Haer v. Canada (Citizenship and Immigration), 2020 FC 530 : Genuine Conjugal Relationship Cannot Be Rejected Based on Speculative Inferences

Haer is an important Federal Court decision concerning conjugal partner sponsorship, particularly the assessment of exclusivity where the sponsor remains legally married to a former spouse. The Court held that the IAD unreasonably relied on a historical sexual encounter, a joint bank account, and the absence of divorce to conclude that the sponsor’s conjugal relationship was not exclusive.

Key Principle

A sponsor does not have to divorce a former spouse in order to sponsor a conjugal partner. Remaining legally married may be a relevant factor when assessing the nature of the new relationship, but it cannot automatically establish that the sponsor remains in an ongoing conjugal relationship with the former spouse.

The assessment must consider the overall evidence and the M v H/Molodowich factors, including shared shelter, sexual and personal behaviour, social activities, economic support, children and societal perception. Not every factor must be present, and the factors may exist to varying degrees.

Background

Mr. Haer sought to sponsor Ms. Alghamdi as his conjugal partner. He had separated from his wife in June 2011 but remained legally married to her. He had four children with his wife and maintained a joint bank account with her for purposes of supporting the children.

The IAD accepted that Mr. Haer and Ms. Alghamdi were in a genuine and bona fide relationship, but concluded that the relationship was not sufficiently exclusive because Mr. Haer had not established that his relationship with his wife had ended.

The IAD relied primarily on three circumstances: a sexual encounter between Mr. Haer and his wife in 2011, their continuing joint bank account, and the fact that Mr. Haer had not obtained a divorce.

Court Findings

• Historical sexual encounter was insufficient

The Court found it unreasonable to rely heavily on a single sexual encounter seven years before the IAD hearing as evidence of an ongoing relationship with the former spouse. The relevant question was whether an ongoing relationship existed at the time of the IAD hearing, not whether the former relationship could theoretically be revived.

• Joint bank account did not establish an ongoing conjugal relationship

The joint account was maintained for support payments for the wife and children. The Court held that a joint account can exist between separated spouses for financial-support purposes and does not necessarily demonstrate continuing emotional or conjugal ties. Its significance depends on the surrounding circumstances.

• Divorce was not a prerequisite

The IAD unreasonably suggested that Mr. Haer should obtain a divorce and then marry Ms. Alghamdi. The Court emphasized that the IRPR expressly recognizes spouse, common-law partner and conjugal partner as separate family-class categories. There is therefore no requirement that a sponsor divorce before sponsoring a genuine conjugal partner.

The Court cautioned that requiring someone to alter their personal relationship solely to strengthen an immigration application could itself create concerns under IRPR s 4(1)(a).

• Overall assessment of the evidence was required

Although individual concerns may sometimes cumulatively support an adverse conclusion, the IAD’s cumulative assessment was unreasonable because each of its principal grounds was flawed. The IAD also failed to adequately consider the evidence supporting the genuine conjugal relationship, including the couple’s cohabitation and their child together.

Outcome

The Federal Court allowed the judicial review, set aside the IAD’s decision, and returned the matter to the IAD for redetermination. No question was certified.

Practical proposition: Haer is particularly useful for arguing that continued legal marriage to a former spouse does not, by itself, defeat a conjugal-partner application. The decision requires immigration decision-makers to assess the actual nature of the relationships and the totality of the evidence, rather than treating divorce, a historical sexual encounter, or a support-related joint account as determinative.

Case Citation:

Haer v. Canada (Citizenship and Immigration), 2020 FC 530 (CanLII)