This article was authored by Michael Battista, a senior immigration lawyer and Professor at the University of Toronto’s Faculty of Law and Munk School of Global Affairs and Public Policy.
On July 4, 2023, conjugal partners were released from an unreasonable policy constraint that had for many years resulted in sponsorship refusals and appeals. The requirement of proving an “impediment to cohabitation” was removed from operational instructions by virtue of a Program Delivery Update (PDU) found here https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2023-conjugal-relationships-fce.html
Prior to July 4th, Canada’s policy interpretation of the conjugal partner definition stated that a conjugal partner relationship exists if the parties have been unable to cohabit because of an immigration impediment or other serious barrier. Thus, unmarried parties in long term relationships were required to provide evidence of visa refusals or other similar barriers to cohabitation in order to use their relationship as a basis for sponsorship.
There was no justification in law for imposing this constraint. The definition of “conjugal partner” in Regulation 2 is simple:
conjugal partner means, in relation to a sponsor, a foreign national residing outside Canada who is in a conjugal relationship with the sponsor and has been in that relationship for a period of at least one year. (partenaire conjugal)
Therefore the three basic components of a conjugal partner relationship are:
So what motivated policy-makers to impose the additional requirement of an impediment to cohabitation? The answer requires an understanding of IRPA’s history and LGBTQ+ advocacy in Canada.
The consultations leading to IRPA in the late 1990’s occurred at a unique period in Canadian legal history. Canada experienced one of the fastest-growing civic rights movements internationally as LGBTQ+ advocates used s. 15 of the Charter to gain legal recognition for same-sex couples. Statute after statute was challenged for their discriminatory exclusion of same-sex relationships, and these challenges were virtually all successful.
Most of these challenges occurred at the provincial level. For example, M. v. H. concerned a challenge to the exclusion of same-sex couples from Ontario’s Family Law Act. The challenge went to the Supreme Court of Canada, which agreed that the statute was discriminatory and gave the government six months to amend it.
Through cases like M. v. H. and others, the federal government knew that its laws, such as the Immigration Act and Income Tax Act, were similarly vulnerable to challenge.
In 2000, the federal government passed the Modernization of Benefits and Obligations Act, in order comply with the implications of M. v. H. This law amended all federal laws, with the exception of the Immigration Act, to entitle same sex couples to equal treatment with opposite sex couples. The Immigration Act was not amended at this time because the government was already halfway through the process of updating the entire immigration regime.
In the consultations leading to the Immigration and Refugee Protection Act (IRPA), LGBTQ+ organizations EGALE Canada and LEGIT met with government policy makers to express their concerns regarding the government’s proposals to incorporate same-sex families into Canada’s immigration laws. The government proposed two relationship categories for intimate partners: married spouses (at that time restricted to heterosexual couples) and common-law partners (of the same or opposite sex).
EGALE and LEGIT argued that these categories were not responsive to the realities of international same-sex relationships, because in most situations visa restrictions prevented couples from cohabiting to access the common law definition. And from this advocacy, the conjugal partner definition, requiring neither marriage nor cohabitation, was born. This category required neither marriage nor cohabitation, only a “marriage like” relationship of at least one year.
But policymakers were conscious that officers “in the field” were nervous about the open-ended nature of this proposed relationship category. To meet this concern, they turned history into policy by incorporating a requirement that a barrier to cohabitation must exist in order to qualify as conjugal partners. In fact, the original conjugal partner policy went further in implying that a barrier to marriage should also be identified by applicants.
The result of this requirement was to turn conjugal partners into an inferior or “last option” relationship status. After all, common law partners did not need to demonstrate a barrier to marriage in order to qualify; why should conjugal partners need to demonstrate that marriage or cohabitation was not possible? Marriage and common-law status were placed at the top of the relationship hierarchy.
Thankfully, over the years the Immigration Appeal Division (IAD) has increasingly and consistently recognized that a barrier to cohabitation is not necessary for conjugal partner relationships. The July 4th PDU cites many of these cases, for example:
On a broader administrative law level, it is not uncommon for policy interpretations to unreasonably constrict statutory or regulatory requirements. A more notorious example was the interpretation of “humanitarian and compassionate” factors in s.25 of the Act, which were interpreted in policy for many years as requiring applicants to demonstrate “unusual, undeserved or disproportionate” hardship. This requirement was in place for years before the Supreme Court of Canada in Kathasamy found it an unreasonable policy constraint not supported by law.
The conjugal partner relationship category was introduced in recognition of the diverse reality of romantic relationships. IRCC’s July 4th PDU removes a policy constraint entirely consistent with this recognition. Ultimately, the legal recognition of societal relationships should reflect our shared understanding that the foundation of such relationships is individual choice and sensitivity to the unique personal circumstances experienced by couples.
Michael Battista is Founding Counsel at Battista Migration Law Group and represented LGBTQ+ organizations in consultations leading to the implementation of IRPA.
 2015 SCC 61