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Immigration for Non-Canadian Same-Sex Couples

Neither you or your spouse/partner are citizens or permanent residents of Canada. You may have been able to live freely as a same-sex couple before coming to Canada or you may have had to live apart. You may be citizens of the same or of different countries but you want to immigrate to Canada together. If you are each from different countries you may have explored and exhausted the options of immigrating to each other's country. The only other possible option is to find a country where both of you can immigrate and start a new life together. For many couples this predicament has led them to consider immigrating to Canada. Equality rights for LGBTQ persons in Canada is among the most advanced in the world. The Canadian Charter of Rights and Freedoms that is part of the Constitution of Canada guarantees in Section 15 “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination”. The courts have used Section 15 to recognize LGBTQ equality rights. The Canadian Human Rights Act and equivalent provincial and territorial human rights legislation prohibits discrimination on the basis of sexual orientation. On July 20, 2005, Canada became the fourth country in the world, and the first non-European country, to legalize same-sex marriage nationwide with the enactment of the Civil Marriage Act which provides a gender-neutral marriage definition. Court decisions, starting in 2003, had already legalized same-sex marriage in eight out of ten provinces and one of three territories, whose residents comprised about 90% of Canada's population. Most legal benefits commonly associated with marriage had been extended to same-sex couples who had cohabited for a year or longer since 1999. Same-sex adoption is legal in all provinces and territories under varying rules. Discrimination on the basis of sexual orientation in employment, housing, and public and private accommodations is banned nationwide while discrimination on the basis of gender identity and expression varies by province and territory. Transgender people are allowed to change their legal gender in all provinces and territories under varying rules (see the page on Transgender and Immigration for more information).

Canada allows not only the sponsorship of spouses and common-law partners of Canadian citizens and permanent residents but also recognizes the spouses and common-law partners of qualifying immigrants as dependents. If one partner qualifies for immigration on his or her own merits, that person could apply as the principal applicant and their spouse or common-law partner and any dependent children under 19 years of age can be processed as dependents. The principal applicant is assessed whether they meet the eligibility criteria for the category they are applying for but dependents are only required to meet medical, criminal and background security requirements for admissibility.

“Common-law partners” are defined as persons in a conjugal relationship where the partners have cohabited for at least one year. “Conjugal” means marriage-like. There is no definition of conjugal in the legislation. It is determined by an overall assessment of your relationship. An exception to the one-year cohabitation rule may be made for couples living in the same country unable to cohabit because of persecution or penal sanctions in that country.

If the two partners are unable to marry or have a year of cohabitation because of immigration barriers, the partner who qualifies for immigration could immigrate alone and then sponsor their partner for immigration as a “conjugal partner” after the qualifying partner has become a permanent resident of Canada. The “conjugal partner” category is an alternative option for Canadian citizens or permanent residents to sponsor persons who they are unable to marry and cannot not meet the definition of common-law partners because they do not have one year of cohabitation. They must prove that their relationship has been conjugal at least one year before the date the sponsorship application is filed. Canada is frequently referred to as one of the most gay-friendly countries in the world. Wouldn’t you like to live in a country where your human rights and relationship are respected?

The information presented is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice.

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