By Sukhram Ramkissoon

Canadian immigration law defines who would fall under the family class in terms of sponsorship. According to the law, a foreign national is a member of the family class if, with respect to a sponsor, the foreign national is the sponsor’s spouse, common-law partner, or conjugal partner. 

This means that if you are a Canadian citizen or a permanent resident, you can sponsor your partner to come to Canada as a permanent resident under the family class category. However, there are some eligibility criteria and conditions that you and your partner must meet in order to qualify in this program: 

• To sponsor a spouse, you must establish the marriage is genuine
• To sponsor a common law partner, you must establish you have been residing together for at least one year in Canada and the relationship is genuine
• To sponsor a conjugal partner means, in relation to a sponsor, a foreign national residing outside Canada who is in a conjugal relationship with the sponsor and has been in that relationship for a period of at least one year.

To further explain a conjugal relationship, I will summarize a recent a decision of the Immigration Appeal Division (IAD) which overturned a visa officer’s refusal of a conjugal sponsorship application and allowed the appeal.

Allan (not his real name), a 61-year-old male citizen applied to sponsor his conjugal partner, Jane (not her real name), a 44-year-old female national residing outside of Canada, in June 2021. A visa officer refused the application in  October 2022  because he determined that the couple was not in a conjugal partner relationship. Allan appealed the refusal decision to the IAD.

In the appeal, the IAD must first assess whether Allan has shown, on a balance of probabilities, that he and Jane were in a conjugal relationship for at least a year prior to filing the sponsorship application before any humanitarian and compassionate factors could be considered.

Summarily, the facts of the case as presented to the IAD are as follows:

Allan and Jane’s relationship began in 2018 and has been ongoing for almost five years.  They have an exclusive relationship where they communicate frequently. They have made efforts to spend time together and are familiar with each other’s families and friends. Allan has been providing financial support to Jane since 2020; they knew many details about each other’s lives; they have a sexual relationship and are monogamous; they share chores when they are together. Allan also demonstrated that his relationship with Jane was conjugal at least a year before February 2021, when his sponsorship application was received by the Canadian authorities.

After analyzing the factors of the case, the IAD concluded that Allan and Jane’s relationship has been sufficiently marriage-like, at least one year prior to the lock-in date of the sponsorship application, to meet the criteria of a conjugal relationship.

The IAD noted that the expression “Conjugal relationship” is not defined in immigration law, however, case law has determined that it is a marriage-like relationship and has identified several defining characteristics or criteria which include:

• Shelter: Whether the partners live together in the same home as a couple.\
• Sexual and personal behaviour: Whether the relationship is exclusive, committed and evidenced by emotional, intellectual, and physical interaction
• Services: Whether household and other family-type responsibilities are shared and whether there is evidence of mutual assistance especially in time of need
• Social activities:Whether the partners spend time together or participate in leisure activity together, and whether they have relationships or interactions with each other’s respective families
• Economic support:Whether the partners are financially interdependent or dependent; whether the partners have, to a certain extent, combined or planned their financial affairs to reflect their ongoing relationship (for instance, naming the other partner beneficiary of an insurance policy or will)
• Children: The partner’s attitude and conduct towards children in the context of their relationship
• Societal perception: Whether the partners are treated or perceived by the community as a couple.

These criteria were developed in family law and need to be adapted to family class sponsorships. “The impact of social customs and more applicable to marriage-like relationships prevalent in other countries, and the effect of geographical distance on the manifestation of the relationship, are taken into account by decision-makers when assessing the nature of the relationship,” the IAD stated.

After hearing testimony from both parties about the development of their relationship, Allan’s past family history, his various trips and the amount of time spent together and other factors, the IAD determined that Allan demonstrated, on a balance of probabilities, that he and Jane are conjugal partners, as defined by the regulations and allowed the appeal.   Their matter was referred back to the visa office to continue processing Jane’s permanent resident visa.

Congratulations Allan and Jane.

Sukhram Ramkissoon is a member of CICC and specializes in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756.