Last Updated on June 26, 2015
With effect from June 11, 2015, Citizenship and Immigration Canada (CIC) does not recognise marriages conducted by proxy, telephone, fax, internet or other similar forms of marriage where one or both parties are not physically present during the ceremony for immigration purposes. The sole exception to this are marriages by members of the Canadian Forces.
The authorities deem an application as locked-in on the date they receive it. However, this is applicable as long as the application meets completeness requirements. It is worth noting that the receipt of an application refers to an application that bears the date-stamp of a Citizenship and Immigration Canada (CIC) office designated to intake applications for a specific permanent resident category or program.
For temporary residence applications, the authorities consider an application submitted on paper as received on the day the designated Citizenship and Immigration Canada (CIC) intake office date-stamps the application. Similarly, the authorities consider an application submitted electronically as received on the date the applicant submits the application online. The authorities consider an application submitted at a Port of Entry (POE) as received on the date of the examination at the Port of Entry (POE).
3.5 The Exemption for Canadian Armed Forces Personnel
The authorities have granted an exemption to members of the Canadian Armed Forces. This is because these individuals often encounter travel restrictions related to their service. Because of this, it is possible that these individuals will not be present at their marriage ceremony. This is so even if they conducted and registered the marriage in a foreign jurisdiction, where it is legally valid. However, it is worth noting that individuals cannot legally conduct or register marriages where one or both parties are not physically present in any province or territory in Canada.
This exemption only applies to Canadian citizens and permanent residents, who are applying to sponsor a foreign national spouse they married by way of proxy, telephone, fax, internet or similar means, where they could not be physically present because of travel restrictions related to their military service.
In these situations, officers might ascertain that the marriage took place via one of these excluded means. On confirming this, the officers would need to identify the sponsor’s employer on the IMM 5481 (Sponsorship Evaluation Form). This would enable them to determine whether the sponsor is a member of the Canadian Armed Forces.
On confirming that the sponsor is (or was) a member of the Canadian Armed Forces, the officer would need to:
- Send a letter requesting submissions to the applicant or,
- Conduct an interview with the applicant
This would enable the officer to determine whether travel restrictions related to military service were responsible for preventing the applicant from being physically present at the marriage ceremony. If this is indeed the case, the officer would need to apply an exemption. Thereafter, the officer would need to continue processing the application as a spouse i.e. FC1.
3.6 The Considerations
In some sponsorship applications, the officer might make the decision to refuse the application. In this scenario, the officers would need to consider whether the exemption for Canadian Armed Forces Personnel applies.
In addition, the officer would need to determine whether the applicant meets the definition of common-law partner. This is especially so if the marriage ceremony took place via proxy, telephone, fax, internet or a similar form where one or both parties were not physically present. Only after determining this can the officer decide to refuse any application. If the officer determines that the applicant meets the definition of common-law partner, the officer would need to consider whether to process the applicant as a common-law partner. This is in accordance with the provisions specified under section 3.8.1.
Similarly, officers might encounter situations where they find the relationship to be genuine even if the marriage has taken place by proxy, telephone, fax, internet or similar means. They might even find that the applicant does not meet the definition of common-law partner. In this scenario, officers would need to make the decision to refuse any application. However, prior to doing so, they would need to assess whether sufficiently compelling circumstances exist for them to consider applying Humanitarian and Compassionate (H&C) considerations for overcoming the regulation. This might include their having to consider situations pertaining to the best interests of the child. This is in accordance with the provisions specified under section 3.8.2.
The Border Services Officers (BSOs) of the Canada Border Services Agency (CBSA) would need to review all the considerations specified in section 3.6. Thereafter, they would need to process the application accordingly prior to deciding to refuse the application because of an excluded relationship.
3.7 The Refusal
Situations could arise where the officer determines that the applicant or the spouse were not physically present during the marriage ceremony. As such, the officer would deem that the applicant or the spouse do not qualify as common-law partners. In addition, the officer might be of the view that the application does not warrant applying Humanitarian and Compassionate (H&C) considerations. In this scenario, the officer would be justified in refusing the application, based on the marriage meeting the definition of an excluded relationship under sections R5, R117 (9) (c.1) and R125 (1) (c.1).
On refusing the application, the officer would need to inform the applicant that:
- Under the applicable regulations of the Immigration and Refugee Protection Regulations (IRPR) i.e. sections R5, R117 (9) (c.1) and / or R125 (1) (c.1), the authorities deem the applicant’s marriage as an excluded relationship and,
- The authorities only consider marriages where both parties were physically present at the ceremony as valid in the immigration context
However, officers would do this only if the relationship meets all the other specified requirements.
It is worth noting that family class applications would continue to have comprehensive bona fides assessments. This is in accordance with the provisions specified under section R4 (1). Therefore, officers would be able to detect and refuse relationships that are not genuine under the provisions specified in R4 (1).
Situations could arise where officers come across applicants who do not disclose that they conducted their marriage by proxy, telephone, fax, internet or similar means, with the intent of withholding this information. In this scenario, the officers have the authority to rule that the applicant has:
- Misrepresented a material fact or,
- Withheld a material fact
In this scenario, the officers would need to write an A44 report, based on the provisions specified under section A40 (1).
Source: Citizenship and Immigration