Daoust v. Canada (Citizenship and Immigration), 2021 CanLII 50661 (CA IRB) : Conjugal Partner Sponsorship Appeal, Holding That an Impediment to Divorce Is Not Required to Establish a Conjugal Relationship

This Immigration Appeal Division decision concerns whether a Canadian citizen who remained legally married to a third party could sponsor her foreign national partner as a conjugal partner. The IAD held that the absence of a divorce, and even the absence of an impediment to obtaining a divorce, did not prevent the sponsorship. The appeal was allowed because the evidence established a genuine conjugal relationship for more than one year.

Key Principle

A person does not need to be divorced, nor must there be an impediment to divorce or marriage, to sponsor a conjugal partner. The central question is whether the parties are genuinely in a conjugal relationship meeting the requirements of the Immigration and Refugee Protection Regulations. The conjugal partner category is not an exceptional category subordinate to marriage; it is recognized alongside spouses and common-law partners within the family class.

The IAD relied on M. v. H., 1999 CanLII 686 (SCC), identifying factors including shared shelter, sexual and personal behaviour, services, social activities, economic support, children, and societal perception. These factors are not mandatory individually and need not correspond perfectly to a traditional marriage.

Background

Linda Diane Daoust, a Canadian citizen, sponsored John Arthur Guidotti, an American citizen, for permanent residence as her conjugal partner. Although Daoust remained legally married to another man, she had been separated from him since 2012 and had not considered divorce necessary. Daoust and Guidotti had been in an exclusive relationship since 2012 and spent substantial periods living together in Canada and the United States.

The application was refused because immigration authorities did not consider the couple to be conjugal partners. On appeal, the Minister argued that the conjugal category should generally be limited to circumstances where the couple faced an impediment to marriage or divorce.

Court Findings

• Lack of Divorce Did Not Bar Sponsorship

The IAD held that Daoust’s continued marriage to another person did not automatically exclude her from sponsoring Guidotti. The Regulations specifically excluded a married sponsor from sponsoring a spouse, but did not impose the same exclusion where the sponsor seeks to sponsor a conjugal partner.

• No Impediment to Marriage Was Required

The IAD rejected the Minister’s argument that conjugal sponsorship requires an impediment preventing marriage or divorce. The definition of “conjugal partner” does not contain such a requirement. The existence or absence of an impediment may be relevant evidence when assessing the relationship, but it is not a legal prerequisite.

• Relationship Factors Supported a Conjugal Relationship

The couple had shared accommodation extensively, maintained an exclusive sexual and personal relationship, participated in numerous social and family activities, travelled together, and were widely perceived as a couple. Guidotti also developed a significant relationship with Daoust’s children and acted as a stepfather figure.

• Financial Interdependence Was Not Essential

Although the couple lacked joint bank accounts and had limited financial integration, the IAD held that not every conjugal factor must be present. Their financial independence was considered understandable given their age, established lives in separate countries, and adult children.

Outcome

The IAD found that Daoust and Guidotti had been in a genuine conjugal relationship since before September 2018 and had satisfied the requirements on a balance of probabilities. The appeal was allowed, the refusal was set aside, and the permanent residence application was directed to continue processing.

Case Citation: 

Daoust v Canada (Citizenship and Immigration), 2021 CanLII 50661 (CA IRB)