Below is an extract from Processing Members of the Family Class, a Citizen and Immigration Canada manual used to process partners like Luna and Annie.
Marriage is a status-based relationship existing from the day the marriage is legally valid until it is severed by death or divorce.
A common law relationship (and, in the immigration context, a conjugal relationship) is a fact-based relationship which exists from the day on which the two individuals can reasonably demonstrate that the relationship meets the definition set out in the Regulations.
The term “conjugal” was originally used to describe marriage. Then, over the years, it was expanded by various court decisions to describe “marriage-like” relationships, ie: a man and a woman in a common law relationship. With the M v H decision in 1999, the Supreme Court of Canada further expanded the term to include same-sex common law couples.
From the M v H decision, the Supreme Court adopts a list of factors that must be considered in determining whether any two individuals are actually in a conjugal relationship.
Based on this, the following characteristics should be present to some degree in all conjugal relationships, married and unmarried:
- Mutual commitment to a shared life
- Exclusive: cannot be in more than one conjugal relationship at a time
- Intimate: commitment to sexual exclusivity
- Interdependent: physically, emotionally, financially, socially
- Permanent: long-term, genuine and continuing relationship
- Present themselves as a couple
- Regarded by others as a couple
- Caring for children (if there are children)
People who are dating, or who are thinking about marrying or living together and establishing a common law relationship are not yet in a conjugal relationship, nor are people who want to live together and “try out” their relationship.
Persons in a conjugal relationship have made a significant commitment to one another. A married couple makes the commitment publicly at a specific point in time via their marriage vows, and the marriage certificate and registration is a record of that commitment.
In a common law or conjugal relationship, there is not necessarily a single point in time in which a commitment is made, and there is no legal document attesting to that commitment. Instead, there is the passage of time together, the building of intimacy and emotional ties and the accumulation of other types of evidence, such as naming one another as beneficiaries of insurance policies or estates, joint ownership of possessions, joint decision-making and financial support of one another.
When taken together, these facts indicate that the couple has come to a similar point as that of a married couple — there is significant commitment and mutual interdependence in a monogamous relationship of some permanence.
A conjugal relationship is characterized by mutual commitment, exclusivity and interdependence, and therefore cannot exist among more than two people simultaneously. The word “conjugal” includes the requirement of monogamy. The requirement of exclusivity or monogamy applies in equal measure to marriage, common law partnership and conjugal partnership. Thus, the common law and conjugal partner categories cannot be used to get around restrictions related to bigamy and polygamy.
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