Open Marriages and the Family Class

 

Canadian immigration law allows people to sponsor their spouses or common-law partners to immigrate to Canada.  A question that often arises is whether open relationships count.

Multiple Spouses or Common-Law Partners

Canadian immigration law is clear that a person cannot have more than one spouse or more than one common-law partner for the purpose of immigration. .

Section 119(9)(c) of Canada’s Immigration and Refugee Protection Regulations provides that a person cannot sponsor someone if the prospective immigrant is the Canadian’s spouse and (i) the sponsor or the foreign national was, at the time of their marriage, the spouse of another person, or (ii) the sponsor has lived separate and apart from the foreign national for at least one year and either the sponsor is the common-law partner of another person or the foreign national is the common-law partner of another person.

On the issue of polygamous marriages, section 13.2 of Immigration, Refugees and Citizenship Canada’s Overseas Processing Manual 2 – Processing Members of the Family Class (the “Guidelines”) further states that:

Polygamous marriages

Officers must counsel both parties that polygamy is an offence under the Criminal Code of Canada. R117(9)(c)(i) states that a spouse is not a member of the family class if the spouse or sponsor was already married to another person at the time of the subsequent marriage. This regulation prohibits a second (or third, etc.) wife from being recognized as a spouse within the family class and provides that only the first marriage may potentially be recognized for immigration purposes.

In order for the first marriage to be recognized as legally valid under Canadian law, the couple must live together in a monogamous marriage in Canada. Common law imparts that a polygamous marriage can be converted into a monogamous marriage provided that the couple live together in a monogamous relationship from the time of arrival in Canada. This conversion is effected by the stated intention of the parties to so convert their marriage, followed by some factual evidence that they have complied—usually by divorcing the other spouses and/or by a remarriage in a form that is valid in Canada.

The decision to refuse must be based on the balance of all evidence, and not solely because the applicant did not obtain a divorce. The parties must understand that refusal to provide such evidence may result in a refusal of their application.

A polygamous second (or third, etc.) marriage cannot be converted to one of monogamy. If a husband wishes to sponsor a wife other than his first as a spouse, he must divorce his other wives and remarry the chosen wife in a form of marriage that is valid in Canada. He and his chosen spouse must sign a declaration to that effect.

When a sponsor and applicant have been practising polygamy and there are children existing from several spouses, officers must caution the sponsor and the spouse being sponsored that other spouses will not be eligible for immigration to Canada even if their respective children are sponsored. Officers must explain that separation of children from their mothers will likely be permanent, and counsel the sponsor and applicant to consider the consequences of that separation on the children. If the children nonetheless are sponsored, and if one of these children subsequently sponsors their respective mother, this mother must be cautioned that she will have no spousal status and related legal protection in Canada and that she will not be eligible for support or other benefits that also flow from marriage under Canadian law.

The prohibition against polygamy in the Regulations, and the lack of recognition of all spouses except the first, cannot be avoided by processing a second spouse as a common-law partner. Legally, it is not possible to establish a common-law relationship that meets the definition of such in terms of conjugality, where one or both parties are still living in a pre-existing conjugal relationship. The notion of conjugality has within it the requirement of monogamy; therefore, it is only possible in law to establish a new common-law relationship after a person is either divorced or separated from the spouse or common-law partner and where they have convincingly formed the intention not to continue with that previous relationship.

An already existing marriage, uninterrupted by separation, divorce or death, is a barrier that cannot be overcome when assessing a second spouse as a common-law partner. However, where such a barrier is removed (i.e., a first wife is subsequently divorced or is deceased), a husband and second wife could choose either to remarry, or could potentially meet the definition of common-law partner (i.e., where a husband was separated from a first wife and lived with a second wife in a bona fide conjugal relationship for one year after the separation from a first wife). Because a subsequent marriage (where the first is continuing) is not valid in Canadian law, persons in such a scenario would be considered as single in law and thus, they would have to remarry to be considered married under Canadian law.

Section 5.42 of the Guidelines further states that:

5.42. Simultaneous common-law or conjugal partner relationships with two or more people (polygamous-like relationships)

A common-law or conjugal partner relationship cannot be established with more than one person
at the same time. The term “conjugal” by its very nature implies exclusivity and a high degree of
commitment; a conjugal relationship cannot exist among more than two people simultaneously.
Polygamous-like relationships cannot be considered conjugal and do not qualify as common-law
or conjugal partner relationships.

 

Open Relationships

Suppose someone is in a common-law partnership or a marriage, but that the relationship is an open one.  IRCC’s manuals emphasize that in order for a relationship to qualify for Canadian sponsorship purposes the relationship must be conjugal, and that in order for the relationship to be conjugal the relationship must be mutually exclusive.

While the Guidelines are silent on the issue of open marriages and open relationships, the Immigration Appeal Division has held that whether a relationship is open is just one factor in determining whether a relationship is genuine or if it was entered into for Canadian immigration purposes, and that the only part of whether an open sexual relationship could result in a relationship not being conjugal would be if both parties did not mutually agree or recognize that the relationship was open.

As such, Canadians wishing to sponsor a spouse or common-law partner and who are in an open relationship with that person should simply ensure that they do an especially good job of demonstrating that they are in a conjugal relationship, by showing the interdependence in the relationship,  the co-mingling of finances, the public recognition of their relationship and the other factors mentioned in the Guidelines.