Sponsoring a Conjugal Partner to Canada

Individuals have options in terms of sponsoring their spouse, common-law or conjugal partner to Canada.

In terms of an inside Canada application, they are restricted to spousal or common-law partner. For an application made outside Canada, they can also sponsor a conjugal partner (a marriage-like relationship).

The family class was expanded to specifically include common-law and conjugal partners of the opposite and same sex in 2002-2003 (see edited Hansard, Number 009 (37^th Parliament, 3^rd Session).[1] The discussions before the Standing Committee on Citizenship and Immigration (April 3, 2001) are also illustrative of the intent of the legislators [2] Here’s an excerpt:

However, in recognition of the uniqueness of the immigration situation, we are going to make a somewhat different definition. This is because we know that in the immigration context, people often cannot cohabit, cannot live together, because they are separated because they are nationals of different countries. So with a Canadian, for example, who wishes to be reunited with his or her partner, the whole reason they're going through an immigration process is because their partner is living in another country. In recognition of the fact that it is often difficult for common-law partners to live together, in exceptional circumstances—or for reasons beyond the control of the two partners—as long as the individuals are in a conjugal relationship that has lasted for a year, we will recognize them as common-law partners for the purposes of immigration.

Some immigration officers (and hearing officers) seem to require the couple to demonstrate a "prohibition" to marriage or being able to live together for more than a year. This language is not found in the legislation. This was clearly not the intent of the legislators either which suggest that there be "reasons outside of their control". The attitude of officers is troubling -suffice it to say, different officers will have different opinions as to what constitutes a prohibition, "strong" reasons or "strong" impediment.

We have assisted on a number of conjugal applications. Sometimes we have utilized them for same sex partners (frequently this involves a country that doesn't recognize such relationships). Sometimes it's for other couples that can't legally marry (there has been, for example, an after the fact finding that the marriage is not valid). An applicant does not need to be divorced to apply under the conjugal partner class (but must be able to show that they have been separated for at least a year).

The conjugal class is for couples that are in a marriage-like relationship. The couple should be able to demonstrate most of the so called M. v. H. factors (see [1999] 2 S.C.R. 3). Here's what the Manual sets out:

 shared shelter (e.g., sleeping arrangements);
 sexual and personal behaviour (e.g., fidelity, commitment, feelings towards each other);
 services (e.g., conduct and habit with respect to the sharing of household chores)
 social activities (e.g., their attitude and conduct as a couple in the community and with their
families);
 economic support (e.g., financial arrangements, ownership of property);
 children (e.g., attitude and conduct concerning children)
 the societal perception of the two as a couple.

From the language used by the Supreme Court throughout M. v. H., it is clear that a conjugal relationship is one of some permanence, where individuals are interdependent – financially, socially, emotionally, and physically – where they share household and related responsibilities, and where they have made a serious commitment to one another. Based on this, the following characteristics should be present to some degree in all conjugal relationships, married and unmarried:

 mutual commitment to a shared life;
 exclusive – cannot be in more than one conjugal relationship at a time;
 intimate – commitment to sexual exclusivity;

 interdependent – physically, emotionally, financially, socially;

 permanent – long-term, genuine and continuing relationship;

 present themselves as a couple;

 regarded by others as a couple;

 caring for children (if there are children).

People who are dating or who are thinking about marrying or living together and establishing a common-law relationship are NOT yet in a conjugal relationship, nor are people who want to live together to “try out” their relationship.

Persons in a conjugal relationship have made a significant commitment to one another. A married couple makes the commitment publicly at a specific point in time via their marriage vows and ceremony, and the marriage certificate and registration is a record of that commitment. In a common-law or conjugal partner relationship, there is not necessarily a single point in time at which a commitment is made, and there is no one legal document attesting to the commitment.

Instead, there is the passage of time together, the building of intimacy and emotional ties and the accumulation of other types of evidence, such as naming one another as beneficiaries of insurance policies or estates, joint ownership of possessions, joint decision-making with consequences for one partner affecting the other, and financial support of one another (joint expenses or sharing of income, etc. When taken together, these facts indicate that the couple has come to a similar point as that of a married couple – there is significant commitment and mutual interdependence in a monogamous relationship of some permanence.