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Chapter Five Spouses, Common-Law Partners and Conjugal Partners

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Chapter Five Spouses, Common-Law Partners and Conjugal Partners Chapter Five Spouses, Common-Law Partners and Conjugal Partners Introduction The Immigration and Refugee Protection Act (“IRPA”)1 and the Immigration and Refugee Protection Regulations (“IRP Regulations”)2 expanded the family class to include common-law partners and conjugal partners as well as spouses.3 In addition, common-law partners are family members of members of the family class.4 These changes, brought about by the implementation of the IRPA in 2002, are part of a legislative framework which sets out, for the first time, specific rules concerning the sponsorship of common-law partners and conjugal partners of the same or opposite sex as the sponsor.5 Modifications were also brought to the definition of “marriage.”6 The IRP Regulations now require that a foreign marriage be valid under Canadian law. Furthermore, contrary to the former Immigration Regulations, 1978, the IRPA and IRP Regulations do not define “spouse.” The discussion that follows addresses the definitions of “common-law partner,” “conjugal partner,” and “marriage.” It also deals with excluded and bad faith relationships which disqualify 1 S.C. 2001, c. 27, entered into force on June 28, 2002 as amended. 2 SOR/202-227, June 11, 2002 as amended. 3 S. 12(1) of the IRPA and s. 116 and s. 117(1)(a) of the Immigration and Refugee Protection Regulations (“IRP Regulations”). “Common-law partner” is defined at s. 1(1) of the IRP Regulations as: “…in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year.” “Conjugal partner” is defined at s. 2 of the IRP Regulations as: “…in relation to a sponsor, a foreign national residing outside Canada who is in a conjugal relationship with the sponsor and has been in that relationship for a period of at least one year.” 4 S. 1(3)(a) of the IRP Regulations states: For the purposes of the Act, other than s. 12 and paragraph 38(2)(d), and these Regulations, “family member” in respect of a person means (a) the spouse or common-law partner of the person; 5 Prior to the coming into force of the IRPA, common-law partners of Canadian citizens or permanent residents who wished to apply for permanent resident status to reunite with their partner were considered on humanitarian and compassionate grounds under s. 114(2) of the former Immigration Act, R.S.C. 1985, c. I-2.. 6 S. 2 of the IRP Regulations defines “marriage” as: …in respect of a marriage that took place outside Canada, means a marriage that is valid both under the laws of the jurisdiction where it took place and under Canadian law. Sponsorship Appeals 1 Legal Services January 1, 2008 Spouses, Common-law Partners & Conjugal Partners - Ch. 5 a foreign national from being considered a spouse, common-law partner, conjugal partner or member of the family class. Background to the Legislative Changes concerning Common-law Partners and Conjugal Partners Under the IRPA, common-law partners have a status equal to that of spouses. The relevant provisions of the IRPA and the IRP Regulations are intended to grant common-law partners the same benefits and obligations granted to spouses.7 The provisions of the IRPA as they relate to common-law partners take into account case law such as Miron v. Trudel8 and M. v. H.9 in which the Supreme Court found that legislative provisions excluding same and opposite sex common-law partners from benefits afforded to married partners were discriminatory and violated the right to equality guaranteed by s. 15 of the Charter of Rights and Freedoms.10 In addition, the provisions of the IRPA keep in step with the Modernization of Benefits and Obligations Act,11 which amended other federal acts following the decision in M. v. H.12 in order to extend to same-sex partners the benefits and obligations afforded married and opposite-sex partners. Conjugal partners have a different status than that of spouses and common-law partners under the IRPA. The definition of “conjugal partner” is found in the IRP Regulations. The recognition of conjugal partners under the IRPA was meant to acknowledge the particular circumstances of the sponsorship context that are generally not present where partners reside in the same country. Hence, “conjugal partner” refers only to a person in a conjugal relationship with the sponsor for a period of at least one year. Whereas spouses and common-law partners are eligible for permanent residence by virtue of their relationship with the sponsor (qualifying them as members of the family class) or by virtue of their relationship with a member of the family class (qualifying them as a family members of a member of the family class), conjugal partners are only eligible for permanent residence by virtue of their relationship with the sponsor (qualifying them as a member of the family class) and not with any other person. A conjugal partner is therefore not a family member of a member of the family class.13 7 See to this effect the comments concerning the changes to the family class in the Regulatory Impact and Analysis Statement (“RIAS”) published with the IRP Regulations. 8 [1995] 2 S.C.R. 418. 9 [1999] 2 S.C.R. 3. 10 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 11 S.C. 2000, c.12, as amended. The definition of “common-law partner” in the Modernization of Benefits and Obligations Act is essentially the same as that in the IRP Regulations. It states: "common-law partner," in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year.” 12 Supra, footnote 9. See to this effect the comments on the changes to the family class in the RIAS. 13 See the definition of “conjugal partner” at s. 2 of the IRP Regulations as well as s. 117(1)(a) and the definition of “family member” at s. 1(3) of the IRP Regulations. Sponsorship Appeals 2 Legal Services January 1, 2008 Spouses, Common-law Partners & Conjugal Partners - Ch. 5 Relevant Legislative Provisions The relevant provisions are: • Section 11(1) of the IRPA provides that before entering Canada, a foreign national must apply for a visa which shall be issued if the officer is satisfied that the foreign national is not inadmissible and meets the requirement of the IRPA; • Section 6 of the IRP Regulations indicates that a foreign national may not enter and remain in Canada on a permanent basis without first obtaining a permanent resident visa; • Section 70 of the IRP Regulations sets out the requirements that must be met for a permanent resident visa to be issued to a member of an eligible class and to the accompanying family member of such a member; • Section 12(1) of the IRPA provides that a foreign national may be selected as a member of the family class on the basis of their relationship with a Canadian citizen or a permanent resident as a spouse, a common-law partner or other prescribed family member;14 • Section 13(1) of the IRPA provides that a Canadian citizen or permanent resident may sponsor a member of the family class; • Section 116 of the IRP Regulations prescribes the family class as a class of persons that may become permanent residents; • Section 117(1)(a) of the IRP Regulations indicates that a foreign national who is the sponsor’s spouse, common-law partner or conjugal partner is a member of the family class; • Sections 1(1) and 1(2) of the IRP Regulations set out respectively the definition of “common-law partner” and the exception to the requirement of cohabitation; • Section 2 of the IRP Regulations provides the definition for “marriage” and “conjugal partner;” • Section 1(3) of the IRP Regulations defines “family member,” other than for the purposes of s. 12 and s. 38(2)(d) of the IRPA; • Sections 5(a) and 5(b) of the IRP Regulations list circumstances in which a foreign national is not considered a “spouse” or “common-law partner;” • Sections 117(9)(a) to (d) of the IRP Regulations list circumstances in which a spouse, common-law partner or conjugal partner are not considered members of the family class. Sections 117(10) and (11), read together, create an exception to the exclusionary provision of section 117(9)(d). • Section 4 of the IRP Regulations indicates that a foreign national shall not be considered a spouse, common-law partner or conjugal partner if the marriage, common-law partnership or conjugal partnership is a bad faith relationship – that is, 14 The expression “prescribed family member” in s. 12 of the IRPA appears to refer to the members of the family class that are prescribed in s. 117(1) of the IRP Regulations. The definition of “family member” at s. 1(3) of the IRP Regulations specifically states that it is not applicable to s. 12 of the IRPA. Sponsorship Appeals 3 Legal Services January 1, 2008 Spouses, Common-law Partners & Conjugal Partners - Ch. 5 the relationship is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the IRPA or IRP Regulations; • Section 4.1 of the IRP Regulations indicates that a foreign national shall not be considered a spouse, common-law partner or conjugal partner of a person if the foreign national has begun a new conjugal relationship with that person after a previous marriage, common-law partnership or conjugal relationship with that person was dissolved primarily so that the foreign national, another foreign national or the sponsor could acquire any status or privilege under the Act.
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