. determined that the undertaking required the Applicant to maintain benefits coverage for the Respondent until August 24th, 2021, three years after the agreement was signed. I understand that this was done. Certainly, the Respondent has not provided any evidence to show that she is out of pocket for any benefits expenses in this time period.
As a result, the undertaking applies until August 24th, 2021. The question is what does this undertaking require of the Applicant? A number of cases were relied upon by the parties in respect of what the legal effect of this clause is. I have considered all of these cases.
One of the earliest cases, Samy v. Samy 2000 BCSC 1211. In that decision, the Court stated (at para. 13):
[13] There is no doubt that the sponsorship agreement is a contractual arrangement between the husband and the Government of Canada. It imposes an obligation on the husband to provide for and maintain his wife for a maximum period of ten years. The husband has agreed by way of an undertaking to provide for the “essential needs … including shelter, food, clothing and other goods or services necessary for day to day living” for his wife. I have no doubt that the wife relied on that agreement in that she left Fiji for Canada knowing that her husband would provide for her. In determining entitlement, the undertaking cannot be ignored. To do so would render it meaningless. Moreover, it would be contrary to public policy to permit a person who has given an undertaking to provide support for a spouse to simply ignore the legal obligation to do so. Obviously, the Government of Canada in requiring such stringent undertakings from prospective sponsors has taken into consideration the inherent difficulties that some persons experience in making the necessary adjustments in coming to a new country and becoming self-sufficient. It should also be noted that the agreement specifically states that separation or divorce from a sponsored spouse does not cancel sponsorship obligations. Therefore, the agreement is very much relevant in determining entitlement. However, the agreement that would otherwise bind the husband for ten years cannot supersede the specific laws that deal with maintenance. In other words, sponsorship agreements cannot impose obligations greater than those imposed by the family law. The sponsorship agreement must be considered together with the general principles applicable to spousal maintenance. In the circumstances the provisions of both the Divorce Act and the Family Relations Act are nevertheless applicable.
There are two points that emerge from this passage. First, the immigration undertaking can trigger contractual obligations for support. Second, that the undertaking is not intended to go beyond statutory entitlements.”
Nijher v. Dhaliwal, 2024 ONSC 1591 (CanLII) at 27-33