Same-sex Marriages

In 2005, the Civil Marriage Act came into effect, defining marriage for civil purposes as ". . . the lawful union of two persons to the exclusion of all others." From this point, same-sex marriages have been recognized across Canada.

Previously, same-sex marriages had been recognized only in certain Canadian provinces.

If a couple was married outside of Canada, the marriage must be valid both under the law of the jurisdiction where it took place and under Canadian law.

In many cases, where same-sex marriages are not recognized in another jurisdiction, many same-sex couples choose to get married in Canada. However, marriage is not the only option, as Canada also recognizes Common-law partners.

Same-sex marriages in Canada will be recognized if you were issued a marriage certificate by a Canadian province or territory on or after the following dates:

• British Columbia (on or after July 8, 2003)
• Manitoba (on or after September 16, 2004)
• New Brunswick (on or after July 4, 2005)
• Newfoundland and Labrador (on or after December 21, 2004)
• Nova Scotia (on or after September 24, 2004)
• Ontario (on or after June 10, 2003)
• Quebec (on or after March 19, 2004)
• Saskatchewan (on or after November 5, 2004)
• Yukon (on or after July 14, 2004)
• all other provinces or territories (on or after July 20, 2005).

If you were married outside Canada, the marriage must be legally recognized according to both the law of the place where the marriage occurred and under Canadian law. This applies to same-sex marriages performed in the following jurisdictions:

• Belgium
• the Netherlands
• Norway
• South Africa
• Spain
• Sweden
• the State of California (June 16, 2008 - November 5, 2008)
• the State of Massachusetts
• the State of Connecticut
• the State of Iowa
• the State of Vermont (effective September 1, 2009)

Please note that the above list of jurisdictions is offered as a guide only, and is subject to change. It is your responsibility to provide CIC information about whether or not your same-sex-marriage was legally recognized when and where it occurred.

Common-Law Partners

For immigration purposes, same-sex marriages and common-law relationships are recognized in family class sponsorships, economic immigration applications, as well as temporary work and study permits.

For immigration purposes, a common-law partner is someone who cohabited for at least 12 continuous months in a "marriage-like" relationship. Living together intermittently for a period that adds up to 12 months does not meet the definition.

It will be important therefore to be able to document the "marriage-like" relationship throughout the 12 months.

This usually includes an element of interdependence, such as joint bank accounts and credit cards, reciprocal wills, listing each other as a beneficiary on life insurance or health care plans, joint ownership of a home or residential leases, etc.

Conjugal Partners

There are times when a couple is in a committed relationship is prevented from getting married and living together for 12 continuous months.

Conjugal partners is a category for partners - either of the opposite or same sex - in exceptional circumstances beyond their control that prevent them from qualifying as common-law partners or spouses.

Conjugal partners should not be used in lieu of the fiancé(e) category which no longer exists.

To qualify as conjugal partners, you must have maintained a "marriage-like" relationship with your sponsor for at least one year and have been prevented from living together or marrying.

For instance, if you were unable to obtain immigration visas to live together for periods of one continuous year and marriage was not possible. Perhaps marriage was not possible due to a pending divorce, or same-sex marriages were not recognized in your country of residence, or it is a country where living with a same-sex partner would result in persecution.

Family Class Sponsorships

A Canadian citizen or Permanent Resident living in Canada can sponsor a spouse, common-law partner, or conjugal partner to become a permanent resident of Canada.

A Canadian citizen or Permaent Resident who is living with their spouse or common-law partner in Canada, also has the option to sponsor their spouse or common-law partner from within Canada; this In-Canada option does not apply to conjugal partners.

A Canadian citizen who is living with their spouse or common-law partner outside of Canada, also has the ability to have the sponsorship processed if they will move back to live in Canada together once the Permanent Resident Visa has been issued; this option is only available to Canadian citizens and does not apply to Permanent Residents living outside Canada.

There are advantages to sponsoring a spouse or common-law partner as a member of the family class.

One advantage is that for policy reasons, a spouse or common-law partner sponsored under the family class will not be medically inadmissible based on "excessive demand" to health or social services. In addition, if the permanent resident application were denied, a Canadian sponsor can appeal the decision to an immigration tribunal for review; there is no such appeal available in the economic immigration categories.

Economic Immigration Categories

If neither spouse or partner is a Canadian citizen or permanent resident, then may be possible to apply together under one of the economic immigration categories, such as the Federal Skilled Worker class, the Canadian Experience Class, the various Provincial Nominee Programs, and a Federal Investor class.

Only one spouse or partner needs to meet the selection criteria in order for both to become permanent residents together. However, if the principal applicant, spouse/partner, or their dependent children are inadmissible, then everyone in the family may be considered inadmissible and denied permanent resident status.

Temporary Work and Study Permits

In many cases, if a foreign national obtains a work permit for skilled or professional employment in Canada, the spouse or common-law partner will be eligible for an Open Work Permit (that is a work permt that is not tied to any specific job or employer).

Similarly, if a foreign national has a study permit for a post secondary school that is either publicly-funded or authorized to grant degrees, the accompanying spouse or common-law partner will be similarly permitted to obtain an Open Work Permit that will be valid for the same duration as the study permit.

Other Resources

Civil Marrage Act
Immigration and Refugee Protection Act
Citizenship and Immigration Canada official website

The Author

	Embarkation Law Group
	Princess Building 600–609 West Hastings Street, Suite 600 Vancouver, BC Canada V6B 4W4 T1: +1 604 662 7404 ext.105 T2: +1 888 662 7404 (USA/Canada toll free) E: joshua@elgcanada.com W: www.elgcanada.com	3320 Richter Street, Suite 304 Kelowna, BC Canada V1W 4V5 T: +1 250 870 9088 F: +1 250 8683851
	Joshua Sohn is a Canadian immigration lawyer and a partner at Embarkation Law Group based in Vancouver, Canada. He is also an executive of the National CBA Citizenship and Immigration Law Section.