Unlike the United Kingdom, Canada does not have a fiance visa immigration category. Canada immigration is limited to the spouse visa category and the common-law partnership category (where people live together for one year or more). In exceptional circumstances a sponsor may be able to submit a partner visa application for their conjugal partner if cohabitation or marriage is not possible or feasible. For example, some couples start relationships but cannot live with one another practically due to immigration reasons, work commitments or cultural reasons. The law governing conjugal relationships is complex and advice should be sought from an experienced Canadian immigration lawyer.
Common-Law Partner v Conjugal Partner
Subsection 117(1)(a) of the Regulations provides that a person is a member of the Family Class – and therefore eligible for sponsorship – if they are a sponsor’s
(b) common-law partner; or
(c) conjugal partner.
Section 2 of the Regulations defines a conjugal partner as follows: “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.”
Subsection 1(1) of the Regulations defines a common-law partner as follows: “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.”
We see therefore, that to qualify as a common-law partner for immigration purposes, one has to cohabit as conjugal partners for at least one year. On the other hand, to qualify as a conjugal partner, one only has to “be in” that conjugal relationship for one year – but there is no explicit cohabitation requirement. This leads to the question of how one defines a “conjugal” relationship and be able to apply for a partner visa.
What is a “Conjugal” Relationship?
The term “conjugal” is not defined in the Act or the Regulations. Citizenship and Immigration Canada (‘CIC’) relies on the same definition developed by the courts in the family law context. The leading case outlining the factors that determine whether a relationship is “conjugal” is the Supreme Court decision in M v H.
That said, the case law is clear that no one factor (such as cohabitation) is determinative. An officer is required to look at all the circumstances of the case and come to an assessment of whether, in light of the evidence, the relationship is:
- one of “some permanence”;
- “marriage-like”; and
- one in which the couple has made a “serious commitment” to a “shared life.”
The “Conjugal Partner Visa” Category
The “conjugal partner visa” category was created for “exceptional circumstances” where individuals are not able to either get married or qualify as common-law partners (by living together continuously for one year). CIC cannot force people to get married, as the choice to marry or not to marry is protected by the Charter. However, CIC policy manuals make it clear that “if a Canadian and a foreign national can get married or can live together and establish a common-law relationship, this is what they are expected to have done before they submit sponsorship and immigration applications”
The analysis in CIC Policy Manuals suggests that the category is primarily intended for situations where marriage is not an option – for example where the foreign national is from a country where divorce is not permitted or because the country does not recognize same sex marriage. Such individuals would likely not be able to stay in each others countries for long enough to satisfy the one year cohabitation requirement and qualify as common-law partners. As stated in the CIC Policy Manual: “the conjugal partner category is mainly intended for partners where neither common-law partner status nor marriage is possible, usually because of marital status or sexual orientation (both analogous grounds of discrimination under the Charter), combined with an immigration barrier.”
The biggest obstacles in conjugal partner cases is a lack of cohabitation usually due to immigration barriers as well as the fact that a couple has chosen not to marry – despite indicating that they intend to do so in the future. Immigration Officers are instructed to inquire whether individuals intend to marry. If the individuals state an intention to marry, the Immigration Officer will question whether they have the level of commitment required to qualify as conjugal.
That said, CIC Processing Manuals do acknowledge that “inability to marry cannot be an absolute requirement” – as this would effectively force people to marry in violation of the Charter. The key is “whether they are in a conjugal relationship with their sponsor and whether there is a compelling barrier to continuous cohabitation”. Therefore, it will be up to an experienced Canadian immigration lawyer to show why the barrier to marriage or cohabitation is “compelling” such that the failure to do either is not an indicator that the couple lacks the required commitment to a shared life.
The next question is whether the couple’s relationship would qualify as a “conjugal relationship.”
The first step will be to determine, based on the evidence, the approximate point in time when the relationship became “marriage-like”. It is rarely possible to pin-point a precise time when the relationship became conjugal. Remember, that to qualify as a “conjugal partner” for immigration purposes, the couple needs to have been in a conjugal relationship for 1 year. It’s unlikely a relationship will be conjugal immediately when individuals start dating, but would have developed over time.
The lack of any period of cohabitation even when the couple was in the same country will raise questions. An experienced Canadian immigration lawyer will need to put forward some persuasive explanations as to why co-habitation is not possible, for example, due to cultural reasons. The persuasiveness of such an explanation will largely depend on the evidence submitted. A couple will also need to demonstrate some degree of financial-dependency or amalgamation as CIC will need to see that the relationship has progressed beyond a boyfriend-girlfriend scenario.