Same Sex Couples Sponsorship
Same sex couples sponsorship lawyer in Toronto
Omulique Lawyers assists same sex couples with spousal, common law and conjugal partner sponsorship applications for permanent residence in Canada.
Canadian immigration law does not impose a different sponsorship test based on sexual orientation. Same sex spouses and partners can qualify for Canadian family sponsorship on the same basis as opposite sex couples.
However, the circumstances in which a same sex relationship developed can create unique legal and evidentiary issues. Couples may have lived in countries where their relationship could not safely be disclosed, where same sex marriage is unavailable or illegal, where living together openly was impossible, or where family and community members were unaware of the relationship.
These circumstances can affect how a same sex couples sponsorship application should be documented and presented to Immigration, Refugees and Citizenship Canada (IRCC).
Our Toronto immigration lawyers assist LGBTQ+ couples in Canada and internationally with applications involving marriage, common law relationships, conjugal partnerships, long distance relationships, inability to cohabit, limited public evidence of a relationship, previous immigration history, refusals and other complex circumstances.
Can I sponsor my same sex spouse in Canada?
Yes.
A Canadian citizen or permanent resident can sponsor an eligible same sex spouse for permanent residence in Canada. Canadian immigration rules recognize spouses and partners regardless of gender.
The same fundamental legal requirements apply to same sex and opposite sex couples. The marriage must qualify for recognition under Canadian immigration law, the relationship must be genuine, and it must not have been entered into primarily to obtain immigration status.
IRCC therefore does not require a same sex couple to satisfy a higher legal standard. The practical challenge in some cases is ensuring that the evidence accurately reflects the circumstances in which the relationship developed.
Does Canada recognize same sex marriages performed abroad?
A same sex marriage performed outside Canada can qualify for Canadian spousal sponsorship if the marriage was legally recognized both in the country where it took place and in Canada.
This creates an important issue for couples living in jurisdictions that do not permit same sex marriage.
A couple cannot necessarily become legally married for Canadian immigration purposes simply by considering themselves married or participating in a ceremony that has no legal validity in the place where it occurred.
Where marriage in the couple's country is unavailable, other options may need to be considered, including marrying in Canada or another jurisdiction where the marriage can legally take place, qualifying as common law partners or, in appropriate circumstances, applying as conjugal partners.
What if same sex marriage is illegal in my partner's country?
The fact that same sex marriage is unavailable in a country does not by itself prevent a couple from qualifying for Canadian sponsorship.
The appropriate immigration category depends on the couple's circumstances.
Some couples marry legally in Canada or another jurisdiction where same sex marriage is permitted. Others may already qualify as common law partners because they have lived together continuously in a conjugal relationship for at least 12 months.
In more exceptional circumstances, the conjugal partner category may become relevant where marriage and cohabitation have not been realistically possible.
IRCC recognizes sexual orientation and legal or social restrictions affecting same sex relationships as circumstances that may create barriers to marriage or cohabitation.
The existence of such a barrier must still be demonstrated. Conjugal partner sponsorship is not simply an alternative for couples who prefer not to marry or live together.
Same sex common law sponsorship
Same sex couples can qualify for common law sponsorship in Canada on the same basis as other couples.
A common law partner must generally have lived with the sponsor in a conjugal relationship continuously for at least 12 months.
This can become more complicated where a couple has lived in a country in which openly living as a same sex couple creates legal, social, employment or personal safety concerns.
For example, a couple may have actually shared a residence while keeping the nature of their relationship private. Their lease may identify only one partner. They may not have joint bank accounts, insurance policies, utility bills or other conventional documents commonly associated with cohabiting couples.
The absence of traditional joint documents does not necessarily mean that the relationship did not exist. The application should explain why conventional evidence is limited and use the strongest alternative evidence available to establish the couple's actual history and cohabitation.
Conjugal partner sponsorship for same sex couples
The conjugal partner category can be particularly important in certain same sex sponsorship cases.
A conjugal partner must live outside Canada and have been in a genuine and mutually interdependent conjugal relationship with the sponsor for at least one year. Significant barriers beyond the couple's control must also have prevented them from marrying or establishing the cohabitation required for common law status.
For LGBTQ+ couples, relevant barriers can include laws prohibiting same sex marriage, criminalization or serious restrictions affecting same sex relationships, significant social or cultural consequences, or circumstances that make openly establishing a shared household unrealistic.
The existence of a long distance relationship alone does not establish a conjugal partnership.
A strong application should demonstrate both the nature and seriousness of the relationship and the genuine barriers that prevented the couple from marrying or living together.
What if we cannot marry or live together in either partner's country?
Some same sex couples face barriers to both marriage and cohabitation.
For example, the foreign partner may live in a country where same sex marriage is unavailable and openly living together would create serious legal or social difficulties. At the same time, the foreign partner may be unable to obtain temporary resident status to come to Canada, while the Canadian partner may be unable to realistically establish a shared household in the foreign country.
These circumstances can become relevant when determining whether the couple potentially qualifies as conjugal partners.
However, difficulty obtaining a Canadian visa, geographic separation, employment commitments or the inconvenience of maintaining two households do not automatically establish eligibility for conjugal partner sponsorship.
The circumstances must be assessed as a whole to determine whether genuine barriers beyond the couple's control prevented both marriage and the establishment of a common law relationship.
What if we had to keep our relationship secret?
Not every genuine relationship develops publicly.
Some same sex couples deliberately conceal their relationship from relatives, employers, landlords, government authorities or their broader community because disclosure could result in discrimination, family rejection, loss of employment, harassment, legal consequences or personal safety concerns.
This can create an evidentiary challenge in a sponsorship application because some conventional indicators of a relationship may simply not exist.
For example, there may be few photographs with family members, no public social media posts, no letters of support from relatives, no joint tenancy agreement and limited documentation identifying the couple as partners.
These circumstances should not simply be left unexplained.
The application can explain why the relationship was private, who knew about it, how the couple maintained their relationship and why particular types of conventional relationship evidence are unavailable.
What if our families do not know about our relationship?
Family involvement is one possible form of relationship evidence, but every relationship develops differently.
For some LGBTQ+ applicants, disclosing the relationship to family members may be difficult or unsafe because of religious, cultural or social circumstances.
An application should not attempt to manufacture evidence of family involvement that does not reflect the couple's actual life.
Instead, the evidence should accurately explain the family circumstances and demonstrate the relationship through other available evidence, such as communication records, travel together, financial support, cohabitation, private photographs, shared plans, beneficiary designations, correspondence and evidence from people who do know about the relationship.
The objective is to present the real relationship rather than make the relationship resemble a conventional template.
How do you prove a same sex relationship to IRCC?
There is no special document that proves a same sex relationship.
IRCC considers evidence of the relationship as a whole. Depending on the circumstances, this can include proof of cohabitation, travel together, communication history, photographs over time, joint financial arrangements, transfers of money, shared expenses, insurance coverage, beneficiary designations, gifts, correspondence, evidence of significant events and statements from people who know the couple.
For couples who could safely live openly, conventional evidence of a shared life may be readily available.
For couples who could not, the evidentiary strategy may need to be different.
The important question is not whether the couple has every conventional type of relationship evidence. It is whether the available evidence, viewed together with a credible explanation of the couple's circumstances, establishes a genuine relationship and a coherent relationship history.
What if we have very few photos together?
A limited number of photographs does not automatically mean that a relationship is not genuine.
There can be legitimate reasons why same sex couples have fewer photographs together. They may have avoided taking photographs in public, avoided posting photographs online, travelled discreetly, concealed the relationship from relatives, or lived in an environment where documentation of the relationship created a genuine concern.
The important issue is context.
Where photographs are limited, the application should rely on other credible evidence and, where appropriate, explain why extensive photographic evidence does not exist.
What if we cannot post our relationship on social media?
There is no requirement that a genuine couple publicly announce their relationship on social media.
For some same sex couples, maintaining privacy online can be particularly important where relatives, employers or people in the foreign partner's country do not know about the relationship.
A lack of Facebook, Instagram or other public posts should therefore be considered in the context of the couple's circumstances.
Private communication, call records, travel history, financial evidence and other documentation can be used to demonstrate the development and continuity of the relationship.
What if we could not live together because of our sexual orientation?
An inability to cohabit can be particularly important when determining the appropriate sponsorship category.
Marriage does not require 12 months of previous cohabitation, so legally married couples can potentially qualify for spousal sponsorship even if they have never lived together.
Common law sponsorship, however, normally requires at least 12 consecutive months of cohabitation.
Where a couple could neither marry nor establish common law status because circumstances related to their sexual orientation prevented them from living together, the conjugal partner category may need to be considered.
IRCC recognizes sexual orientation and the non-acceptance of same sex relationships as possible barriers relevant to conjugal partner sponsorship.
Can we get married in Canada and then apply for sponsorship?
Potentially, yes.
Canada permits same sex civil marriage. A foreign national may potentially marry a Canadian citizen or permanent resident in Canada provided the applicable provincial or territorial marriage requirements are satisfied.
Marriage in Canada does not itself guarantee approval of a sponsorship application.
After marriage, IRCC will still assess whether the relationship is genuine, whether it was entered into primarily for immigration purposes, whether the sponsor and applicant are eligible, and whether the applicant is admissible to Canada.
For couples who were previously unable to marry in another country, however, a legally valid Canadian marriage may allow the application to proceed under the spouse category rather than requiring the couple to establish common law or conjugal partner status.
What if one partner previously hid their sexual orientation from IRCC?
Previous immigration applications should be reviewed carefully.
A person may previously have submitted a visitor visa, study permit, work permit, refugee, permanent residence or other immigration application containing information about marital status, relationships or personal history.
Where information in a new sponsorship application appears inconsistent with information previously provided to Canadian immigration authorities, the discrepancy may require explanation.
This can be particularly sensitive where an applicant previously concealed a same sex relationship because of privacy, family, cultural or safety concerns.
The explanation must be truthful and carefully address the actual immigration history. Sexual orientation does not eliminate the obligation to provide truthful information to IRCC, and material discrepancies can create serious immigration consequences.
What if one of us was married to someone of the opposite sex before?
A previous opposite sex marriage does not prevent a person from later being sponsored by a same sex spouse or partner.
People's relationship histories and personal circumstances differ.
However, previous marriages and relationships must be disclosed accurately where required by the immigration forms. A previous marriage must also have legally ended before a subsequent marriage can qualify as a valid marriage.
Where the history may appear unusual or potentially inconsistent with previous immigration records, it can be helpful to provide sufficient context so that the chronology is clear.
What if our relationship started online?
Many international same sex relationships begin online, particularly where opportunities to meet openly are limited.
Meeting through a dating application, social media platform or online community does not make a relationship less genuine.
IRCC will nevertheless consider how the relationship developed after the initial contact.
Relevant evidence can include the history of communication, video and telephone calls, visits, travel together, financial support, knowledge of each other's lives, involvement with friends or family where possible, and plans for a shared future.
Rather than submitting thousands of pages of messages, representative evidence can be organized chronologically to demonstrate the development and continuity of the relationship.
Long distance same sex relationships
Long periods of physical separation are common in international sponsorship cases.
For some same sex couples, separation can be particularly difficult to avoid because one partner cannot obtain a visa, the couple cannot safely establish a household in the foreign partner's country, or neither partner can realistically relocate before permanent residence is approved.
A long distance relationship is not automatically a weak relationship.
However, the application should clearly demonstrate how the relationship was maintained during periods apart, the efforts made to see each other, the reasons for separation and the couple's plans to establish their life together.
Can IRCC refuse a same sex couples sponsorship application?
Yes. Same sex sponsorship applications are subject to the same immigration requirements as other spouse and partner applications.
An application may be refused if IRCC is not satisfied that the relationship meets the applicable legal definition, concludes that the relationship is not genuine or was entered into primarily for immigration purposes, determines that the sponsor is ineligible, finds the applicant inadmissible, or identifies another legal ground for refusal.
The fact that a relationship is same sex is not itself a ground for refusal.
Where the relationship developed under unusual or difficult circumstances, the application should ensure that those circumstances are explained rather than leaving an officer to interpret gaps in the evidence without context.
Same sex couples sponsorship refusals and appeals
A refusal should be reviewed based on the officer's actual reasons rather than assumptions about why the application was unsuccessful.
Depending on the case, concerns may relate to the genuineness of the relationship, contradictory evidence, insufficient documentation, eligibility, admissibility or another immigration issue.
Where a right of appeal exists, the sponsor may be able to appeal a Family Class sponsorship refusal to the Immigration Appeal Division.
In other circumstances, the appropriate response may involve a new application or an application for judicial review in Federal Court.
The appropriate strategy depends on the reasons for refusal and the immigration category under which the original application was processed.
Same sex couples sponsorship and privacy
An immigration application necessarily requires disclosure of personal relationship information to IRCC.
At the same time, evidence should be selected for its relevance rather than simply because it is private or intimate.
A strong application does not require a couple to overwhelm the file with highly personal communications. Representative evidence can often establish the development and continuity of the relationship while preserving appropriate boundaries.
The objective is to provide enough credible evidence for IRCC to understand the relationship and make the required legal assessment.
Why same sex sponsorship cases can require a different strategy
The legal test is the same, but the available evidence may not be.
A couple who has always been able to live openly may be able to produce a marriage recognized in their home country, family wedding photographs, public social media posts, a joint lease, joint accounts and extensive evidence showing that friends and relatives recognize them as a couple.
A same sex couple from a country or community where their relationship could not safely be disclosed may have none of those things despite having maintained a genuine relationship for years.
That distinction matters.
The purpose of the application is not to force every relationship into the same evidentiary model. It is to demonstrate, through the evidence that realistically exists, how the relationship began, developed and became mutually committed, while explaining significant gaps or unusual circumstances.
This is particularly important where legal restrictions, social hostility, family circumstances or concerns about disclosure have shaped the couple's relationship history.
Our same sex couples sponsorship services
Omulique Lawyers assists with same sex spousal sponsorship, common law sponsorship and conjugal partner sponsorship in Toronto and throughout Canada.
Our work includes determining the appropriate sponsorship category, assessing sponsor and applicant eligibility, reviewing previous immigration history, identifying potential evidentiary concerns, preparing and reviewing IRCC forms, organizing relationship evidence, preparing legal submissions where appropriate, submitting the application, communicating with IRCC, and representing clients throughout the application process.
For cases involving limited conventional relationship evidence, inability to cohabit, a relationship that could not safely be disclosed, previous marriages, immigration inconsistencies or other unusual circumstances, we focus on explaining the context and presenting the evidence as one coherent relationship history.
Why hire a lawyer for same sex couples sponsorship?
Many same sex sponsorship applications are legally straightforward and do not require a different immigration process.
Others involve circumstances that do not fit neatly into a standard sponsorship application.
The couple may have been unable to marry where they lived. They may have been unable to cohabit. Their relationship may have been hidden from family members. Conventional joint documents may not exist. One partner may have previously described their personal circumstances differently in an immigration application. The couple may need to determine whether they qualify as spouses, common law partners or conjugal partners.
In those cases, the important work is identifying the legal category and evidentiary issues before the application is submitted and ensuring that IRCC receives a clear explanation supported by appropriate evidence.
Contact us today!
We reply within 1 hour⏱️
416-704-0779 ☎️
