Who is family? A look at Canadian and U.S. immigration law on the definition of qualifying relatives.

• Author: Halper, Douglas

In 1979, the American disco group, Sister Sledge, sang, "We Are Family. I got all my sisters with me." By contrast, under both Canadian and U.S. immigration law, determining who is a family member that can achieve an immigration status based upon a family relationship can prove challenging. The immigration law in both countries has evolved significantly in this respect, and also been the subject of shifting interpretations by the relevant federal immigration agencies. This article highlights some of the major factors with particular focus on Canadian family immigration law.

Who counts as "family" for immigration to Canada?

Family reunification is one of the main objectives of Canadian immigration policy. This foundational principle:

"to see that families are reunited in Canada", is enshrined in law as one of the stated purposes of Canada's Immigration and Refugee Protection Act (IRPA). Nevertheless, the list of relatives who are included as members of the "family class" for immigration to Canada has fluctuated with societal norms and government economic policy.

Nowadays Canadian citizens and permanent residents (PRs) can sponsor the immigration of their spouse (husband or wife), common-law partner, conjugal partner, dependent children and parents or grandparents to Canada. This has not always been the case. When IRPA became law on June 28, 2002, the family class was formally expanded to include common-law and conjugal partners, including partners of the same sex. In the decade prior, Canada processed applications from same-sex and common-law partners of Canadians and PRs as economic, rather than family, class immigrants on humanitarian and compassionate grounds.

A common-law relationship is recognized by Canadian law once a couple has cohabited in a marriage-like relationship for at least one year. The conjugal partner immigration category was created in recognition that the mandatory cohabitation requirement is impossible in some situations, especially for same-sex couples or for couples of different nationalities, and allows sponsors to support the immigration of a partner living outside of Canada with whom the sponsor has been in a serious committed relationship for at least a year. Following the introduction of IRPA in 2002 Canada became a nation of choice for many bi-national same-sex couples.

Family class immigration applications from spouses, common-law or conjugal partners and dependent children are given the highest priority, ahead...