Regulation 5 of the Immigration and Refugee Protection Regulations states that a a foreign national shall not be considered the spouse of a person if at the time the marriage ceremony was conducted either one or both of the spouses were not physically present unless the person was not physically present at the ceremony as a result of their service as a member of the Canadian Forces and the marriage is valid both under the laws of the jurisdiction where it took place and under Canadian law. There are similar provisions excluding such individuals from the Family Class and the Spouse or Common-Law Partner in Canada Class.
The Immigration, Refugees and Citizenship Canada (“IRCC”) Guidelines state that:
Proxy, telephone, fax, Internet or similar forms of marriage where one or both parties are not physically present are excluded relationships in all temporary and permanent immigration programs.
Proxy marriage is defined as a marriage in which one or both of the participants are not physically present, but they are represented by another person who attends the solemnization. A telephone, fax or Internet marriage is a marriage in which one or both of the participants are not physically present at the same location, but participate in the solemnization of the marriage by telephone, fax, Internet or other means (e.g. Skype or FaceTime). It is possible that someone other than the persons getting married participates on their behalf as well as over the telephone, by fax, Internet or other means.
Applications received by IRCC before June 11, 2015, from persons married by proxy, telephone, fax or Internet are not subject to this exclusion.
To be considered physically present at a marriage ceremony, both parties (e.g. sponsor and spouse or principal applicant and accompanying spouse) must have participated in a wedding ceremony in person.
Note: Couples who have been married by proxy who have been living together may have their relationship assessed to determine if it meets the requirements of a common-law relationship.
Exemption – Canadian Armed Forces personnel
An exemption exists for members of the Canadian Armed Forces who, due to travel restrictions related to their military service, were not present at their marriage ceremony, whether or not that marriage was conducted and registered in a foreign jurisdiction where it is legally valid.
In the case of a marriage where one or both parties are not physically present, officers should identify the sponsor’s employer on the IMM 5532 (Relationship Information and Sponsorship Evaluation form) to determine whether he or she is a member of the Canadian Armed Forces. If it is confirmed that the sponsor is or was a member of the Canadian Armed Forces, the officer should send a letter requesting submissions or conduct an interview with the applicant to determine whether travel restrictions related to military service caused him or her to be incapable of being physically present at the marriage ceremony. If so, an exemption will be applied and the officer will continue processing the application as a spouse.
Individuals who were not physically present at Canada can still immigrate to Canada through the family reunification stream if:
- they have cohabited with their spouse for one year or more, in which case they can apply as common-law partners; or
- sufficient humanitarian & compassionate factors apply.
In Jahan v. Canada, 2018 FC 99, Justice Russell determined that spouses that are in a bona fide relationship but who are excluded from the Family Class because of IRPR r. 5 face hardship. Justice Russel wrote that (paragraph split into multiple paragraphs for ease of reading, emphasis added):
It seems to me that the IAD was correct to point out that s 65 of the Act prevented the IAD from considering H&C grounds on the facts of this case but, as the IAD also points out, this does not prevent the Applicant from making an application under s 25(1) to the Minister on H&C grounds.
In the present application before me, the Respondent concedes that a s 25(1) application is available to the Applicant and says that she has yet to exercise the means available to her under the governing legislation to achieve the result she desires. The Applicant has not explained why she has not made such an application.
Guideline 3.8.2 (cited above) makes it clear that there may be a sufficiently compelling circumstance where a sponsor cannot meet the definition of common-law partner and could not travel to a marriage ceremony because of illness. Other grounds might include a lack of financial resources although, on the evidence before me, the Applicant has been back to Bangladesh twice for five-month periods since the proxy marriage.
It may be that, given the circumstances of this case, a s 25(1) application is the only means available to the Applicant to sponsor her husband based upon what appears to be – in the evidence before me – a genuine proxy marriage that the Applicant was not coerced into. The change in the Regulations regarding proxy marriages has left her in a kind of legal limbo that she has no way of exiting other than by way of s 25(1). This would appear to be a significant hardship for the Applicant and her husband and one that should be given serious consideration in any H&C application that she chooses to make.
Our firm has previously successfuly relied on Jahan in situations where proxy marriages occurred, especially where the proxy marriage occurred in a situation or culture where there are no concerns about forced marriages, as this was a central reason why the ban on proxy marriages counting towards immigration was introduced.
The Regulatory Impact Assessment Statement for the prohibition on proxy marriages states:
The nature of proxy, telephone, fax, Internet and other similar forms of marriage can help to facilitate forced marriages because one or both spouses are not physically present, making it more difficult to determine that they consent to the marriage. In recent years, a small number of cases of forced marriage facilitated by proxy have been brought to the attention of Citizenship and Immigration Canada (CIC).
In the existing regulatory framework, proxy, telephone, fax, Internet and other similar forms of marriage, including those forms used to facilitate forced marriage, are not explicitly barred, and there are no grounds to refuse them as long as they are legally valid in the country in which they occurred.
The proposed amendments would bar marriages conducted by proxy, telephone, fax, or Internet and other similar forms to help the immigration system make it impossible for forced marriages conducted by these means to be a mechanism to gain immigration status in Canada (i.e. through “marriages of convenience,” as described above). They may also help reduce the number of vulnerable individuals who fall victim to forced marriage in order to gain immigration status in Canada.
Raising the minimum age of eligibility of a spouse from 16 to 18 and barring marriages by proxy, telephone, fax, Internet, and other similar means would help reduce the vulnerability of women in the immigration context.
No longer recognizing legally valid marriages conducted abroad by proxy, telephone, fax, Internet or other similar forms is expected to help prevent early and forced marriages conducted by these means as a way of gaining immigration status in Canada. It would also help reduce the number of individuals — mainly women and girls — who are made vulnerable as a result.
As the situation below demonstrates, if an individual was not present at their civil marriage, but did attend their religious ceremony, then this will not allow an individual to immigrate under family reunification unless the religious wedding was one which was legally recognized by the government. Please note that the image reproduced below is a snippet from a PDF containing internal correspondence between IRCC managers, and was not reproduced with the endorsement of the Government of Canada.