Section 2 of the Immigration Regulations, defines spouse as:
"spouse", with respect to any person, means the party of the opposite sex to whom that person is joined in marriage;
"Marriage" means the matrimony recognized as marriage by the laws of the country in which it took place. By definition this excludes common-law relationships.
"Opposite sex" means one man and one woman. By definition this excludes same sex couples.
Clearly, this section violates section 15 of the Charter of Rights and Freedoms, as it discriminates against same sex couples and common-law couples from sponsoring each other. However, Citizenship and Immigration Canada recognizes this fact and has officially allowed through humanitarian and compassionate grounds, the reunification of common-law couples, and same-sex couples.
The sponsored spouse must satisfy a visa officer that their relationship to their Canadian or permanent resident sponsor is bona fide, and not a marriage of convenience.
Section 4(3) of the Immigration Regulations, states that
The family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse.
If the sponsored spouse is unable to convince the visa officer that the marriage was bona fide, that is entered into primarily for love, the visa officer will refuse to issue the sponsored spouse an immigrant visa. As visa officers make determinations based on their western ethnocentric experiences, this presents difficulties for couples with different cultural backgrounds, especially in countries where arranged marriages are common and where public affection is not displayed (eg. India and China) . It is extremely important to note that the vast majority of appeals from a visa officers decision is overturned by the Immigration Refugee Board (Appeals Division). Clearly, this is an area where direct and systemic discrimination exists in the Canadian Immigration System.
A married couple should keep documented proof that the relationship is bona fide. Examples of evidence in support of the bona fides of the relationship are correspondence, telephone bills, invitations, pictures or video tapes of the wedding and receptions. In our experience we have found that the more elaborate the wedding, the less likely the visa officer will question the marriage. Further, the bona fides of the marriage may be questioned because of the sponsored spouse's lack of knowledge about the sponsor or the sponsor's family. Details of an arranged marriage should be provided.
Exempt from Low Income Cut Off Requirements
The sponsorship of a spouse is exempt from any financial requirements.
Applications can be Submitted within Canada
The spouse of a Canadian citizen or permanent resident, who is in Canada, can submit an application for sponsorship and permanent residency within Canada. In other words, the combined applications will be processed by the Case Processing Centre in Vegreville, Alberta, and, if approved, the spouse will be landed from inside Canada. The sponsored spouse is not required to apply through an overseas visa office.
This alternative of inland processing is based on "humanitarian and compassionate grounds" on the assumption that spouses would endure hardship if they were separated for long periods of time while an application was processed at a visa office.
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