The issue of same sex marriages underwent an important development in Canada following the recent proclamation of the federal Civil Marriages Act. This legislation flows from a landmark December 2004 Supreme Court of Canada ruling upholding Parliament’s authority to legislate in this area. It extends the legal capacity for marriage to same sex couples in Canada. Canada thus becomes the fourth member of an exclusive group of countries (Netherlands, Belgium and Spain) that have legalized nation wide same sex marriages. This has had widespread effect in many areas including the field of immigration in Canada.

For immigration purposes, you are a spouse if you are married to your sponsor or the main applicant and your marriage is legally valid.

If you were married in Canada, your marriage is legally valid if you possess:

• A Certificate of Marriage issued by the province or territory where the marriage took place.

If you were married outside Canada, your marriage is legally valid if:

• It is valid under the law of the country where it took place and under Canadian law.
• It is a marriage performed in an embassy or consulate which complied with the law of the country where it took place, not the country of nationality of the embassy or consulate.

However, despite Canada’s seemingly progressive status, Canadian immigration authorities continue to apply a complex approach to same sex couples who have married when assessing their rights as a member of the family class or as an accompanying family member under the Canadian Immigration and Refugee Protection Act.

In effect, a same sex marriage which took place in Canada between a Canadian and a non Canadian will only be legally recognized for sponsorship purposes or to qualify as an accompanying dependent if the marriage took place in:

• Quebec (on or after March 19, 2004)
• Ontario (on or after June 10, 2003)
• British Columbia (on or after July 8, 2003)
• Yukon (on or after July 14, 2004)
• Manitoba (on or after September 16, 2004)
• Nova Scotia (on or after September 24, 2004)
• Saskatchewan (on or after November 5, 2004)
• Newfoundland (on or after December 21, 2004)
• New Brunswick (on or after July 4, 2005)
• All other provinces or territories (on or after July 20, 2005).

Canadian immigration authorities still consider all same sex marriages which took place outside Canada to be invalid. As a result, same sex spouses married outside of Canada are not considered spouses for immigration purposes.

What can a same-sex couple who married in any of the above-mentioned provinces before the above-mentioned dates, or who married outside Canada for example in Netherlands, Belgium, Spain or in certain states within the United States do in order to ensure that their partner will be able to accompany them as a dependent or be eligible to be sponsored as a member of the family class?

That couple may opt to apply as common-law partners. As a result, an officer would assess the common-law relationship between the couple for the purposes of a sponsorship application or to determine an applicant’s eligibility as a dependent family member

Common law relationships

A common law relationship is one in which two members of the same or of the opposite sex has been living together in a conjugal relationship for at least one year. The year of living together must be a continuous 12-month period.

To succeed in proving the existence of a common-law relationship, you and your partner will have to provide documents that prove that you and your common-law partner have combined your affairs and have set up your household together in one home. This could include:

• joint bank accounts or credit cards;
• joint ownership of a home;
• joint residential leases;
• joint rental receipts;
• joint utilities (electricity, gas, telephone);
• joint management of household expenses;
• proof of joint purchases, especially for household items; or
• correspondence addressed to either person or both people at the same address

What can a couple do if they have not been able to live together continuously for one year, but in all other respects, the couple is similar to a common-law couple or a married couple?

Where a Canadian permanent resident or citizen is seeking a way to sponsor his or her same sex or partner of the opposite sex, that person may opt to sponsor their partner as a conjugal partner.

Conjugal relationships

The conjugal partner category was created for exceptional circumstances – for foreign national partners of Canadian or permanent resident sponsors who would ordinarily apply as common-law partners but for the fact that they have not been able to live together continuously for one year, usually because of an immigration impediment. It applies to couples of the same sex or of the opposite sex who have been in a bona fide conjugal relationship for a period of at least one year.

A conjugal relationship is more than a physical relationship. It is a physically, emotionally and financially interdependent relationship, and it has some permanence and the same level of commitment as a marriage or a common-law union.

You may apply as a conjugal partner if:

• You have maintained a conjugal relationship with your sponsor for at least one year;
• You have been prevented from living together or marrying because of:
  • an immigration barrier;
  • your religion; or
  • your marital status (e.g., you are married to someone else and living in a country where divorce is not possible); or
  • your sexual orientation (e.g., you are in a same-sex relationship and same-sex marriage is not permitted where you live);
• You can provide evidence of an impediment to living together (e.g., evidence of refused long-term stays in each other’s country).

Please note that conjugal partners do not qualify as dependent family members for the purposes of applications under the skilled worker class, the business class or other applicants filing under the economic class.

The above-mentioned rules may be subject to ongoing policy changes. Interested applicants may wish to complete our assessment questionnaire or contact Attorney Colin Singer by email – [email protected], for further information.