Most terms or phrases of legal significance are defined in statutes and their complementary regulations. However, when they are not, we must look to the courts for guidance. This is as true for Canadian immigration law as in other areas of law.

A common matter to come before immigration officials in Canada and in Canadian embassies and consulates abroad are applications for spousal sponsorships of foreign nationals to become Permanent Residents (PR) of Canada, a crucial prerequisite for eventually becoming citizens. Definitions of key phrases in determining the legal status of intimate partners for sponsorship purposes and the defining criteria of such relationships were before an immigration tribunal in Tang v Canada (Citizenship and Immigration), 2021 CanLII 141695 (CA IRB), <https://canlii.ca/t/jm5x9.

 An Immigration Appeal Division tribunal had to consider the appeal in 2021 of a Chinese citizen’s application for PR status as the conjugal partner of William Tang, a 63-year-old naturalized Canadian citizen. Mr. Tang is originally from China and arrived in Canada as an immigrant in 1996. An application for PR status for his Chinese wife was denied after a visa officer had determined that the couple failed to meet the definition of conjugal partners for immigration purposes. Consequently, Mr. Tang appealed.

There are three types of long-term relationships deemed to have legal status for spousal sponsorship purposes:

• Spouse: legally valid marriage in country of origin and under Canadian law
• Common-law partner: at least one year of uninterrupted cohabitation in a conjugal relationship
• Conjugal partner: conjugal relationship for at least 12 months (permanence and commitment similar to marriage or common law) where couple if prevented from living together due to immigration barriers, religious reasons, sexual orientation, or marital status (e.g., married to someone else, where divorce is not possible in country of origin)

However, both the Immigration and Refugee Protection Act  and the Immigration and Refugee Protection Regulations are silent regarding the definition of “conjugal relationship.”  So, immigration officials have had to look to the courts for direction. The generally accepted criteria for establishing a “conjugal relationship” have been set out by the Supreme Court of Canada in M. v. H., 1999 CanLII 686 (SCC), [1999] 2 SCR 3, <https://canlii.ca/t/1fqm4. These criteria are:

• Shared shelter: Do the partners live together as a couple under the same roof?
• Sexual and personal behaviour: Is the partners’ relationship exclusive and evidenced by emotional, intellectual, and physical interaction? Are the partners committed to each other?
• Services: Are domestic and other family-type responsibilities shared, and is there evidence of mutual support, especially in time of need?
• Social activities: Do the partners share time together or participate in leisure activity together? Do they have relationships or interaction with each other’s respective families?
• Economic support: Are the partners financially dependent or interdependent? Have the partners joined, to some extent, their financial affairs (for example, as in joint-ownership) or arranged them to reflect their ongoing relationship (for example, naming the other partner beneficiary in an insurance policy or will)?
• Children: What is the partners’ attitude and conduct towards children in the context of their relationship?
• Societal perception: Are they perceived or treated as a couple by society?

In the Tang appeal, the tribunal had several pieces of contradictory evidence to consider, none of it reflecting positively on Mr. Tang’s position. First of all, evidence showed that his life over the past two decades was marked by infidelity and overlapping relationships that included four marriages. Indeed, this was the second sponsorship application for the couple; the first had also been refused but for different reasons. In the current appeal, the tribunal agreed that although the couple did have an intimate relationship of some kind for a few years, there was insufficient evidence to establish there had been an exclusive conjugal relationship.

Mr. Tang was leading a double life, starting an intimate relationship with the Applicant in 2007 in China before moving in together a few months later and remaining with her until 2015, even fathering a  baby with her in 2009 In the meantime, Mr. Tang and his fourth wife had a second son in September of 2008. Throughout this time, Mr. Tang also maintained a marital home with his wife  and their two sons, encouraging his wife’s belief they had a committed, exclusive marriage. Needless to say, the two women were oblivious of each other’s existence.

Mr. Tang left China in 2015. He transferred funds to the Applicant to buy properties to hide money and assets from his wife and also moved money to Canada which he used to acquire rental properties that his wife in China would be unable to access. Mr. Tang moved his sons and daughter to Canada to live with him, then surreptitiously obtained a divorce from his wife in 2016. Friends and family members of Mr. Tang  and the Applicant, along with Mr. Tang’s business associates, wrote letters in support of Mr. Tang and the Applicant. However, the tribunal in looking at Mr. Tang’s pattern of deceitful actions over the years, and in looking at the sporadic and intermittent times he and the Applicant had spent together, concluded that although the couple were intimate on a few occasions, they had not spent a sufficient enough amount of time together in a conjugal relationship as defined by case law, i.e., at least one year without interruption. So, the Applicant was not a member of the family class for purposes of spousal sponsorship.