By Attorney Henry Moyal

SAME SEX RELATIONSHIPS GIVEN EQUAL TREATMENT IN CANADA

Q. I am a permanent resident and I want to sponsor my spouse. We are in a same relationship that started back in the Philippines. As our union is not recognized in our home country, is our relationship valid in Canada even if we only hold Philippine citizenship? If we decide to marry in Canada will the marriage be valid in Canada and/or the Philippines? And finally, if I want to sponsor her for permanent residence in Canada what is the difference between filing the application inside vs. outside of Canada?

A. You have asked several questions, so let’s take this one step at a time and break down the issues. Firstly, same sex relationships are valid in Ontario and are given equal treatment regardless of your citizenship. A same sex couple can marry and obtain a marriage certificate just like a heterosexual couple. As this is not possible to be done in the Philippines, I do not believe that marriage will be recognized in the Philippines. Secondly, if you are thinking about sponsoring your spouse then you are correct in stating that you have the option of filing the application inside or outside of Canada. As an aside, it should be noted that you are able to sponsor your spouse as a common law partner if you wish and if you qualify. In other words, you do no not have to marry and the application can be filed in the exact same way under the common law partner category. A common law partner is someone who is in a “marriage like” relationship with another person and living together for at least one continuous year.

There are some key differences to filing a spousal application from inside vs. outside of Canada. If a person files the application outside of Canada if does not necessarily mean that the applicant must leave Canada. In other words, it is possible for an applicant to remain physically in Canada while the application abroad is in process. However, the applicant must be aware that since the file is abroad then if there is an interview scheduled they will require you to attend the interview in that country. A sponsorship application filed abroad generally is faster and if refused there is an automatic right of appeal. 

If an application is filed inside of Canada, the applicant will in most cases obtain visitor extensions time after time until the end of application. Applications from inside of Canada take longer and have no automatic right to appeal. However, many decide to use the inside of Canada application to ensure that the applicant can remain in Canada and no traveling is required if an interview is convoked.

Q. I’m a registered nurse living in New Jersey. I want to file an application to immigrate to Canada but do not want to apply alone. I have a same sex partner who is in the USA with no status. Can I include him on the application? Will the fact that he is illegal be a problem? Will they scrutinize our relationship?

A. You are able to include your partner on the application if you have lived together for over one year. You will of course need to show proof of your relationship. The fact that he is out of status should not be a problem. From the information given, you will be the main applicant and he is the dependant. It should work out fine.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

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