Rosso v. Canada (Citizenship and Immigration), 2022 CanLII 49188 (CA IRB) : IAD Allows Conjugal Partner Sponsorship After Finding That Long-Distance Partners Satisfied the One-Year Conjugal Relationship Requirement

In Rosso v. Canada (Citizenship and Immigration), 2022 CanLII 49188 (CA IRB), the Immigration Appeal Division (IAD) considered whether a Canadian sponsor and a Cuban applicant had established a genuine conjugal relationship for at least one year before the sponsorship application. The visa officer refused the application on the basis that the couple had not demonstrated circumstances beyond their control preventing them from marrying or establishing a common-law relationship.

The IAD rejected that approach and allowed the appeal, finding that there is no requirement for exceptional circumstances or an impediment to marriage or common-law cohabitation. The central question is whether the evidence establishes a genuine conjugal relationship.

Key Principle

A conjugal partnership is not an exceptional category and does not rank below marriage or common-law partnership. The three relationships identified in s. 117(1)(a)—spouse, common-law partner and conjugal partner—are on equal footing. An applicant therefore does not have to demonstrate that circumstances beyond the parties’ control prevented them from marrying or living together as common-law partners.

The determination instead focuses on whether the relationship is sufficiently “marriage-like”, considering the totality of the evidence and factors such as shared shelter, sexual and personal behaviour, social activities, economic support, children and the parties’ overall interdependence. These factors must be applied flexibly according to the circumstances of the particular couple.

Background

Vincenzo Rosso, a 75-year-old Canadian citizen, applied in April 2018 to sponsor Gisel Mora Alvarez, a 45-year-old Cuban citizen, as his conjugal partner. The applicant’s two daughters were also included in the sponsorship. Their relationship had begun in 2012 and continued for almost a decade by the time of the IAD hearing.

The couple had spent significant periods together in Cuba and Canada. The applicant had travelled to Canada three times, while the appellant made numerous trips to Cuba. The couple had discussed marriage and made efforts to marry in Cuba in 2014, but the marriage did not occur.

The visa officer refused the application without an interview, concluding that the couple had not shown circumstances beyond their control preventing them from marrying or establishing a common-law relationship.

Court Findings

• No Exceptional Circumstances or Legal Barrier Is Required

The IAD expressly rejected the proposition that an applicant must establish an exceptional circumstance or legal impediment preventing marriage or common-law cohabitation. A person may qualify as a conjugal partner even where there is no such barrier.

• Conjugal Partnerships Are Equal to Spousal and Common-Law Relationships

The IAD relied on Haer and Daoust in holding that the Regulations do not establish a hierarchy among spouse, common-law partner and conjugal partner. The existence of an opportunity to marry or establish common-law status does not, by itself, defeat a conjugal-partner application.

• The Relationship Must Be Assessed as a Whole

The IAD considered shared shelter, sexual and personal behaviour, social activities, financial support, assistance between the partners, relationships with children and plans for marriage. Although there were significant gaps in the couple’s visits, the majority of the evidence supported a genuine relationship.

• Strong Financial, Emotional and Social Interdependence Supported Conjugality

The appellant had provided monthly financial support since 2013, including money for groceries, house repairs and other expenses. The couple communicated frequently, maintained a sexual and monogamous relationship, supported one another, interacted with each other’s families and had developed relationships with the applicant’s daughters. The IAD found these factors demonstrated a serious and marriage-like commitment.

• Evidence Must Be Considered in Its Totality

The IAD emphasized that genuine relationships should not be assessed by searching for perfection or isolated inconsistencies. The proper approach is to consider the “big picture”, including the full history of the relationship and its personal, cultural and social circumstances.

Outcome

The IAD found that the couple had established, on a balance of probabilities, a genuine conjugal relationship lasting for many years. Although the gaps in physical visits raised concerns, those concerns were insufficient to overcome the substantial evidence supporting the relationship. The appeal was allowed, the refusal was set aside, and the application was directed to continue processing.

Case Citation:

Rosso v Canada (Citizenship and Immigration), 2022 CanLII 49188 (CA IRB)