Same-sex sponsorship: apply as a spouse, common-law or conjugal partner

The following article appeared in the August edition of The Canadian Immigrant.

In June 2015, the United States Supreme Court in Obergefell v. Hodges required that all U.S. states license marriages between two people of the same sex, essentially legalizing same-sex marriage in America. Two years before, the United States Supreme Court in United States v. Windsor ended the disparate treatment of same-sex and opposite-sex couples in matters of immigration.

The two United States Supreme Court decisions will likely result in American immigration policy more closely resembling that in Canada, where same-sex marriage has been legal since July 20, 2005.

In Canada, people in same-sex and opposite-sex relationships have three options to sponsor their partner from abroad; they can either apply as spouses, common-law partners or conjugal partners.

 Three partnership options

The spouse category is straightforward, and applies to anyone who was legally married, provided that both parties to the marriage are over the age of 16, and that both parties voluntarily entered the marriage and had the capacity to do so. There are specific exceptions to this, including marriages conducted through proxy, telephone, internet and fax, as well as polygamous and bigamous marriages.

The common-law partner category requires people in relationships who have not married to have cohabited together for at least one year in a conjugal relationship. It requires continuous cohabitation for one year, not intermittent cohabitation adding up to one year. While cohabitation means living together continuously, short periods of separation due to work, business travel, family obligations, etc., are permitted. After the one-year period of cohabitation has been established, the partners may live apart for periods of time without legally breaking the cohabitation, provided that there is evidence that both parties are continuing the relationship.

The conjugal partner category is for individuals who have been in a relationship for at least one year and who are not married nor have been able to cohabit for one year. The reason for not living together must be exceptional, and the conjugal partner category is typically used by people in same-sex relationships in countries where such relationships can lead to persecution, which for the purpose of this category includes ostracism, loss of employment, inability to find shelter or other sanctions. Typically, there also must be a Canadian immigration impediment to the foreign national partner living in Canada as a visitor, including the inability or unlikelihood of obtaining a visa.

Canada does not have a fiancé or an intended common-law partner category.

A genuine relationship

Regardless of which category is used, all applicants must demonstrate that their relationship is genuine and that the primary purpose is not simply to immigrate to Canada.

To establish genuineness, couples must show that they share a mutual commitment to a shared life to the exclusion of all others. It includes the requirement of monogamy, and applicants are required to demonstrate that they are interdependent physically, emotionally, financially and socially. (On a side note, persons who are married can be in a common-law partnership or a conjugal partnership with someone else, provided that their marriage has broken down and a physical separation has occurred.)

Establishing the primary purpose of a relationship is similar to establishing genuineness. However, while the genuineness analysis is based on the present, the primary purpose test looks at the intentions of both parties to the relationship at the time the relationship began.

All couples equal

At this point, the existence of same-sex relationships has become so ingrained in Canadian immigration policy that in the context of sponsorship applications, most practitioners and visa officers probably don’t distinguish whatsoever in how they assess couples in same-sex relationships as opposed to opposite-sex ones. As a Canadian, that makes me proud.

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