When it comes to immigration to Canada, what qualifies as a family?
This is a question that many immigration consultants in Toronto get. Another common question is if a gay man wants to sponsor a female friend as his conjugal partner, will that work? Also, is a conjugal relationship determined only by gender compatibility?
The Federal Court of Canada gave a decision in a recent case (A.P. v. Canada (Citizenship and Immigration), 2020 FC 906) that a conjugal relationship application’s genuineness is not to be rejected due to sexual incompatibility and that other factors need to be considered. Needless to say, this has shown the potential of expanding traditional ideas of what a family should be.
With that being said, let’s look at how the CIC sees it:
What is a Conjugal Partner?
Based on the Immigration, Refugees, and Citizenship Canada (IRCC) policy, a conjugal relationship is one that has some permanence. It is viewed as a situation where two individuals are interdependent not only financially but also physically, emotionally, and socially. They share a household and responsibilities, and it is deemed a serious commitment to each other.
In this context, conjugal does not in any way mean just “sexual relations.” It is an indication of a deep attachment between two people.
Factors That Determine a Conjugal Partnership
- Shared home
- Services (such as sharing chores and errands)
- Social activities (considered a couple in their community)
- Economic support
- Children (in the absence, the attitude towards having them)
- Sexual and personal behaviour (commitment to each other and fidelity, among others)
Note that while these are contributing factors, they are not absolutely required. It may be for this reason that the court case mentioned was brought to light in the first place. Your trusted immigration consultant breaks down the case for you.
Short Overview of the Case
The applicant AP is a gay man who felt the need to flee his country for fear of persecution. The man was granted refugee status in the country, and while living in Canada, he reconnected with a female friend (AM) from his former country. They communicated almost every day and twice, AM tried to go to Canada to meet AP, but her visa was denied. In the end, they went on vacation in another country and had a sexual encounter during the trip, resulting in a child.
Naturally, the couple wanted to raise their child together as a family. For this reason, AP applied for sponsorship, identifying AM as his conjugal partner. There were three levels of decision making in this case:
1st stage: Rejection of Conjugal Sponsorship Application
The immigration officer did not approve the application for AP’s conjugal sponsorship, though this happened even without conducting an interview to clarify the situation. They merely rejected the application because AP and AM were not actual conjugal partners. After that, AP made an appeal.
2nd Stage: Rejection by the Immigration Appeal Division
The Immigration Appeal Division (IAD) rejected the appeal on the ground that the sexual component of what they believe to be a conjugal relationship cannot possibly be fulfilled by a gay man and a heterosexual woman. They were doubtful of the genuineness of the situation, given that AP is gay and not bisexual. Also, they pointed out the inadequacy of the communication between the two because AM was not even aware of AP’s homosexuality until they had their child.
3rd Stage: IAD’s Decision Being Challenged in the Federal Court
The court agreed with AP because it found the IAD’s decision to be unfair. The Court stated that even though AP was gay and may not be sexually compatible with AM, it didn’t mean he didn’t care for her. They believe he was committed to raising a family with her.
Moreover, they deemed the IAD’s decision proved to be a narrow and stereotypical view of a relationship, and that based on their definition of “conjugal,” sexual relation is just one of the many non-mandatory factors.
The case’s result is not standard, but it certainly broadens the scope of a conjugal relationship’s meaning. To that end, it still should be made clear that several factors are considered before a “friend” would qualify as a “conjugal partner.” If you need more clarification on the subject, you should contact our immigration experts at Bright Immigration who can discuss this with you in detail.
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