Spouses, Common-Law and Conjugal Partners
One of Immigration, Refugees and Citizenship Canada’s (Immigration Canada) main pillars is the reunification of family members, in particular the spouses and partners of Canadians or permanent residents of Canada.
In order to qualify for sponsorship to Canada, the Sponsor and the foreign national must establish, through documentation, that they are either married, common-law, or conjugal partners:
- Spouses: those who are in a legally-recognized marriage. Proxy marriages are no longer recognized by Immigration Canada
- Common-law partners: those who can demonstrate that they have shared a common place of residence and cohabited in a marriage-like relationship for at least 12 consecutive months
- Conjugal partners: those who would normally apply as married or common law partners but are unable to live together continuously for one year, due to circumstances beyond their control, such as immigration barriers, religious reasons, marital status, or sexual orientation. In most cases, the foreign national is also not able to marry their sponsor and qualify as a spouse. In all other respects, the couple is similar to a common-law couple or a married couple, meaning they have been in a bona fide (genuine) marriage-like relationship for a period of at least one year
When a Canadian or a permanent resident of Canada agrees to be a Sponsor, they must sign a contract called an undertaking. The undertaking is a promise to provide financial support for their spouse or partner’s basic requirements and those of their dependent children. Basic requirements include food, clothing, shelter and other needs for everyday living. Dental care, eye care and other health needs not covered by public health services are also included. The undertaking guarantees that the foreign national and their dependent children will not have to apply for social assistance. If during the undertaking period the foreign national (or their dependent) applies for and receives social assistance, the Sponsor will be responsible for reimbursing the government for the funds received.
The length of the undertaking varies depending on who is being sponsored:
- For a spouse or common-law partner: the undertaking starts from the day the foreign national secures permanent residence status, and lasts for three years
- For dependent children 22 and older: the undertaking starts from the day the dependent child secures permanent residence status, and lasts for three years
- For dependent children under the age of 22: the undertaking starts from the day the dependent child secures permanent residence status, and lasts for ten years or until the dependent child turns 22 years of age, whichever comes first
Even if the Sponsor’s situation changes an undertaking cannot be cancelled once a foreign national (and/or the dependent children) becomes a permanent resident of Canada. Therefore even if a Sponsor divorces or separates from the foreign national, the undertaking will still remain valid, and the Sponsor is responsible for reimbursing the government if the foreign national (and/or the dependent children) receive social assistance.
There are two programs in which a foreign national may apply for permanent residence through spousal sponsorship:
- Spouse or Common-Law Partner in Canada Class, and;
- Outside Canada Family Class
The Spouse or Common-Law Partner in Canada Class is only available to those foreign nationals who are residing in Canada with their spouse or partner.
The permanent residence process through spousal sponsorship, either through the Spouse or Common-Law Partner in Canada Class or the Outside Canada Family Class is a five stage process:
- Submission of Complete Application: A complete application must be received at Immigration Canada’s Case Processing Centre in Mississauga. Immigration Canada will only process applications that are considered complete. If any document is missing, or if a form is missing information, the package will be returned to the Sponsor for re-submission
- Assessment of Eligibility of Sponsor: Once a complete application is received, Immigration Canada will assess the eligibility of the Sponsor. During this process, Immigration Canada will confirm that the Sponsor:
- Is a Canadian citizen or a permanent resident of Canada;
- Is not in prison;
- Has no history or record of violent crime;
- Is financially sufficient and is not an undischarged bankrupt or in receipt of social assistance for a reason other than a disability;
- Has no record of defaulting on any court-issued support order, previous sponsorship or immigration debt; and
- The foreign national have agreed to the sponsorship, including the undertaking.
- Assessment of Genuineness of Relationship and Review of Permanent Residence Application: The application is then forwarded to the appropriate visa office to assess the genuineness of the relationship and for eligibility for permanent residence:
- For a Spouse or Common-Law Partner in Canada Class application, the application would be processed at the Case Processing Centre in Mississauga
- For an Outside Canada Family Class application, the application would be processed at the Canadian consular office or processing centre responsible for the foreign national’s country of citizenship or lawful residence
- During this stage of the application, an Officer will review the documents submitted in support of the relationship, as well as the foreign national’s own admissibility (specifically that there are no serious medical issues or criminal history). In the event that the documentation provided is not sufficient to satisfy an Officer of the genuineness of the relationship, one may be requested to attend an interview. The interview would be held at the office where the application is in process or at a local Immigration Canada office
- Issuance of Confirmation of Permanent Residence Documents – Once the Officer is satisfied of the genuineness of the relationship, the foreign national will be asked to pay a final government fee (if not already paid), known as the Right of Permanent Residence Fee and the foreign national will be issued a visa (if applicable) and their Confirmation of Permanent Residence documents.
- Landing – After the foreign national’s visa (if applicable) and Confirmation of Permanent Residence have been issued, they will then need to attend an immigration office or port-of-entry to complete the landing process in order to obtain permanent residence.
Pros and Cons – In Canada vs. Outside Canada
Spouse or Common-Law Partner in Canada Class
Pro – Open Work Permit
The primary benefit for a foreign national in applying for permanent residence under the Spouse or Common-Law Partner in Canada Class is that spouses or common-law partners may have the opportunity to work in Canada while they wait for their application for permanent residence to be processed.
Immigration Canada has initiated a program through which “open” work permits may be issued to spouses or common-law partners before the "approval in principle" decision has been made on their permanent residence application. An open work permit authorizes foreign nationals to work in any occupation, and in any region, with limited exceptions.
In order to qualify for a work permit under the Spouse or Common-Law Partner in Canada Class, the foreign national must demonstrate that:
- A permanent residence application has been submitted under the Spouse or Common-Law Partner in Canada Class;
- They reside in Canada at the same address as their Sponsor; and
- They have valid temporary resident status in Canada (as a visitor, student, or worker).
Con – May Hamper International Travel Plans
One of the primary requirements of the Spouse or Common-Law Partner in Canada Class is that the foreign national resides in Canada with their Sponsor during the processing of the application. Therefore if the foreign national chooses to travel outside Canada during the processing of their application, and encounters difficulties upon re-entry and is refused admission into Canada (for example, there is a finding of inadmissibility), the permanent residence application may be deemed abandoned and a refusal will be issued.
Con – No Right to Appeal
In the rare event of a negative decision, there is no right to appeal to the Immigration and Refugee Board. If one receives a negative decision, they can only apply for leave and judicial review at the Federal Court of Canada. At the Federal Court, one cannot provide further evidence. The decision is reviewed only to determine if an error was made based on law or on facts.
Outside Canada Family Class
Pro – Ability to Travel Internationally
As mentioned above, travel outside of Canada while a Spouse or Common-Law Partner in Canada Class is in process may be a risk for the foreign national and the pending Spousal Sponsorship application. Therefore, if the foreign national is interested in being able to travel outside of Canada while the Spousal Sponsorship application is in process — without risk of refusal to the permanent residence application — then the Outside Canada Family Class application may be the better option. With the Outside Canada Family Class application, even if the foreign national is denied entry to Canada for any reason, the Spousal Sponsorship application would continue to be processed.
Pro – Right to Appeal
If the Outside Canada Family Class application is refused, there is a right to appeal the negative decision to the Immigration and Refugee Board. At the Immigration and Refugee Board, one can provide further documentation and oral evidence to substantiate the relationship. The Board Member will review the complete file and additional evidence to make a new determination on the application.
Con – Not Eligible for Open Work Permit
With the Outside Canada Family Class application, the foreign national will not be eligible for an open work permit by virtue of having filed an application for permanent residence.