Being a citizen or permanent resident of Canada is a privilege many cherish, but for those who fall in love with someone from another country, being able to share their life in Canada with their partner is paramount. Fortunately, the Immigration and Refugee Protection Act offers a pathway for individuals to sponsor their foreign partners, allowing couples to script their own happy endings in Canada. Immigration laws, however, are anything but a fairy tale. So, let us guide you through the process.
The Two Pathways to Sponsorship
In Canada, one can sponsor their foreign partner under the “Family Class” or under the “Spouse or Common-Law Partner in Canada Class.” Each class has its own rules, so understanding their differences is crucial to selecting the most appropriate alternative.
As the name implies, the “Spouse or Common-Law Partner in Canada Class” is designed for married or common-law couples residing together in Canada, in which case the applicant must have a temporary residence status. Under this class, the applicant can obtain a work permit while waiting for a decision on the application. However, appeals are not available under this class in case of sponsorship refusal.
Sponsorship under the “Family Class” is available inland or outland, but it does not grant the applicant the right to apply for a work permit. Also, note that couples living abroad must show evidence that they will relocate to Canada once the residence is granted. On the bright side, this class allows appeals.
Choosing the Right Pathway
For applicants abroad, the “Family Class” is the only option unless they come to Canada first under a temporary visa to apply inland. Applicants in Canada, though, should carefully consider which pathway to choose. Factors such as the need for a work permit and the strength of the case should inform the decision-making process. For instance, someone who is about to obtain a master’s degree from a designated learning institution and whose sponsorship application has weaknesses may prefer the “Family Class.” They will preserve their right to appeal in case of refusal, and if they wish to remain in Canada while the application is in process, they can apply for a 3-year post-graduation work permit after graduation.
Conjugal Partnership: A Third Relationship Type
Canadian legislation recognizes conjugal partnerships under the “Family Class,” a distinct category from traditional marriages or common-law unions. This is for exceptional cases. A couple can only establish a conjugal partnership when they are in a relationship for more than a year but cannot marry or cohabit for long enough to establish a common-law relationship for reasons beyond their control. This may be the case, for instance, when the couple is living in a country where same-sex relationships are criminalized or they are suffering some form of persecution that impedes their cohabitation.
Sponsorship Requirements
The sponsor, the applicant, and the relationship must meet a stringent set of requirements.
The sponsor must be a Canadian, a permanent resident living in Canada, or a registered Indian, and at least 18 years old. Although no minimal income is required, the sponsor must demonstrate financial capability to support their partner and promise to do so for three years by signing an undertaking.
For married couples, the marriage must be valid under the applicable Canadian legislation and the laws of the country where the marriage took place. For common-law relationships, the couple must have continuously cohabited in a marriage-like relationship for at least one year. Substantial evidence is required to prove both the “marriage-like relationship” and the “one-year cohabitation.”
Barriers to Sponsorship
The applicant must show the absence of certain impediments to the sponsorship. Among other barriers, the sponsor cannot be bankrupt, charged with a serious offence, in default of spousal or child support, or subject to a previous 3-year undertaking to support a previous sponsored partner with whom they are no longer together.
The applicant cannot be inadmissible to Canada. Inadmissibility occurs for multiple reasons, including misrepresentation in previous applications. Having committed or been convicted of a crime inside or outside Canada can also lead to a finding of inadmissibility. However, inadmissibility can sometimes be overturned, including in some cases involving criminality.
Polygamy is not recognized in Canada, so the applicant and the sponsor cannot be in a romantic relationship with a third person. However, if one or both of them are separated from someone else to whom they are still legally married, the couple can still establish a common-law relationship, provided they are no longer involved in a relationship with the previous partner.
Bad Faith Relationship
The couple must show substantial evidence that the relationship is legitimate, which is more complicated than it seems. Most cases of bad-faith marriages do not involve the applicant paying the sponsor to marry and sponsor them. Most cases involve an applicant who, although in a relationship, does not intend to remain married but takes advantage of the sponsor to obtain permanent residence.
Due to that, the circumstances of the relationship may warrant extra caution in the application to show that the applicant’s motives to embark on the relationship are genuine. An example of when caution is required is when the applicant has a history of denied visa applications.
A sponsorship application is a significant milestone in a couple’s journey toward building a shared life together in Canada. While the process may seem daunting, with careful planning, couples can navigate the spousal sponsorship process successfully and end their international love story with “…and they lived happily ever after, in the land of the northern lights”. That said, successful applications require multiple considerations, attention to detail, and strategic thinking.
At ATAC Law Corporation, we are committed to helping our clients achieve their immigration goals. If you’re considering applying for sponsorship and wish to obtain professional assistance, contact us today for expert legal guidance and support.
