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Same-Sex Spousal Sponsorships

IN CANADA one can sponsor one’s same-sex partner to become a permanent resident.  Of course, in many parts of the world it is not possible to marry a same-sex partner, or even for partners to live together openly, and so marriage or common-law union cannot be the foundation for such a sponsorship.  Instead, the sponsorship often proceeds upon the basis that the parties are conjugal partners.  Before immigration status can be conferred in such a case, however, it must be established that the relationship of the sponsor and the applicant meets the definition of conjugal partnership, and that’s where Alain Morel and Rui Guo come in.

When their case was before the Federal Court of Canada, Mr. Morel was a 59-year-old Canadian man and Mr. Guo a 27-year-old citizen of the People’s Republic of China, and they had been in a relationship for about six years.  However when their same-sex, conjugal-partner sponsorship application was filed,  the two men had known each other for only about two years, and they had only been  physically together during one visit of ten days duration.  Still, they had been in daily communication with each other by phone or other means, their relationship was exclusive, and Mr. Morel had sent Mr. Guo money and made him the beneficiary of his will.   During the next four years the relationship continued and deepened, but it is important to note that the question before the visa officer, then before the Immigration and Refugee Board that heard the appeal of the visa officer’s decision, and then before the Federal Court judge that judicially reviewed the Board’s decision, was whether the relationship met the conjugal-partner standard at the time the sponsorship application was filed.
According to the Supreme Court of Canada, as it expressed itself in the case of M. v. H. [1999] 2 SCR 3, the generally accepted characteristics of a conjugal relationship are:
  • SHARED SHELTER: whether the partners live together in the same home as a couple;
  • SEXUAL AND PERSONAL BEHAVIOUR: whether the partners’ 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 share time together or participate in leisure activities together, and whether they have relationships or interaction with each other’s respective families;
  • ECONOMIC SUPPORT: whether the partners are financially interdependent or dependent, and whether they have, to some extent, joined their financial affairs or arranged them to reflect their ongoing relationship;
  • CHILDREN: the partners’ attitude and conduct towards children; and
  • SOCIETAL PERCEPTION OF THE COUPLE: whether the partners are treated or perceived by the community as a couple.
The Visa Officer refused the application because: (1) she was not satisfied that a conjugal relationship existed between the two men because their relationship was not marriage-like; and (2) their relationship was entered into primarily for the purpose of acquiring status or privilege under immigration law.  The spousal sponsorship  application therefore failed, the sponsorship was refused, the application fee was lost, and Mr. Guo remained in China.
Upon the appeal of Mr. Morel, the Immigration Appeal Division of the Immigration and Refugee Board reversed that decision, however, because the panel concluded that Mr. Morel and Mr. Guo had the characteristics of conjugal partners, because they were in daily contact, gave spontaneous and direct testimony, filed extensive supporting documentation, and established that their relationship was exclusive and somewhat financially interdependent.  The implication of such a reversal is usually that the sponsorship refusal is set aside, there is a finding registered that the relationship meets the definition of conjugal partnership, and then the application is returned to the visa post overseas for final processing.  At this point, it looked like Mr. Morel and Mr. Guo might be together in Canada a few months hence.
However, the Minister of Citizenship and Immigration was not content with the Board’s decision and asked the Federal Court of Canada to review it.  Mr. Justice Lemieux did so, determining:
  • email and telephone exchanges, a money transfer and a ten-day period of cohabitation were not enough to establish a conjugal relationship;
  • it was wrong to conclude that Mr. Morel and Mr. Guo shared a life together through a computer;
  • it was not the intention of Mr. Morel alone that was important, but rather the intention of both men; and
  • the panel had neglected to consider some of the observations of the Visa Officer.

The court allowed the application for judicial review, set aside the decision of the Immigration and Refugee Board, and sent it back to the Board to be redetermined by a different panel.  The long journey of Mr. Morel and Mr. Guo, who had hoped to be living together in Canada years before, was to continue.

What lesson can we learn from this case?  Hindsight, as they say, is very clear.  In retrospect, Mr. Morel and Mr. Guo might have waited to develop more evidence that their relationship was marriage-like before filing the sponsorship application or, in the alternative, invested more heavily in establishing a physical connection.  This might have happened had Mr. Morel traveled to China more than once before the application was filed, or had Mr. Guo come to Canada as a visitor, or at least tried to do so.  To avoid the sorts of complications they experienced, it is always desirable to carefully assess the prospects for success before filing, to fully document the relationship sought to be established,  to file comprehensive written submissions, and to thoroughly prepare for the visa office interview.  If you do the work up front, you may avoid a lot of additional work and expense later.

To read the full case, the citation for which is Canada (Minister of Citizenship and Immigration) v. Morel 2012 FC 1404, click here.