Wegner v. Canada (Citizenship and Immigration), 2021 CanLII 81280 (CA IRB) : An Impediment to Marriage or Cohabitation Is Not Required to Establish a Conjugal Relationship

This Immigration Appeal Division decision concerned a sponsorship application in which the appellant sought to sponsor the applicant as her conjugal partner. The visa officer refused the application because the parties had not demonstrated a situation beyond their control preventing them from marrying or living together as common-law partners.

The IAD rejected the officer’s approach. It held that the parties were not required to demonstrate a barrier preventing marriage or cohabitation in order to establish a conjugal relationship. Instead, the assessment must focus on the established conjugal relationship factors, considered flexibly according to the circumstances of the particular case.

Key Principle

An impediment to marriage or common-law cohabitation is not a prerequisite for establishing that a couple are conjugal partners.

The proper assessment considers the factors identified in M. v. H., including shared shelter, sexual and personal behaviour, domestic services, social activities, economic support, children, and societal perception. The relevance and weight of those factors vary according to the circumstances of each relationship.

Although the reasons why a couple has not married or cohabited may be relevant to assessing the nature of their relationship, the absence of a barrier does not, by itself, prevent a finding of conjugal status.

Background

The appellant, Susan Jane Wegner, was a Canadian citizen who had lived in the Edmonton area and had recently retired after a lengthy career as a schoolteacher. She met the applicant, Ramon Jimenez Olivo, a citizen of the Dominican Republic, while vacationing there in 2008. After returning to Canada, she proposed that they begin a relationship and subsequently travelled regularly to the Dominican Republic during school breaks to spend time with him.

The appellant submitted a conjugal sponsorship application in December 2018. The application was refused because the officer concluded that the parties had not demonstrated a situation beyond their control preventing them from marrying or living together as common-law partners.

The appeal record contained nearly 1,600 pages of evidence documenting a relationship extending over approximately 12 years, including continuous visits, communication, shared shelter and financial support.

Court Findings

• The Officer Applied the Wrong Legal Criteria

The IAD found that the refusal focused improperly on whether there were barriers preventing the parties from marrying or living common-law. The correct criteria were the M. v. H. factors used to determine whether a conjugal relationship existed.

• The Absence of a Barrier Does Not Defeat Conjugal Status

The IAD accepted that the parties could have married and that the appellant had personal objections to marriage. Although her inconsistent explanations affected her credibility to some extent, this did not outweigh the overwhelming evidence of a lengthy conjugal relationship.

• The M. v. H. Factors Must Be Applied Flexibly

The parties had no children and did not intend to have children, but the IAD found that they otherwise met the M. v. H. criteria to an overwhelming degree. They had maintained a committed and exclusive sexual relationship for more than 12 years and were recognized by family and the community as a committed couple.

• Limited Continuous Cohabitation Was Not Determinative

Although the parties had never lived together for more than two consecutive months, they had maintained shared living arrangements in the Dominican Republic since 2012. The appellant spent nearly all of her non-working time there with the applicant. The evidence also established shared shelter and substantial financial support.

• The Totality of the Evidence Established a Genuine Conjugal Relationship

The IAD found credible evidence of shared shelter, financial interdependence, social and family recognition, long-term commitment, and emotional attachment. The purpose of the sponsorship was to allow the parties to live together permanently in Canada. The IAD concluded that the relationship was as committed and genuine as any relationship before the tribunal and that the applicant was the appellant’s conjugal partner.

Outcome

The IAD allowed the appeal and found that the applicant was a member of the family class as the appellant’s conjugal partner under s. 117(1)(a) of the IRPR.

Significance: Wegner is a strong authority for the proposition that a couple need not establish an external or uncontrollable impediment to marriage or cohabitation to qualify as conjugal partners. The absence of such an impediment may be relevant context, but the decisive inquiry is whether the evidence, assessed through the flexible M. v. H. factors and the totality of the circumstances, establishes a genuine conjugal relationship.

Case Citation:

Wegner v Canada (Citizenship and Immigration), 2021 CanLII 81280 (CA IRB)