When one hears the phrase, ‘conjugal relationship’, they will generally interpret this to mean a romantic relationship between two people. However, a recent decision of the Federal Court of Canada has expanded the definition of conjugal relationship to apply to a platonic partnership between a gay man and a straight woman who share a child.
When a Canadian citizen or permanent resident wishes to sponsor a foreign partner for immigration to Canada, this is commonly done through the spousal or common-law category. However, there are relationships similar to a marriage or common-law partnership that do not fit within that category, and are therefore classified as ‘conjugal relationships’.
The eligibility requirements under the conjugal relationship category were originally set out by the Supreme Court in the 1999 decision, M. v. H. ( 2 SCR 3). In that decision, the court listed a number of factors that can determine a conjugal relationship, including:
Based on this description, the category is generally applied to individuals who view themselves as a romantic pairing, but for one reason or another are not considered to be spouses or common-law partners. In many cases, this may be because the foreign partner may reside in a country where they are not permitted to divorce a former spouse, or because the relationship is not supported by law or social customs (for example, LGBTQ2A+ pairings).
In the case at hand, the applicant, A.P., had immigrated to Canada several years ago because he feared persecution in his home country for being gay. He was granted protected person status and became a permanent resident in Canada. After he had been living in Canada for some time, he was travelling abroad and met up with A.M., a female friend from university. The two were intimate when they were together, and A.M. became pregnant. The pair made attempts to share parenting from afar and tried unsuccessfully to relocate to the country where they had met.
Throughout all of this, A.P. had not been forthcoming with A.M. about his sexuality, and they were perceived by some friends and family as a romantic couple. Once they decided to move forward with the plan for A.P. to sponsor A.M. for immigration to Canada, A.P. told A.M. he was gay. The pair decided to move ahead with their application.
A.P. said that he loved A.M. and was committed to her and their child, however, their application was rejected by immigration officers, and again on appeal. The Immigration Appeal Division (IAD) said the pair could not meet the “sexual component of conjugal partnership”. The IAD also cited a lack of communication between the couple, saying the lack of candour between A.P. and A.M. was not representative of a typical conjugal relationship.
When the couple brought their case before the Federal Court, the judge found in their favour, saying:
“I find the fact of their different sexual orientations does not foreclose the possibility of AP and AM establishing that they are in a committed relationship of some permanence.”
The case was remitted back to the IAD, where a different panel will assess the matter.
The Federal Court’s finding opens up the possibility that the conjugal relationship category could be applied to more unconventional pairings in the future.
At Garson Immigration Law, we are dedicated exclusively to the practice of immigration law and we regularly provide assistance to clients looking to sponsor family members for immigration to Canada. We are widely recognized for our expertise in the field and will work to find an effective solution for your individual immigration needs. To discuss your circumstances with one of our experienced immigration lawyers, please contact us online or call us at 416-321-2860.