Kwiatkowski v. Canada (Citizenship and Immigration), 2026 CanLII 54909 (CA IRB) : Conjugal Relationship Can Be Established Despite Lack of Continuous Cohabitation

The Immigration Appeal Division (IAD) considered whether a couple who had not continuously cohabited for one year could qualify as conjugal partners. Although the sponsorship application was submitted under the common-law category, the IAD assessed the relationship under the conjugal category and found that the evidence established a marriage-like relationship. The appeal was allowed.

Key Principle

A conjugal relationship does not require continuous one-year cohabitation. The assessment must be flexible and contextual, particularly where couples live apart in different countries. The IAD relied on the factors from M. v. H., including shared shelter, sexual and personal behaviour, services, social activities, economic support, children, and societal perception. These factors are non-exhaustive, and their weight depends on the circumstances of each relationship.

Background

Richard Kwiatkowski, a Canadian citizen, sought to sponsor Lisandra Perez Moreno, a Cuban citizen. The couple had been in a relationship since 2009 and had two children together. The sponsor regularly travelled to Cuba and lived with the applicant and their children for several months each year.

The application was submitted under the common-law category and was refused because the couple had not cohabited continuously for one year. At the hearing, the sponsor acknowledged that they had never lived together for more than three months at a time but argued that he had mistakenly selected the common-law category instead of the conjugal category.

Court Findings

• IAD Could Assess the Conjugal Category

The IAD held that it could assess the relationship under the conjugal category despite the original common-law classification. Relying on Tabesh, it considered fairness and efficiency and found that requiring a new application would cause unnecessary delay.

• M. v. H. Factors Applied Flexibly

The IAD applied the M. v. H. factors and emphasized that their relevance and weight vary according to the circumstances. The couple’s repeated periods of cohabitation supported conjugality despite their inability to live together continuously.

• Totality of Evidence Established Conjugality

The evidence demonstrated an intimate and exclusive relationship, financial interdependence, shared shelter, two children, family and social integration, continuing commitment, joint activities, and joint decision-making. The sponsor had financially supported the applicant and children for years, purchased their home, and named the applicant as a beneficiary in his will.

Although evidence of emotional connection was relatively sparse, the IAD found sufficient evidence of a continuing commitment to a shared life.

Outcome

The IAD found, on a balance of probabilities, that the couple had been in a conjugal relationship for at least one year. The appeal was allowed, the refusal was set aside, and processing of the permanent residence application was directed to continue.

Case Citation:

Kwiatkowski v Canada (Citizenship and Immigration), 2026 CanLII 54909 (CA IRB)