Done deal

After years of debate and controversy, Canada finally has a new immigration policy, which includes new rules for same-sex partners.

It’s mostly good news: You don’t have to live together to be considered a couple. As of Jun 28, Immigration Canada scrapped the one year cohabitation requirement needed for a same-sex partner to enter the country.

The lobby groups Lesbian And Gay Immigration Task Force (LEGIT) and Egale Canada have been fighting to get the one year cohabitation requirement scrapped for years.

“This is a very historic step and on the world-wide scale we’re really just one of a handful of nations that recognizes the rights of same-sex couples to sponsor each other,” says immigration lawyer Michael Battista who worked with Egale Canada to get the legislation changed.

Immigration has added the category “conjugal partner” which requires a couple be in a relationship for a year, without having to live together – which is required to be considered common-law.

“By doing this we will be able to get rid of all the greys on the actual immigration act,” says Denis Coderre, minister of Citizenship And Immigration. “We improved the act because it didn’t fit the reality.

“It’s also very respectful of cultures. There are some countries where homosexuals are persecuted and we had to find a way to bring partners back together when you can’t say that you’re a fiancé, etc.”

Same-sex couples with both partners outside of the country can apply to immigrate to Canada the same as married and common-law partners do – they have to live together for at least a year.

Coderre says these conjugal partners will be exempt from medical inadmissibility criteria like married couples and common-law partners. So an HIV-positive partner in a conjugal relationship cannot be barred from entering the country, as is the case now.

“This is good because it will answer a lot of questions on the same-sex issue,” says Coderre.

One remaining problem is that conjugal relationships are yet another definition of relationship, beyond marriage, common-law and probably even provincial registered domestic partnership definitions. So immigration’s conjugal couples would not be considered a family unit for income tax purposes, so each partner would be treated individually.

On the plus side of the things, because conjugal partners are a part of the family class they can appeal to the Immigration Appeal Division. That appeal process wasn’t available before. Until now, same-sex partners of Canadians have been allowed to immigrate according to the discretion of immigration officers who often made arbitrary decisions with no right to appeal.

Battista believes that the immigration department will not completely get rid of the common-law cohabitation requirement because other areas of federal law (such as the Income Tax Act) rely exclusively on the common-law partner definition. The government would be forced to tinker with the rules in other departments just to match the immigration rules.

“I think they were concerned that if they abandoned it for immigration purposes they would be forced to abandon it for other purposes. It gives people grounds to say under other areas of federal law that cohabitation isn’t necessary.”

“What could happen is that if someone is challenging that definition under the Income Tax Act they can point to the Immigration laws and say, ‘They didn’t need cohabitation for immigration purposes why do they need it for the Income Tax Act?'”