Toronto
2 min

Same-sex marriage not accepted here

Federal immigration policy trumps provincial marriage licence

IN LIMBO. Peter Bernier of the Lesbian And Gay Immigration Task Force wants Immigration Canada to recognize provincial same-sex spouses. Credit: Nicola Betts

It’s been almost a year since homos won the right to marry in Ontario and British Columbia, but for immigration purposes it’s as though it never happened.



“If there were other government departments that were not recognizing this law, all hell would break loose,” says Peter Bernier of the Lesbian And Gay Immigration Task Force (LEGIT) Toronto. “However, Immigration Canada is not. Very clearly it is not recognizing same-sex marriages.”



Although Canadian queers are eligible to sponsor their same-sex spouses through provisions available to unmarried couples, only opposite-sex couples are eligible for the spousal category.



“In my opinion, they are in contempt of court,” says Bernier about Citizenship And Immigration Canada (CIC). “They really should not be doing this. It’s gross discrimination.”



The CIC’s guides for Canadians who wish to be sponsors currently read, “You can sponsor a person as your spouse if that person is of the opposite sex and married to you.” Another section in the guidelines that addresses married couples where one or both of the partners are transsexual is similarly discriminatory. “A marriage to someone who has had a sex change is recognized for immigration purposes only where the parties are of the opposite birth sex.”



The publishing dates on both these guides are early 2004, “So we can’t say that these are old,” says Bernier, “that they haven’t had a chance to update or anything like that.”



CIC spokesperson Paul Giroux confirms that the guides are up to date. “The Immigration And Refugee Protection Act (IRPA) and Canadian federal law does not recognize same-sex marriage. It’s only in Ontario, BC and Quebec [that same-sex marriage is legal].



Giroux explains that CIC is currently processing family-class applications submitted by same-sex couples within the common-law category if the couple already lives together in Canada and in the conjugal category if they are separated geographically. Giroux says that the rules are the same under these two categories regardless of whether the applicants are in opposite or same-sex relationships. All couples in these categories must demonstrate that they have been in a relationship for at least a year before the Canadian is eligible to sponsor their partner.



However, heterosexual married couples enjoy a significant advantage. “While all couples must prove authenticity of their relationship, under the spouse category they do not have to be together for 12 months,” says Giroux.



Bernier says there is a contradiction between Canada’s immigration law and the CIC regulations. While the IRPA and related regulations utilize gender-neutral language, the law, which is absolute, and CIC regulations, which are an interpretation of the two, follow the federal law in excluding same-sex couples from being termed spouses.



Justice Department spokes-person Patrick Charette says although the provinces have jurisdiction over licensing marriage, the federal government still has the right to define what marriage is for federal purposes. Although the feds chose not to appeal decisions in Ontario, British Columbia and Quebec granting homos the right to wed, the federal definition continues to be the union of a man and a woman until there’s legislation passed that says otherwise. And until that time married homos don’t qualify as spouses where the CIC is concerned.



Bernier wants to know what happens to same-sex couples that are married but don’t fit into the common-law or conjugal categories. “Only when we know for sure they are putting these applications on the shelf and taking longer than usual to process, can anything really be done about it.”



Giroux says as far as he knows, there are no same-sex spousal cases currently in the process at CIC. He recommends that same-sex couples submit their applications based on what categories are currently available to them, regardless of their marital status.