Today we run the first of a two-part series on proving to the Canadian immigration authorities that a marriage is genuine.

Dear Mr Brown:

I am a 29-year-old Jamaican woman who recently married a 68-year-old Canadian male in Jamaica. He plans to file for me to join him in Canada and we are in the process of preparing the paperwork. I have three children who will be going with me as well. The problem is that my husband seems anxious about the application because he thinks that it will appear that we are in a business marriage. How can someone judge whether our relationship is real? We met each other through a mutual friend over a year ago when he visited Jamaica. We really love each other. I have always been attracted to older men. Can our age difference really prevent us from living together in Canada as a family?

— MT

Dear MT:

Although I understand the premise of your position that a marriage should not necessarily be judged by others based on the sole factor of age, please be advised that for Spousal Sponsorship, the onus is on you (and your husband) to provide sufficient evidence to satisfy the immigration officer that your relationship is genuine. In fact, I will go further and state that is critical for you to establish a genuine relationship. An immigration officer would not use your significant age gap as the only factor in determining whether your marriage is genuine. However, the gap is definitely a factor to be considered along with a combination of many other factors to form an overall impression regarding whether your marriage is genuine.

Marriage of convenience

You used the term ‘business marriage’. The term used in Canadian immigration law is ‘marriage of convenience,’ which is defined as a marriage that is not genuine and was entered into primarily for the purpose of acquiring status in Canada, ie, to achieve permanent resident status as a member of the family class at the time of entering into the marriage.

The key words are ‘not genuine’ and ‘primarily.’ For emphasis, a finding of bad faith can involve either a finding that the marriage is not genuine or that the marriage was entered into primarily for the purpose of immigration. As such, there are two elements to consider, namely: genuineness of the marriage and the purpose of the marriage. Should an immigration officer find a lack of genuineness or an improper purpose of the marriage, you will be found not to be a member of the family class of your husband and will not be able to become a permanent resident of Canada.

The role of the immigration officer

The immigration officer’s role in this context is to review and comment on the evidence in order to determine, on a balance of probabilities, the genuineness of the couple’s relationship. The officer needs to investigate the existence of the following factors: a significant degree of attachment, both physical and emotional; an exclusive relationship; a mutual and continuing commitment to a shared life together; and an emotional and financial interdependency.

All of the circumstances surrounding the marriage are examined by the officer. The decisions must be reasonable, based on appropriate factors which fall within the range of acceptable outcomes which are defensible. In doing so, the officer may reasonably consider both the positive and negative factors in the application. The officer is required to provide you with the reasons for a final decision, rather than the reasons as to how he or she arrived at a certain decision.

Conjugal relationship

A conjugal relationship is one of some permanence, in which individuals are financially, socially, emotionally, and physically interdependent. There must be a certain level of mutual commitment to a shared life, which is intimate, exclusive and monogamous. You must subjectively present yourselves as a married couple, and be objectively regarded by others as a couple.

A married couple makes the commitment publicly at a specific point in time via their marriage vows and ceremony. The marriage certificate and registration is a record of that commitment, as opposed to common-law relationship in which the passage of time may establish such factors. By comparison, people who are dating or who are thinking about marrying or living together and establishing a common-law relationship are not yet in a conjugal relationship.

There are several factors that are considered in determining whether you and your husband are actually in a conjugal relationship. The weight assigned to these factors will vary according to the circumstances of each case, which include:

* shared shelter and sleeping arrangements;

* sexual and personal behaviour, such as: fidelity and commitment;

* sharing household chores;

* social activities and conduct as a couple in the community and with family;

* the societal perception of individuals as a couple;

* economic support, financial arrangements, and property ownership; and

* attitude and conduct concerning children, if applicable.

For further information, visit jamaica2canada.com.

Antonn Brown, BA, (Hons), LLB, MSc, RCIC, is an immigration counsel, education agent and managing director of JAMAICA2CANADA.COM —a Canadian immigration & education firm in Kingston. Send questions/comments to jamaica2canada@gmail.com