Spouses and Partners

• Author: Michael Battista/Adrienne Smith
• Pages: 37-68

37

3

Spouses and

Partners

I. Introduction ............................................. 38

II. Definitions .............................................. 38

III. Regime ................................................. 40

A. Family Class ........................................ 40

B. Spouse or Common Law Partner in Canada Class ......... 41

C. Approval in Principle: Family Ties and the GenuinenessTest ... 42

D. Secondary Processing Stage: Examination Requirements ... 43

E. Biometrics ......................................... 45

F. Interviews and Conferral of Permanent Resident Status ..... 46

G. Processing Times ................................... 46

H. Suspension ........................................ 47

I. Spousal Interviews .................................. 47

IV. Issues .................................................. 49

A. Conjugality and Conjugal Partner Relationships . . . . . . . . . . . 49

B. Legal Validity of Marriage and Capacity . . . . . . . . . . . . . . . . . . 52

C. Underage Marriage .................................. 54

D. Prohibited Degrees of Consanguinity .................... 56

E. Assessing Genuine Relationships ...................... 57

F. Marriage by Proxy ................................... 61

G. Polygamous Marriages ............................... 63

H. Bona Fides and Evidentiary Challenges for LGBTQ+

IndividualsandFamilies .............................. 64

I. Effects of Separation and Divorce ...................... 65

J. Legality of Divorces in Foreign Jurisdictions .............. 67

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38 Part II Current Avenues for FamilyReunification

I. Introduction

While non-traditional family relationships have gradually been recognized in Canad-

ian immigration law, permanent family reunification remains reserved for the clos-

est family members. Moreover, the processing of applications within the family class

clearly prioritizes spousal and dependent child relationships. According to a 2014

evaluation report produced by Citizenship and Immigration Canada (CIC), spouses,

partners, and children are considered priority classes and the department’s internal

policy is to expedite the processing of these cases.1

This chapter will explore the types of spouse and partner relationships that qualify

for permanent family reunification and the various barriers that sponsors face when

sponsoring their spouse, common law partner, or conjugal partner.

II. Definitions

Below are key terms relevant to spouses and partners.

Marriage: The Immigration and Refugee Protection Regulations stipulate that if a

marriage took place outside Canada, it must be legally valid under the law of that

country and legally valid in Canada.2 There are no further qualifications to this rela-

tionship, other than the fact that the Canadian or permanent resident sponsor must

be at least 18 years old.3

The term “spouse” is not defined under the IRPR or the Immigration and Refugee

Protection Act,4 despite being used throughout both of them. However, the Immigra-

tion, Refugees and Citizenship Canada (IRCC) operational instructions and guide-

lines require a marriage certificate as evidence of a spousal relationship.5 As such,

marriage leads to the status of spouse.

Common law partner relationship: A common law partner is defined under

the IRPR as “an individual who is cohabiting with the person in a conjugal relation-

ship, having so cohabited for a period of at least one year.”6 Neither the IRPA nor

1 CIC, Evaluation of the Family Reunification Program (Ottawa: CIC, March 2014) at 4, online

(pdf ): <https://www.canada.ca/content/dam/ircc/migration/ircc/english/pdf/pub/e4-2013

-frp.pdf> [Evaluation Report].

2 Immigration and Refugee Protection Regulations, SOR/2002-227, r 2, definition of “marriage”

[IRPR].

3 IRPR, r 130(1).

4 Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].

5 IRCC, “Assessing the Relationship Between Spouses or Common-Law Partners” (last modi-

fied 2 January 2019), online: Government of Canada <https://www.canada.ca/en/immigration

-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/

permanent-residence/non-economic-classes/family-class-determining-spouse/assessing

-relationship.html> [Assessing the Relationship].

6 IRPR, r 1(1), definition of “common-law partner.”

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Chapter 3 Spouses and Partners 39

the IRPR define “conjugal relationship”; however, Canadian courts, tribunals, and

IRCC decision-makers use a framework of “generally accepted characteristics” to

assess and define this marriage-like relationship.7 These characteristics include (but

are not limited to) cohabitation, economic interconnectedness, sexual intimacy, and

emotional interdependence. They will be examined more fully in Section IV.A below.

For further clarity, IRCC’s online processing instructions explain that a common

law partner is not legally married to their partner, can be the same or opposite sex, is

18 years of age or older, and “has been living with [the sponsor] for at least 12 consec-

utive months.”8 If there are interruptions to cohabitation, these must be temporary,

short, and due to family obligations or work-related travel.9

Cohabitation is not always required for common law partners. Under the IRPR,

r1(2), a person “who has been in a conjugal relationship with a person for at least one

year but is unable to cohabit with the person, due to persecution or any form of penal

control, shall be considered a common law partner of the person.”10 The concepts of

persecution and penal control are given a broad meaning in policy:

“Persecution” in this context refers to actions taken by a state or government to oppress

or punish, usually by law, persons in certain types of relationships, such as homosexual

ones. Persecution can also mean strong social sanctions whereby the culture and mores

of the country result in ostracism, loss of employment, inability to find shelter, or other

sanctions, for persons in common law opposite-sex or same-sex relationships, even if

such relationships are not technically illegal.

“Penal control” is any punitive restriction imposed by authorities on an individual

or group that does not apply to the general population. For example, in some foreign

jurisdictions, two persons in a homosexual relationship may be unable to live together

because it is illegal.11

A common law partner can choose to dissolve their relationship unilaterally.12 In

other words, a mutual understanding that a relationship is over is not necessary to end

this type of relationship.

7 Haer v Canada (Citizenship and Immigration), 2020 FC 530.

8 CIC, “For My Spousal Sponsorship Application, What Is a Common-Law Partner?” (last

modified 16 March 2021), online: Government of Canada <https://www.cic.gc.ca/english/

helpcentre/answer.asp ?qnum =346&top=14> [What Is a Common-Law Partner?].

9 Ibid.

10 IRPR, r 1(2).

11 IRCC, “The Conjugal Partnership Category in IRPA” (last modified 20 August 2019),

online: Government of Canada <https://www.canada.ca/en/immigration-refugees-citizenship/

corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/non

-economic-classes/family-class-determining-spouse/assessing-conjugal.html#inability

ToCohabit>.

12 What Is a Common-Law Partner?, supra note 8.

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