CIP 188 - Episode 9 - The Spousal Penalty - Can't be gone soon enough
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[00:00:00] [00:01:00] Two express entry candidates. Same age, 31 years old. Same Canadian master's degree, [00:02:00] same job as software developers, and even the same English language at a CLB 9. Same everything on paper, but there's one difference: a wedding ring. The single candidate posts a strong score. The married candidate lands roughly 35 points lower.
Same human, same skills. The only variable is that one fell in love and got married. The question that runs through this whole episode, is it the ring that's the problem? Hold that thought. By the end, you'll know why the system does this, why the government's own data says it's wrong, and why this is the kind of change that can hit your next draw with zero warning.
Same score, same skills, one wedding ring, and 35 points gone. Mm-hmm. And this is what you and I have had a beef with forever, Mark. The CRS grid as it exists right now is not one scale, it's two scales. So anybody who's logged [00:03:00] in and taken a look and tried to create a profile knows that there is one points grid if you are a single applicant.
So as the principal applicant, there you are, you have a maximum score on your human capital factors of 500 points. So you know that you've got a maximum of age points of 110, education maxes out at 150, first language is 136, second language is 24, Canadian experience is 80. Great. However, as soon as you have an accompanying spouse, so as soon as you declare, yes, I'm married, and yes, I have an accompanying spouse, those personal maximums shrink.
So age goes down 10 points. It goes to 100. Education goes down 10 points. Language goes down 10 points. So does your Canadian experience. And so your ceiling effectively falls from a maximum of 500 human capital points to 460. So 40 points are gone. And what does the current system do? It says your [00:04:00] spouse has to make up those points.
And so now you're going to get scored as the principal applicant based on your spouse's education, your spouse's language test scores, and your spouse's experience, but only if they have Canadian high-skilled work experience. And this is where a lot of couples don't realize that their foreign work experience for a spouse is not gonna count.
Alicia, from the very beginning when Express Entry was launched, I looked at this factor, these spousal points, how they basically strip them away, and the individual, those 40 points from the principal attribute them to the spouse, and it was so prejudicial towards couples, and I could never figure it out.
Are they saying that because you bring a spouse to Canada that you are less likely to succeed versus if you come as a single and then marry a Canadian or permanent resident who's already here, then-- I was [00:05:00] trying to wrap my mind around, is this what they're saying? Because in the beginning, Alicia, when I saw that, we don't have the same restrictions that are put in the system now.
I just said, "Well, to heck with that. I'm just listing the spouse as non-accompanying after we get the ITA, say, 'Oh, changed my mind,' and now the spouse is accompanying." And I remember I was on a panel, it was a couple years after express entry was launched. This still existed. I, I remember the IRCC officer after our panel, I said, "John, you guys know that this is what's happening, right?"
And he said, "Yeah, we know it's a loophole. We'll probably look at closing it after." I was like, "All right. Well, I'm gonna keep using it until you tell me otherwise." And then very soon afterwards, they laid out the policy for the A11.2 completeness check. In particular, the changes that occur from being issued an ITA or the information that was in your original profile, and then what you list in the, the EAPR after you get your ITA.
In certain [00:06:00] circumstances, you can make changes, and in others it can cause you to get your application rejected. And so what they did was they said, "Okay, now if you list your spouse as non-accompanying, and then you list them, you try to list them as accompanying before you complete landing, then we are going to reassess everything.
And if your score, your CRS score, is now below the round of invitation level in which you were drawn, we are going to refuse your application." So I just could never-- I just, I didn't understand this 'cause I, there was no rationale provided, and we've been at this now for over 10 years, Alicia, and it has had massive impacts on families.
And, and like we talked about, it's not just whether or not you list your spouse as non-accompanying. Many spouses are here, and so what do you do? Do you send them home? So these are all the factors we're gonna talk about in, in this episode. But let's take a quick look at some practical examples of what this really means [00:07:00] for people.
Now, obviously, if it's a single and then one person has a spouse, we know they've got an advantage. But it's interesting, Alicia, to look at how this plays out with two examples, and we'll use for our first one here how this spousal penalty actually applies. But two couples. So the first one we'll start with is Priya and Daniel.
I'll break them down, and then you can talk about May and Jian. And so basically, Priya is the principal applicant. She's 31, software developer, Canadian master, CLB 9, two years Canadian experience. She's really strong on the single scale. Okay? So like we can see. But she has a spouse, Daniel. He's a chef that's back home, so he's non-accompanying.
He just has high school. His English is a CLB 5, and he doesn't have any Canadian work experience. So when you add Daniel into the mix, that's pretty much a 40-point swing. She's, Priya's gonna have 40 [00:08:00] less points, and bringing the man that she loves to Canada, at least including him in her application at the beginning, can probably mean the difference in getting an ITA or not getting an ITA.
So let's take a look at our other example. So the other example is May and Jian. And so May has got very similar statistics to Priya. So '31 software developer, Canadian master's degree, CLB level nine, two years Canadian experience, a solid candidate. But May's gonna marry Jian, and Jian's got a Canadian master's, a CLB nine in English, two years of Canadian experience, and excellent.
Now we have a very good score because there's not gonna be that spousal penalty. And just to add to what you said, Mark, it's not only the wedding ring, right? It's not just the ring on the finger. What often happens to people is that they live together while they're in Canada, and sometimes they meet that one-year continuous common-law [00:09:00] cohabitation definition, and that time point can change depending on their move-in date.
So they may have already had a profile, and they may need to update their profile. And for listeners out there who have been following our podcast, go back and listen to the podcast that Mark and I did about accompanying and unaccompanying spouses and express entry, because just like Mark was saying, there's a whole bunch of potential fraud but also misrepresentation if you fail to declare somebody who has now reached the definition of a common-law spouse.
So be careful of that 'cause it's legal marriage and it's Canadian definition, 12 months continuous cohab in a conjugal relationship. So remember, you might all of a sudden find yourself defined as a common-law partner. Yeah. Very good point, Alicia. So what you have to understand that it's not that necessarily that you have a spouse, it's really your spouse's human capital.
So as we s- as Alicia alluded to, and as we talked about with May and [00:10:00] Jian, if your spouse has got the same human capital you do, then there's no damage, there's no harm. But when we look at Priya and Daniel, it's a different story. It literally makes a difference between that family being able to come to Canada or not, or at least being -- And if they do it, if Priya does want to include Daniel so that they're not separated for a long period of time, even though Daniel right now is in a situation where he's a chef working back home, processing times for a spousal sponsorship can be a very long time.
And as a per- as a permanent resident, if you decide to list your spouse as non-accompanying, so Priya says, "Okay, Daniel, look, we're hooped here. We're-- I'm not getting an ITA unless we list you as non-accompanying," 'cause there's a 40-point swing, and that's a big deal. Then what it means is Priya is gonna have to then get her permanent residence and then sponsor Daniel after.
And as a permanent resident, you can't just go back home and live with Daniel while the application's being processed. You actually have to stay in Canada. It's only Canadian citizens who can benefit from that. And so two individual applicants, once again, that [00:11:00] have the same background, same qualifications, same human capital, but one spouse doesn't have human capital as competitive as the other, and it makes all the difference in the world.
So- The grid doesn't reward you for being a strong candidate necessarily. If you've got- if you're in a spousal relationship, it rewards you for having a spouse with equal credentials. So you take examples, a professional, maybe the spouse is a caregiver, right? The engineer, the spouse is a tradesperson with- without IELTS, maybe they don't speak English.
Or a doctor even, and the spouse is someone who paused a career to raise children while the doctor was going through getting their credentials, which is also very common. And they, in, in the, some of the, the reports that they've issued and the information the government has relied on recently, it's been pretty clear that they are now recognizing what we've known for ourselves since the very day that Express Entry was launched, that in not some cases, but many [00:12:00] cases, this, the fact that they have a spouse reduces the candidate's score, and the unintended consequence basically affects the decisions that this family is gonna have to make, and that's the hard part So let's take a look actually what the data says, at least the data that IRCC appears to be relying upon.
So finally, IRCC is doing some longitudinal studies. They are looking backwards in time. Specifically, they've been doing a few studies in 2020 that sometimes go all the way back to a 2005 cohort, but this one's based specifically on the 2015, 2016 cohorts. And again, this is old, right? This is pre-pandemic, but it gives the gist.
It gives the idea of if you have a candidate, so what are the factors that are going to end up in higher economic outcomes at the end of the day? Because after all, express entry is an economic pathway to PR. Well, if you have the prior Canadian temporary residence, so the [00:13:00] principal applicant was here working in Canada and earning money, then that has a positive effect.
After landing, it's found that, oh, okay, that has a positive economic indication. If the principal applicant has strong first language, so majority language in the place where they are in Canada, then that is going to also have a positive effect. What about the principal applicant's spouse's education, language, or experience?
It had a neutral effect, right? There was no drawing down or reduction of the principal applicant's ability to earn income because of their spouse's education, language, and whether that spouse had Canadian high-skilled work experience. So thankfully, we have some data that says this spousal grid is really a penalty that is not justified based on the economic outcomes.
Well, Alicia, I have been thinking a lot about this just in the context of my own family, because if I was to go back [00:14:00] into the examples we have here, the professional, the d- engineer, the doctor, well, my spouse did make a decision to, to pause her career and to stay at home and raise our kids. And I look at what that has done for our family, just from a social standpoint.
Having mom at home when our kids were growing up was a huge blessing for them. The stability, she was there all the time for them, and, and it really affected their growth and who they are. It's, it's been a huge blessing to our family. But then I look, okay, let's look at the economics of this. Hmm. So she has allowed me to go to law school because of her staying home and supporting, and the kids.
She supported me through all of my education to get my degree, to be able to practice the law, even getting my professional career started that just obscene hours that I had to spend building my practice. And now we're at a stage where, where our income is enough to support our family. But then I just met with my accountant yesterday, and I [00:15:00] look at-- There was a time when I could income split with my wife in Canada, Alicia, and she's a shareholder in my professional corporation.
She works, she works in my practice, and the reality is For years when she was, just when she was busy with the kids, chasing them all over the place, she didn't work in my practice, but I was still able to income split with her. And when you have two spouses that are both working, you actually... I would love to have an accountant on here.
But if we, if both collectively earn the same amount of money collectively, let's say, let's say, let's say o- w- the principal, uh, professional earns $100,000 a year, and then there's... and their spouse is at home, versus a couple where both earn $50,000 a year, that adds up to 100 gross. I think, and maybe I shouldn't be saying this, but I- it sure seems like the individual who has a single income is paying more tax than the individuals that are both working.
And maybe I'm wrong, I don't know. But [00:16:00] I'll tell you, when I met with my accountant the other day, it sure seems that way. And, yeah, it's just been quite interesting to see how this plays out. So from, even from an economic standpoint, as far as I'm concerned, if that's the factor they're going with, I think they just have had it wrong for so long with this, for so long.
All right, well, that's my own kind of thought that's unsubstantiated by anything other than my own anecdotal experience. But hey, this is the Canadian Immigration Podcast, and I'm the host, and I can pretty much say whatever I want, I guess, so. All right. So back to the data anyways, you were saying, Alicia.
So back to the data. We know that the re- research shows, okay, the spouse, even if the spouse is less educated, has lower language scores, and does not have that Canadian high-skilled work experience, it doesn't have the effect of pulling down the principal applicant's economic potential after landing, and that's really what they're looking at- Yeah, which makes perfect sense
because of a variety of factors. Yeah. Yeah. It's not as [00:17:00] though the spouse that's not as educated or doesn't have the Canadian high-skilled work experience, it, it's not as though they're actually going to pull down the score. Between the two of them, the couple's making it work so that they can be economically successful, and if that means one person's the primary income earner and the other one's not, then that's a workable solution.
It's also a workable solution to have a situation like we had with both spouses who were relatively equivalent. And so- Mm-hmm ... hopefully now they are going to get rid of these spousal grid penalty points basically or- Treat everyone equal. Yeah. Yeah. It's not as though it's going to be a bonus in points.
It's that they're gonna- Mm ... wipe out the grid that was the reduction in the principal applicant's points if the spouse, the accompanying spouse, had lower human capital. Yes. Yeah, so basically what it's saying is to score everyone on their own merits, right? So currently, just to recap for everyone, the [00:18:00] spousal grid, there's up to 40 points inside the core human capital factors that are redistributed from the applicant to the spouse, and what they're proposing is that grid just be removed.
So no spousal grid, singular, married, common law. Your score basically reflects you as the principal applicant and only you, which in my mind should have been how it was structured right from the beginning. So if we look at this and what this system would fix, it would fix the situation for, for Priya. M- May really it's not an issue because her spouse already had enough points, but there's no hidden penalty for who you're in a relationship with.
No nudge to say leave your spouse off the application, or in some cases, families make the very tough decision to say, "Well, hey, IRCC is stating that we're misrepresenting things if my spouse is with me in Canada, and I list them as non-accompanying on my express entry application, so you're gonna have to go home."
Right? [00:19:00] And then explain why we're not, we're not including the spouse in the application, which in and of itself is somewhat of a fiction because then the government comes back and says if you s- if you say, "Well, I'm listing my spouse as non-accompanying so I get more CRS points," then I've seen them come back and say, "Well, that's misrepresentation."
And it just becomes a mucky quagmire. So where do we stand, Alicia? At least where do you stand, and then I'll offer mine, which I'm sure we're both aligned. Yeah, I think everybody's doing a little happy dance that we're removing that spousal grid. So I don't think anybody is going to be sad to see it go because I just don't think the evidence supports it.
I don't think it's, it's been unhealthy for a lot of people. It's been a big problem for a lot of couples for a number of years. So excellent. I think we all agree, let's get rid of that spousal grid We do agree, yes, it's based on merit. It's based on high human capital, so let's focus on the high human capital, [00:20:00] and that is where the principal applicant should continue to focus.
And it's also pro-family, right? One of the objectives in the Immigration Act is reunification of family. And yes, this is an economic application, and there's different social or economic objectives arguably for an economic PR, but why would you do that and penalize family at the same time? Just make-- realize that spouses do act as a unit, right?
That economic decisions and career decisions and taking care of kids decisions are done as a unit, and so there is definite benefit and support for people who are able to immigrate as a family. So what we really are worried about though is how, when, right? So I think it's pretty clear that this is not something that's gonna take a long time.
It's not something they really need to do any regulatory changes to implement. No. But it could disappear [00:21:00] tomorrow. Yeah. What's interesting, when I look at the removal of this, one of the biggest challenges I think would be reworking the actual portal, and when you're trying to-- Because it's all designed to calculate points, so they would have to actually revise the questions that are being asked, how they've set up their algorithms to generate the points when someone completes their profile.
That's the biggest thing. They're gonna have to work that in the background. And like you said, Alicia, I- they could just, on the comprehensive ranking system side, just make a decision, okay, we're gonna just remove it and just treat everybody as an individual applicant, and maybe it's just a little switch that they can turn off that prevents people from going down two branches of assessment.
Maybe it's as simple as that, which I would hope it would be. But in the end, it's just about communication and messaging. People are making decisions like we talked about. Of a families, th- they're sitting at 500 and let's say six points [00:22:00] with this, an accompanying spouse. We know recently the CECs have come down I think as low as 507 in recent times.
And so if a family's sitting at 506 and by having the spouse go home they can't max anything else out, the spouse isn't able to improve their English or whatever it might be. We're trying to-- I'm trying to create an example here that works, but for whatever reason, they're just not quite able to hit that threshold, and now they're seeing the scores up in the 515s or such, and they're thinking, "Man, if my spouse goes home, even though we've been here for four years together, then maybe we're in a position where I could get an invitation to apply."
Well, all we'd ask IRCC is just that you, you message this properly so that people know with as much advanced planning as possible that these changes, when they might come, provide clear guidance on the very first day that this happens, and just provide whatever you can to protect those who planned around it, because you created this situation.
And it would just be really hard to see [00:23:00] people list a spouse as non-accompanying, and I would sure hope, Alicia, that people who had done that and then made the decision to then change and add their spouse once these rules changed, that they weren't somehow gonna be targeted or prejudiced because of this change that they're now making as being, you must have misrepresented in the beginning if now one day later you change your mind, right?
And we've seen all kinds of crazy things, so I would hope they'd have a level of humanity because it is pro-family, right? It's something that the whole Our Immigration and Refugee Protection Act, it's one of the founding principles of it, is the reunification of families. So it's so ironic that this one literally separ- caused the separation of families.
All right. Let's hit just a few little tips for this whole issue of do I list my spouse as non-accompanying or not? Well, our world right now, understand it's still the world. Nothing has changed. But the grid, this ugly spousal grid could vanish basically on any draw. [00:24:00] So do we really tell one spouse to go home just to squeeze out a few points?
And I keep using the example, Alicia, of families that have been here for 20, not 20 years, but have been here for a long time, four or five years. It's so disruptive. And th- let's say you have your children here with you And this was literally the conversation I had with my client just a couple weeks ago because she's running out on her post-grad work permit.
So she had come, she did the studies. Her husband at the time was able to come as a open spousal work permit holder. She's been working, he's been working. They've been struggling to try to meet their points, and they were sitting at 516, right? So they were right on the cusp at that 516, but the rubber's hitting the road because her work permit's imminently expiring, and so she needed to get an ITA.
And there weren't draws for a long time, right? There was that little desert of draws between May and June, and so we had really tough decisions to, and [00:25:00] discussions to have about does-- when this open spousal work permit expires, does my spouse go home? Do I try to go back to school and pay international tuition fees again, knowing that I'm not gonna get another PGWP, right?
To- is that the plan just so that I can maybe get an invitation to apply with the spouse unaccompanying? And I just said to them, "Look, like these spousal grid points could disappear at any point. Maybe hang in there just a little bit longer. See if you get an ITA under the 516." And oh my goodness, thank goodness there was a, an invitation to apply exactly at 516 because of the tie-breaking rule she got an invitation to apply.
But they were literally at the point of trying to decide whether to send him back home. Ah, I agree so much, Alicia. It is such a brutal thing, and when you say, "Let's wait just a little bit longer," then the clients often say, "Well, how long would that be?" And if it's 12 draws away, let's say six months down the road, well, if you have not-- if you continue to list your [00:26:00] spouse as non-accompanying or you make the decision to send them home, you're competitive right away.
That's a, from a CRS standpoint, like you're not gonna be wrong doing that. If your only factor, if your only consideration is my CRS score, then in every case, if your spouse is drawing your score down and causing you to become less competitive, then them returning home genuinely and listing them as non-accompanying is always going to be a better option from the standpoint of the comprehensive ranking system.
But the reality is those 12 draws, if you choose not to do that and you're waiting it out, there's potentially 12 draws that have gone that you could have maybe been drawn but you missed the cut. And with every family, there are other factors than just the comprehensive ranking system, and it has to be done so, so carefully, and it comes down to risk, Alicia.
Yeah. I thought- Risk tolerance maybe Risk tolerance and really understanding what the timelines [00:27:00] are and whether there's kids, right? Whether those kids are gonna stay in Canada or go back home with one of the parents. When is the principal applicant's work permit gonna expire? Is there an option to have an employer do an LMIA, or are they eligible under a mobilité Francophone or one of the other work permit, closed work permits that are LMIA-exempt under a free trade agreement?
But do that analysis carefully because if you do decide to send one spouse home and list them as unaccompanied and try to take advantage of the fact that right now might be the best time because also the principal applicant, remember, is going to lose points when they hit their birthday, right? So that age calculation was something that we had to factor in.
Understand, just like Mark said at the beginning, that if that spouse does go home and the principal applicant gets their express entry invitation to apply, they submit their EAPR, let's say they get landed in about seven months, then they're-- they need to then [00:28:00] submit a spousal sponsorship application.
And maybe IRCC will let that spouse overseas come back as a visitor, maybe they won't, and maybe those spouses are going to be having to live separate and apart for possibly upwards of a year, closer to two years, depending on processing times. And that is not a decision to take lightly. So make sure that you've done the calculus with your spouse and that everybody understands the risks and benefits.
Yeah. So if we take a shift here, let's talk about the game plan like we always do every episode. So five move- five moves for couples that are trying to decide what to do right now. And understand this is not specific legal advice, you guys. These are just general things that Alicia and I recommend all of our clients do as they're trying to sort out these difficult decisions.
So number one, run your score both ways. Okay, really understand how many points am I gonna get with my spouse and how many am I going to be get without. So in other words, if this [00:29:00] grid was to be dropped, fall away, where would I stand and how close am I? And if the-- it does fall away and I have a legitimate chance, then that's first thing that you do is run your score both ways.
And this is where making that difficult decision or having one spouse go home, if you're gonna choose that, then it might not be necessary, but it all depends on when IRCC is going to implement the changes to the spousal grid or remove the spousal grid from the base CRS system. And so what we did with the family that I have been helping is we had a very careful points analysis, and we had a breakdown, and we had all the moving factors of age and how many years of Canadian experience and when do you hit that date, and when would the spouse have hit another year of Canadian high-skilled work experience.
Is it possible given the parameters of the existing work permits? And then we said, okay, we know that the tie-breaking rule is gonna give [00:30:00] you priority if you can keep that profile up until this month, and you still have a chance on your work permit up until this month, so when are you gonna pull the chute?
When's the last day that you're gonna keep that profile in there? And that's the analysis we did. Yeah. That's really smart, Alicia. And one of-- Like you said, one of the biggest questions is how long can we remai- remain here on temporary status? How desperate are we to get the ITA now versus in six months or a year?
Do we have a work permit that's valid for two years? So we've got time that we can wait it out, which we, I think you and I are both pretty confident that within the next two years, we're pretty sure that the spousal grid is gonna be dropped. But anything, any shorter periods of time when time's running out, it's a definite factor that, that couples have to look at.
Okay. Then number three, strengthen what survives. So remember, if you have an ability, even for the principal applicant to continue increasing your language scores or you're continuing to work in Canada, whatever you need to do, make sure [00:31:00] that those remain safe, that you can continue to prove those things.
And I would also add, if there is room, if there is possibility to have a spouse get some additional education or to increase their language scores or change that, that low-skill position to a skilled, a tier three or higher, we would always encourage our clients to do everything they can to keep inching those points up and up.
And maybe one thing just to note here, Mark, is that Be careful because the grid does not actually give language points to the spouse's second language. I've had some people say, "Is it possible for my spouse to learn French?" Learn French. Well, yeah, maybe as a principal applicant, but remember- Mm-hmm ... those spousal grid points don't actually reward a second language.
It doesn't score a second language for the spouse. So- Yeah ... keep that in mind. And I guess I'd add too to that, what are the advantages of doing that? Well, if status is running out, [00:32:00] and if your spouse is able to hit an NCLC level five, they could then potentially apply for a francophone mobilité work permit.
And if the pr- if that spouse's work with that new employer is in one of the eligibility ranges for then you getting a spousal open work permit yourself and flipping, that then buys you more time, or you can get more Canadian work experience or whatever it might be, then maybe that might be something that you consider.
But yeah, you're not gonna get extra points as a second language for a spouse, just like you're not getting extra points for foreign work experience for a spouse, just the way the rules are. And so we're gonna watch this carefully. We're going to see when this ministerial instruction happens or when IRCC makes an announcement about the express entry reforms and getting rid of the spousal grid.
Maybe they will do it when they wipe out all the bonus points, right? So they might take away all the bonus points and change the spousal grid so that one hand giveth and the other hand taketh kind of thing. We'll see what happens, but stay [00:33:00] tuned because it, it makes a big difference for people in real life.
It sure does. All right. So on the chopping block, that's episode 10 that's on its way. French points, siblings in Canada, the study bonus, and although the spousal is on the chopping block, it's not like that chopping block is a penalty in any way. It's only gonna advant- advantage people. So three more additional factors that the government wants to remove or shrink, because we still have to see what happens with the study bonus, but that's exactly what we sh- we will be covering in our next episode 10.
As always, if you guys have any questions or you're looking for a little help or assistance, you can always just go to our website, holthelaw.com/consultation, and you can connect with Alicia or myself through a paid consult process. All right, Alicia, thanks for joining me here, episode nine. We're plowing our way through.
15 is the total episodes that we have scheduled, and, uh, nine will drop next. All right. Thanks so much everyone, [00:34:00] and take care. Thank you for listening to the Canadian Immigration Podcast, your trusted source for information on Canadian immigration law, policy, and practice. If you would like to book a legal consultation, please visit www.holthelaw.com. You can also find lots more helpful information on our Canadian Immigration Institute YouTube channel, where you can join Mark on one of his many Canadian Immigration live Q&As.
See you soon, and all the best as you navigate this crazy world we call Canadian immigration.
