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.

 

 


Bill S-7 – The Zero Tolerance for barbaric Cultural Practices Act

On November 5, 2014, the Leader of the Government in the Senate introduced Bill S-7, An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other Acts, otherwise known as the Zero Tolerance for Barbaric Cultural Practices Act (“Bill S-7“).

Bill S-7 has mainly received media attention because of its arguably inflammatory title.  The actual significant impacts for prospective immigrants and practitioners are:

Current Proposed
Practising polygamy does not result in a foreign national or permanent resident being inadmissible to Canada. A permanent resident or a foreign national is inadmissible on grounds of practising polygamy if they are or will be practising polygamy with a person who is or will be physically present in Canada at the same time as the permanent resident or foreign national.
Marriage requires the free and enlightened consent of two persons to be the spouse of each other.
No person who is under the age of 16 years may contract marriage.
There will be a new offence that everyone who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is marrying against their will is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
There will be a new offence that everyone who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is under the age of 16 years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
A judge may order a person to enter into a recognizance with conditions to keep the peace and be of good behaviour for the purpose of preventing the person from committing an offence relating to the marriage of a person against their will or the marriage of a person under the age of 16 years or relating to the removal of a child from Canada with the intention of committing an act that, if it were committed in Canada, would be such an offence.

 

Speaking before the Standing Committee on Citizenship and Immigration, Chris Alexander, the Minister of Citizenship and Immigration (the “Minister“), stated:

Polygamy would be added to that very limited set of inadmissibilities. It would provide immigration officers with the tools they need to render both temporary and permanent residents inadmissible for practising polygamy. The new inadmissibility would mean that those entering on a temporary basis who are in polygamous marriages abroad would be able to enter only on their own.

It also means that permanent residents found to be in a polygamous marriage will be removed on that basis alone. In other words, if someone applied for immigration and received permanent residence without informing authorities of the reality of their situation, and were found to be in a polygamous union, they would be removed. We would no longer need a criminal conviction or a finding of misrepresentation in order to begin deportation proceedings.

When asked how this would affect permanent residents who are now practicing polygamy in Canada, the Minister stated:

First of all, I think the point you’ve just made is that the long-standing criminalization of polygamy in Canada points to the fact that it has been a phenomenon in Canada for some time. That point reminds us of Bountiful, British Columbia, and some other communities across the country. It is absolute proof of the fact that there is no racial or xenophobic aspect to this. Polygamy is a practice that can be found in Canada, among people born here who have been here for generations, as well as among newcomers.

Polygamy is legal, to one extent or another, in over 60 countries around the world, and there have been recorded cases of polygamy involving Christians, Muslims, and Hindus. Anyone from the opposition side who says that one group or another is being targeted by this is absolutely wrong, and any cultural community in Canada that makes that claim is wrong. We know from our consultations that most cultural communities, particularly women, welcome protection from polygamy, as they welcome protection from forced and early marriage. That is why they came to Canada.

Now, what does the bill do? It essentially says that instead of having to have a criminal conviction for polygamy—and we know there have been nine of those in over a hundred years, although there are some cases under way today—or a finding of misrepresentation, which is a very high threshold of administrative proof in our immigration system, we will now, instead of meeting those very onerous thresholds, simply have to have an immigration officer satisfied by the evidence before them as they examine the file that polygamy has been practised. That in itself would be grounds for removal, just as a finding that someone, after immigrating to Canada, has been convicted of murder in their home country or has been a génocidaire in Rwanda would be grounds for removal. Polygamy will now be similar grounds.

On your question of peace bonds, I should add that there are some orders the court could give that haven’t yet been mentioned. The family could be ordered to refrain from making arrangements or agreements in relation to the marriage. They could also be ordered to participate in a family violence counselling program. There are some preventative aspects to a peace bond as well.

Are the Polygamy Provisions of the Bill Necessary?

Several organizations have questioned whether the polygamy provisions of Bill S-7 are necessary.  The Canadian Bar Association, for example, has written:

Practising polygamy is an offence under the Criminal Code of Canada.  In the current immigration context, s. 117(9)(d) of the Immigration and Refugee Protection Regulations (IRPR”) further provides that:

(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

(c) the foreign national is the sponsor’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

(A) the sponsor is the common-law partner of another person or the sponsor has a conjugal partner, or

(B) the foreign national is the common-law partner of another person or the conjugal partner of another sponsor; or

The Spouse and Common-Law Partner in Canada Class contains similar provisions, as does IRPR r. 5, which essentially prohibits accompanying spouses in polygamous relationships.  These sections all prohibit a second (or third, etc.) wife from being recognized as a spouse and provides that only the first marriage may potentially be recognized for immigration purposes.  Furthermore, the Citizenship and Immigration Canada (“CIC”) Guidelines sets out that in polygamous cases, in order for the first marriage to be recognized as legally valid under Canadian law, the couple must live together in a monogamous relationship in Canada. A polygamous marriage can be converted into a monogamous relationship provided that the couple live together in a monogamous relationship from the time of arrival in Canada. 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.  The children born from the second or subsequent marriages, however, can be included in a permanent residence application if they meet IRPR’s definition of dependent.  Finally, a person who immigrates to Canada who practices polygamy but does not disclose all of their conjugal relationships may be found inadmissible for misrepresentation.

A Note on Bountiful, British Columbia

Much of the discourse around Bill S-7 has focused on the Muslim community.  However, one of the first communities that may be impacted is the community of Bountiful in British Columbia, a small allegedly polygamous community in south-eastern British Columbia.  Indeed, as noted above, the Minister specifically referenced Bountiful when speaking to the Standing Committee on Citizenship and Immigration.  Finally, as the internal e-mail obtained through an Access to Information Act request shows, CIC as early as 2012 started examining its role in the continued existence of the remote community. Bountiful

Further Explanation

The PDF below contains useful internal slides summarizing Bill S-7.