Spousal, Common-Law, or Conjugal Sponsorship for Same-Sex Couples
Canada has been very progressive when it comes to provincial and federal legislation in recognizing same-sex couples. Amendments have been made on all levels of Canadian government to do away with any prejudice that was present in the past. Citizenship and Immigration Canada now allows same-sex couples to apply for spousal, common-law or conjugal sponsorship under the Family Class of applications.
Decriminalization of homosexuality was first proposed under the Liberal government of Pierre Trudeau in 1967, in which he delivered the famous quote: “I think the view we take here is that there’s no place for the state in the bedrooms of the nation.” By 1969, amendments had been passed into Canada’s Criminal Code officially decriminalizing homosexuality. This landmark legislation opened the door for a more progressive view of same-sex relationships and spurred on the seeds of political change.
In Canada, legally recognized same-sex marriages first became a reality in the province of Ontario. The Ontario Court of Appeal agreed with a lower court ruling to legally allow same-sex marriages on June 10, 2003, and only hours after the ruling the first legally recognized same-sex couple was married in a ceremony held in Toronto, Ontario. Shortly afterwards, many provinces followed suit and also recognized same-sex marriages. British Columbia, Quebec, Yukon, Manitoba, Nova Scotia, Saskatchewan, Newfoundland and Labrador, and New Brunswick all introduced similar legislation by June, 2005.
The final provinces came on board on July 20, 2005 when the Canadian federal government passed Bill C-38, more commonly known as the Civil Marriage Act. From this point in time onward, all same-sex couples have the legal right to marry anywhere in Canada. Due to the new federal legislation, Citizenship and Immigration Canada now processes immigration applications made by same-sex couples under the Family Class.
Sponsoring a Same-Sex Spouse
If you and your partner were married inside Canada, you can sponsor your same-sex spouse if you have a marriage certificate. This marriage certificate will be issued by the province or territory where the marriage was held.
To get a marriage certificate, you will need to first get a marriage licence. The application form for a marriage licence can be downloaded from most official provincial websites or can be obtained from a local municipal office. The marriage licence is then signed by whoever conducted the ceremony (for example, by a judge or justice of the peace). The official who married you will send in the completed marriage licence and it will be registered by the provincial government
6 to 8 weeks after the marriage licence has been sent to the provincial government, you may apply for your marriage certificate. This is an entirely different document from the marriage licence and is the one requested by Citizenship and Immigration Canada. You can apply for this marriage certificate online or by visiting a local municipal office. Furthermore, most provinces have an option to expedite the processing of a marriage certificate (for an extra fee).
The most common mistake with the marriage certificate is submitting the wrong one. Many provinces offer 2 different versions of the marriage certificate: the long form certificate and the short form (or file size) certificate. Take care to order the short form or “file size” marriage certificate as this is the one requested by Canadian immigration.
If you and your partner were married outside Canada, you can sponsor your same-sex spouse by providing proof that the marriage is legally recognized in both the country it took place and in Canada. If your marriage documentation from another country is not in English or French, it will also need to be accompanied by an official translation so that the immigration officer assigned to your case can read it.
Sponsoring a Same-Sex Common-Law Partner
The main determination when qualifying for common-law status as a same-sex couple is one of cohabitation. Citizenship and Immigration Canada requires proof that you and your partner have been living together in a married-like relationship for a continuous period of at least 1 year. There is some flexibility allowed for time apart, such as work related trips, travel, or family visits, but these times apart cannot be too frequent or too long.
Same-sex couples applying under the common-law designation will need to provide documentary evidence that verifies their period of cohabitation. This type of documentation could include:
- Joint signed residential agreements or property ownership
- Joint bank accounts or other records of financial resources
- Shared utility bills with both sponsor and applicants names displayed along with a common address
- Reference letters from family, friends, or coworkers verifying the duration and details of your relationship
- Joint travel tickets (for example, e-tickets)
- Shared credit cards or insurance policies
Any combination of these documents would help to prove the duration of your cohabitation with your partner. The list is by no means exhaustive and could be supplemented with any other type of applicable document.
Sponsoring a Same-Sex Conjugal Partner
By definition, conjugal partners are a same-sex couple that would be married or in a common-law relationship, but for whatever reasons are unable to do so. The circumstances surrounding this couple have forced them to live apart. In this case, a case can be made to sponsor a same-sex partner under the conjugal category.
The most important question when determining if a same-sex couple should be allowed to apply as conjugal partners is: Are the reasons that the couple is living apart out of the sponsor’s or applicant’s control? The immigration officer assessing your case will want to see that if possible, the same-sex couple would be living together but there is simply no way for that to happen at this point in time.
Some of the more common reasons given for living apart on conjugal applications include:
- Sexual orientation: Despite same-sex relationships being recognized in Canada, many other countries in the world have yet to adopt similar legislation. Political and cultural attitudes as well as religious factors may play a part in placing barriers between a same-sex couple. With a same-sex conjugal sponsorship application, this quite often plays a major factor.
- Immigraton barriers: Many conjugal couples are not able to be together due to immigration barriers. Perhaps the applicant has been unable to acquire a valid visa to come to Canada. In this type of scenario the couple would have to provide proof that they were unable to obtain legal status despite their efforts.
Citizenship and Immigration Canada is constantly updating immigration procedures and requirements. For spousal, common-law and conjugal partner sponsorships, a few new rules have been recently introduced that could affect a same-sex applicant’s application.
Conditional Permanent Residence for Sponsored Same-Sex Spouses, Common-Law or Conjugal Partners
New legislation was introduced on October 25, 2012 which places limitations on permanent resident status for certain applicants under the spousal, common-law or conjugal category. This will apply if the couple’s relationship is less than 2 years old and they do not have any children in common.
For same-sex couples applying in this situation, there is one condition that, if not met, could result in the loss of the applicant’s permanent resident status. The couple must continue to live together in Canada for a 2 year period following the activation of the applicant’s permanent resident status. During this 2 year period, the applicant will enjoy the same benefits as any other Canadian permanent resident. However, if the relationship is assessed 2 years later and it is discovered that the couple is no longer living together or has broken-up, then the applicant may lose his or her permanent resident status.
This legislation was introduced in an effort to combat marriages of convenience which were being carried out for the sole reason of obtaining Canadian permanent resident status. There are exemptions allowed to this rule in regards to death of the sponsor or abuse.
5 Year Ban on Spousal, Common-Law or Conjugal Partner Sponsorships
This new legislation applies to all members of this class including same-sex applicants. If an applicant becomes a permanent resident through spousal, common-law or conjugal sponsorship, he or she may not in turn sponsor a new partner until 5 years after receiving permanent resident status in Canada. Even if you can prove that the previous relationship under which you were sponsored has ended, you are still bound by the 5 year rule.
How do I apply for Same Sex Marriage?
To find out more about eligibility requirements and the documentation required to apply as a same-sex applicant under the spousal, common-law or conjugal partner category, you can consult with Citizenship and Immigration Canada’s webpage. The forms for the application must be downloaded from this website and are frequently updated.
Contact Akrami and Associates
If you are interested in sponsoring your same-sex spouse or partner for Canadian permanent residence, allow our firm to assist you! Our team of Canadian immigration lawyers and consultants has the knowledge and expertise to assist you in putting together the best possible application. Call us today at 416-477-2545