James McCarthy - Ryder-Burbidge Hurley Foster
Imagine that you and your partner have decided to move to Canada. You've done the research, picked a community that looks exciting and vibrant (for example, right here in Kingston!) and are getting ready to start the immigration process. But there's still one concern in your mind: you and your partner are in a same-sex relationship, coming from a country where you are not able to marry. You wonder: can we still immigrate as a couple?
For many, this is not a hypothetical question, particularly as most immigrants to Canada come from jurisdictions in which same-sex marriage is not currently legally recognized. For same-sex couples from these jurisdictions, the ability to immigrate to Canada together, particularly where only one partner qualifies for temporary or permanent immigration status, can be an important consideration in planning this major life change.
Luckily, Canada's Immigration and Refugee Protection Act, and the Regulations, recognize non-married partners in a variety of circumstances, through two legal concepts : common law partner and conjugal partners.
A common law partner is defined in the Regulations as " in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year." Common law partners have access to many of the same immigration options as married spouses: for example, a person can apply for an open work permit if their common law partner is studying in Canada. A Canadian citizen or permanent resident can also apply to sponsor a common law partner for permanent residency.
While this definition of common law partner is helpful for many folks who come from countries without marriage equality, for couples from countries where their relationships may be illegal, or where living together openly may be dangerous, the Regulations also recognize the possibility to admit as a common law partner "an individual who has been in a conjugal relationship with a person for at least one year but is unable to cohabit with the person, due to persecution or any form of penal control".
Another form of non-married partnership recognized by the Regulations is a "conjugal partner," defined as "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." This is a much more limited status, applying exclusively to family class sponsorship, when marriage and common law are both unavailable.
There are still many other details to consider - because common law or conjugal partners don't have a marriage certificate to point to, they will need to satisfy officials that they qualify for this status, and for many this may still be a challenge to prove. It is also important to remember that each couple's situation is different, and determining whether a couple qualifies as common law or conjugal is fact-specific.
An immigration lawyer can assist in deciding the best option and determining what documents are necessary. Our James McCarthy and Samantha Rosen-Lawlor practice in immigration law, and would be happy to speak with you!