Sponsors of ‘rogue’ immigrants must repay welfare, Supreme Court rules

TheGlobeandMail.com – news/politics
Published Friday, Jun. 10, 2011.    Mike Blanchfield, Ottawa – The Canadian Press

The Supreme Court of Canada has upheld the right of federal and provincial governments to collect social-service payments from the sponsors of immigrants.

The landmark ruling involves the cases of eight Ontario immigrant families that sponsored relatives from abroad, and who later went on social assistance.

Under federal immigration law, the sponsors agreed to repay any welfare payments that their new arrivals may have incurred after they got to Canada.

The high court, in a unanimous 9-0 ruling, overturned an earlier Ontario Court of Appeal ruling in favour of the sponsors, all of whom claimed various hardships.

The individual cases involved repayments of $10,000 to $94,000 in social assistance to the Ontario government.

“The risk of a rogue relative properly lies on the sponsor, not the taxpayer,” Justice Ian Binnie wrote Friday on behalf of the court.

The court said governments have limited discretion to delay collection of defaulted payments, but not to totally forgive the debts.

“The discretion enables the governments to delay enforcement action having regard to the sponsor’s circumstances and to enter into agreements respecting terms of payment, but not simply to forgive the statutory debt,” wrote Justice Binnie.

“In the exercise of this discretion, which Parliament has made clear is narrow in scope, the Crown is bound by a duty of procedural fairness. The content of this duty is fairly minimal.”

The government is obliged to notify a sponsor that they are in default, and allow them an opportunity to explain their financial circumstances.

“This is a purely administrative process. It is a matter of debt collection.”

In the eight individual cases before the court, the reasons the sponsors gave for not paying included leaving an abusive relationship and losing their own job. In a couple of cases, the fiancée or spouse of the sponsor simply took off after arriving in Canada and began collecting social services.

The sponsors filed motions in the Ontario Superior Court of Justice in 2008 to defer or avoid entirely making payments back to the provincial government.

The court rejected their argument, saying that sponsorship undertakings are in fact contracts, and that the sponsors understood they were assuming financial liability for their family members.

In 2009, the Ontario Court of Appeal reversed that ruling and said governments may exercise a case-by-case discretion not to collect. It noted that the law states money “may” be recovered.

The provincial appeal court ruled the government owes sponsors a duty of procedural fairness, entitling them to a process in which they can explain their circumstances.

The Supreme Court ruled that standard of procedural fairness was met in each of the eight cases.

“We are dealing here with ordinary debt, not a government benefits or licensing program,” said Justice Binnie.

He noted that Parliament has become “increasingly concerned” about the financial burden that is being shifted to the public treasury to financially support sponsored relatives in immigrant families.

“Family reunification is based on the essential condition that in exchange for admission to this country the needs of the immigrant will be looked after by the sponsor, not by the public purse,” Justice Binnie wrote.

“Sponsors undertake these obligations in writing. They understand or ought to understand from the outset that default may have serious financial consequences for them.”

Justice Binnie said the government does have some discretion when it comes to considering the specific hardships of sponsors.

“It would hardly promote ‘successful integration’ to require individuals to remain in abusive relationships. Nor would the attempted enforcement of a debt against individuals without means to pay further the interest of ‘Canadian society’,” he wrote.

“Excessively harsh treatment of defaulting sponsors may risk discouraging others from bringing their relatives to Canada, which would undermine the policy of promoting family reunification.”

Justice Binnie said the government should notify sponsors as soon as their relatives begin receiving welfare payments so debts don’t build up without them knowing. But ultimately the sponsors are responsible for keeping their relatives from becoming dependent on social programs.

“Nonetheless, it is inherent in the sponsor’s support obligation that the sponsor is to keep track of the sponsored relative he or she has undertaken to support. Family class immigrants are admitted solely on the basis of their relationship to the sponsor.”

Friday’s ruling does not affect refugee claimants, which are treated separately from family reunification applicants.

Of the two million permanent residents that were admitted to Canada between 1997 and 2007, about 615,000, or 27 per cent, were under the family class.

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