Same-Sex Couples: Equality under Canadian Immigration Rules
Canada has distinguished itself from most other nations by affording same-sex and opposite-sex couples equal treatment for immigration purposes.
Both marriage and common-law partnerships (opposite-sex and same-sex) are legally recognized in Canada for purposes of federal benefits and obligations (Modernization of Benefits and Obligations Act, June 2000). Canadian Immigration legislation conforms to this law.
Same-sex couples, residing abroad in a common-law or marriage relationship, can apply for Permanent Residence Status in Canada as a couple, subject to meeting eligibility criteria. Likewise, Canadian citizens and Permanent Residents can sponsor their same-sex partners.
In 1994, the current Federal Government in response to increased pressure by various interest groups, undertook to conduct a review of a recognition of same sex and common law relationships, across a broad range of government programs and legislation. In this context, the following is a summary of the Department's POLICY position with respect to the processing of applications for permanent residence on behalf of same sex and common law couples (as it appears in a telex transmission by the International Services Group to missions abroad, on 3 June 1994):
- The Immigration Regulations define spouse as someone of the opposite sex to whom an individual is joined in marriage. This definition precludes the approval of Family Class sponsorship of same sex or common law spouse applications, or the inclusion of a same sex or common law spouse on an independent, refugee or related application. Nevertheless the discretion related provisions of sections 11(3) and 2.1 may be used by missions abroad to process such applications.
- In processing applications involving a same sex or common law relationship, missions should consider each application on its individual merits.
- Where the visa office receives an application that has been initiated via a Family Class sponsorship which involves a same sex or common law spouse, the visa office should review the application and process it under the Independent rules as processing under FC is not possible. Visa Offices should accept those same sex or common law spouses that qualify under the normal selection system or where R 11(3) is warranted (i.e. where the number of units do not reflect the applicant's ability to successfully establish in Canada. In these cases the Bona Fides of the relationship are not relevant to the assessment of the application.
- Where the avenues noted above are not viable, visa offices should review same sex or common law applications for Humanitarian and Compassionate grounds. Where H & C grounds are compelling, it is appropriate for program managers to use their R2.1 authority to waive R8 and authorize the issuance of an immigration visa. H & C grounds in such cases include the existence of a stable relationship with a Canadian citizen or permanent resident. Visa offices should recognize that undue hardship would often result from separating or continuing the separation of a bona fide same sex or common law couple.
- When assessing whether H & C factors are present, visa offices may look behind same sex or common law relationships (as is done with marriages of convenience). Visa offices should assess relationships to determine that they are bona fide (in terms of duration and stability of relationship) and not entered into primarily for the purpose of gaining admission to Canada by one of the parties. Where H & C factors are present and the applicant is otherwise admissible, missions should issue an immigrant visa. Where no grounds exist to accept an application, including those that were initiated by a Family Class sponsorship (even though the sponsorship is precluded by the regulations), the visa office should refuse the applicant as an independent under A 19(2)(D), R4, etc. The Independent refusal letter should make clear that a FC sponsorship application was reviewed but found to be outside of the Regulations.
- Visa offices may also use R 11(3) or 2.1 to facilitate the admission of an otherwise unqualified applicant who is involved in a same sex or common law relationship with an individual who, in their own right, qualifies for immigration under any category. For example visa offices could use R 2.1 to issue an immigrant visa to the same sex spouse or a qualified independent applicant.
Readers are reminded that the foregoing policy may receive varying interpretations/applications by visa offices abroad.