Lovers who are looking for creative, digital ways to settle down in or bring their significant others to Canada should be warned: Not all is fair in love and the war on COVID-19.
Although some jurisdictions in the United States, including New York and California, have eased legal marriage requirements amid COVID-19 lockdowns to allow for “virtual” marriage ceremonies, these procedures may be only a band-aid “I do”. If two people are married virtually and fail to be in each other’s physical presence, this is not enough to be recognized as a legally valid spouse under Canadian immigration law, according to rules in the Immigration and Refugee Protection Regulations.
I (DO), ROBOT?
Virtual marriages include various forms of ceremonies in which the officiant, the couple, and/or the witnesses or other guests participate in the service through audio-visual tools and programs such as Zoom or FaceTime. But under Canadian law, physical presence matters: Recent court decisions on the validity of marriages show the Federal Court has routinely interpreted “physical presence” as meaning a couple’s physical presence at the marriage ceremony itself.
This could have consequences for a couple’s immigration plans. A route to permanent residency in Canada by sponsoring a spouse, for instance, could be thwarted by the nature of the virtual marriage if the couple were not physically present at the event.
LOVE AND TRAVEL RESTRICTIONS WILL TEAR US APART
Under strict travel limitations provoked by COVID-19, a couple’s physical presence may be hard to achieve.
Since March 2020, the Canadian government has imposed strict travel restrictions at the Canada-U.S. border, as well as for other international travel. These rules include a blanket ban on discretionary or optional travel. Imposed by legal tools called Orders-in-Council (authorized under the Quarantine Act), they have placed stubborn legal barriers between cross-border, long-distance couples and those claiming to be a common-law partner of a Canadian at the border.
The restrictions at the U.S. border have eased somewhat to allow a non-Canadian “immediate family member” of a Canadian citizen or permanent resident to enter Canada, subject to certain criteria. An example of such a family member includes the spouse of a Canadian. However, if a person fails to be recognized as a legally valid spouse, they cannot rely on the exception for spouses.
A recent Green and Spiegel blog post on this topic further explains how the immediate family member exemption operates.
BEWARE LONG-TERM CONSEQUENCES OF DIGITAL DECLARATIONS OF LOVE
A virtual marriage ceremony recognized and performed in accordance with the local law in another country does not guarantee that marriage is valid in Canada. A marriage must be valid in both the jurisdiction in which it occurred and under Canadian law.
The Regulations state that a foreign national is excluded from being recognized as a spouse if:
- The foreign national is less than 18 years old;
- The foreign national or the other partner was already married to another person at the time of the marriage;
- The partner has lived apart from the foreign national for at least one year while in a common-law relationship with another person; or
- At the time of the marriage ceremony, one or both spouses were not physically present (subject to an exception for Canadian Forces members).
Those restrictions upon a legal recognition of a “spouse” could later spell trouble for a Canadian citizen or permanent resident who later wishes to sponsor the non-Canadian under a spousal sponsorship application. This does not, on its own, permanently bar the foreign national from being sponsored, but it could delay the process while the parties attempt to legalize their marriage or apply for sponsorship under a different category (as a common-law or conjugal partners, for example).
If you have any questions about how your Canadian immigration plans could be affected by a virtual marriage, please contact our office.
