3.8 Genuine Marriages Conducted by Proxy, Telephone, Fax, Internet or Similar Means
In some situations, the circumstances surrounding marriages conducted by proxy, telephone, fax, internet or similar means might be genuine. Therefore, the authorities have provided certain options for mitigating the impact of the new provisions on individuals in these kind of marriages.
3.8.1 The Processing of Common-law Partners
Individuals would typically apply under any of the immigration streams. The officer would continue processing the application with the relationship status category as common-law partner (instead of spouse) if the officer determines that the individual:
- Meets the definition of common-law partner and,
- Participated in a marriage conducted by proxy, telephone, fax, internet or similar means, where one or both parties was not physically present
In this scenario, the officer would need to assess whether the applicant meets the definition of common-law partner. To ascertain this, the officer would need to request the applicant to submit:
- An IMM 5409 (Statutory Declaration of Common-Law Union) and,
- Any other relevant documentation
These documents would help support the existence of a common-law relationship.
In some situations, officers might come across visa-exempt individuals at Ports of Entry (POEs), who are applying for temporary resident status, which is dependent on their relationships with their spouses. In some cases, the Border Services Officers (BSOs) of the Canada Border Services Agency (CBSA) might determine that the individual participated in a marriage conducted by proxy, telephone, fax, internet or similar means.
In this scenario, the Border Services Officers (BSOs) would need to determine whether these individuals meet the definition of common-law partner. In some cases, it is possible that the applicant might not have the proof of common-law relationship with them at the Port of Entry (POE). In these situations, the Border Services Officers (BSOs) have the authority to issue a Temporary Resident Permit (TRP).
3.8.2 Humanitarian and Compassionate (H&C) Considerations
The authorities have provided Humanitarian and Compassionate (H&C) considerations to be flexible discretionary tools. These considerations typically enable officers to make exceptions in compelling cases with a statutory obligation, for considering the best interests of any children affected.
Therefore, officers have the authority to use the Humanitarian and Compassionate (H&C) provisions specified under paragraphs 25 and 25.1 (1) of the Immigration and Refugee Protection Act (IRPA). These provisions enable officers to accommodate exceptional cases. They also permit officers to facilitate family unity in all immigration streams. As such, these provisions offer immense flexibility for responding to individuals in vulnerable situations.
However, officers would need to remain alert and sensitive to the Best Interests of the Child (BIOC). This is especially so when they carry out a Humanitarian and Compassionate (H&C) assessment through identification and examination of all factors related to the life of the child.
On occasions, officers might come across exceptional cases where there might be sufficiently compelling circumstances for warranting an exemption. For instance, if an individual could not travel to attend the marriage ceremony because of medical reasons and has lived with the spouse for less than one year, the individual would not be able to meet the definition of a common-law partner.
It is worth noting that officers might need to conduct an interview with the applicant for assessing Humanitarian and Compassionate (H&C) considerations.
Source: Citizenship and Immigration
