This piece was prepared for the Osgoode Immigration Law Fall 2012 class. The following is not legal advice and should not be treated as such.

In Wiesehahan v Canada (MCI), a Canadian man wanted to sponsor the woman he married in China.  The Board found that the applicants’ marriage was not genuine and had been entered into primarily for the purpose of acquiring some status or privilege under the Act.[1]  In addition to the negative credibility findings, the Board was concerned with consummation of the applicants’ marriage.  It concluded that the explanation for the lack of consummation was not credible.[2]  This played a role in the rejection of their sponsorship application.[3]

The Board and the visa officer revealed their normative perspective by presuming that a sexual relationship is part of every marriage.  The RPD asked for evidence to justify the absence of consummation.  I hope to show that this presumption is not appropriate.  First, I argue that the presumption cannot be justified either by family law or by the immigration manual.  Second, I argue that it creates evidentiary problems and thus should be abolished.

The RPD’s emphasis on consummation cannot to be supported by Canadian family law.  According to family law the requirement of consummation in the analysis of family formation should be minimized if not abolished.  The capacity to consummate is a requirement for a valid marriage in Canada.[4]  It is an old common law principle of nullity that originated in the ecclesiastical courts.[5]  At first glance, family law appears to justify the RPD’s focus on consummation.  However, spouses in Canada are not required to have sexual relations, but it is open for a spouse to invalidate marriage based on incapacity to consummate.  According to Mary Jane Mossman, this is an out-dated requirement that is anachronistic for its normative heterosexual perspective of family formation.[6]  Consequently, courts are reluctant to annul marriages on this basis.  In JG v SSS, Davies J makes this clear when he says, “It is anachronistic at best to adhere to concepts of nullity that were developed in such a different age.”[7]

The Board’s emphasis on the importance of consummation conflicts with the approach in family law.  According to family law, couples are open to have a sexless marriage.  Moreover, because there is a growing reluctance among courts and academics to recognize the requirement of consummation, in the family law context sex is unlikely to be determinative for family formation.  Thus, family law cannot justify the narrow approach to family formation by the PRD.

Immigration officials may argue that they do not have to follow family law principles in all circumstances.  For example, courts operating according to the family law principles are unlikely to grant nullity of marriages that took place for immigration purposes.[8]  However, the Board’s emphasis on consummation is also inconsistent with CIC’s Operation Manual on family class processing (“the guidelines or the manual”).[9]  The guidelines mention sexual relationships in the context of conjugality in two places.  First, the Board is advised to consider commitment to sexual exclusivity.[10]  Second, the definition of conjugality in the guidelines contains a mention of sexual intimacy.[11]

In spite of these references, the guidelines suggest that the Board should not have stressed sexuality but should have considered attachment more broadly.   Sexual relationship is just one of the factors for the Board to consider when weighing the genuineness of a relationship.  The manual lists a number of factors that the Board has to consider in analysing conjugality.[12]   Moreover, the definition of conjugality draws the focus away from sex: “The word ‘conjugal’ does not mean ‘sexual relations’ alone.  It signifies that there is a significant degree of attachment between two partners.”[13]  It appears that instead of approaching the evidence of attachment holistically, the Board placed additional burden on the applicants by presenting consummation as a requirement for the applicants to meet.  The Board found “that the fact that the applicants had not consummated their marriage was a relevant consideration” and the explanations for its lack not to be credible.[14]  Thus, the governmental manual on immigration does not justify the stress on consummation by the PRD.

Asking applicants to justify absence of consummation creates evidentiary concerns.  Evidence of consummation would inevitably invade privacy.  Mossman expresses the same concern with regards to consummation in the family law context.[15]  For this reason the applicants might be reluctant to present evidence of their sexual intimacy.  Shy applicants may feel the urge to avoid the discussion altogether.  Moreover, sexual intimacy may be difficult to prove.  It is not something that can be easily demonstrated with expert or documentary evidence.  Wiesehahan helps to create unsettling precedence.  It permits the Board to continue emphasizing consummation and demand justification for its absence.  Thus, the case may contribute to the failure of other sponsorship applications because of inevitably poor evidence of consummation.  For this reason, consummation should be abolished from the RPD assessments.

This paper intends to draw attention to the problems of stressing consummation in immigration decisions by the RPD.  Such emphasis is not justified by family law or the immigration manual and poses evidentiary problems.  The Board should apply the recommendations of the manual and examine relationships more holistically instead of penalizing applicants for not abiding by the conjugal norms that the Board finds appropriate.

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[1] 2011 FC 656, FCJ No 831 [Wiesehahan].

[2] Ibid at para 23.

[3] Ibid at para 21.

[4] Mary Jane Mossman, Families and the Law: Cases and Commentary (Concord: Captus Press Inc, 2012), 95 [Mossman].

[5] Ibid.

[6] Ibid.

[7] 2004 BCSC 1549 at para 46, 246 DLR (4th) 743.

[8] Iantsis v Papatheodorou, [1971] 1 O.R. 245, 3 RFL 158 (CA) at 164.

[9] Citizenship and Immigration Canada,“OP2 Processing Members of Family Class” (14 November 2006), online: CIC < http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf>.

[10] Ibid at 19.

[11] Ibid.

[12] Ibid at 19-20.

[13] Ibid at 19.

[14] Wiesehahan, supra note 1 at para 23.

[15] Mossman, supra note 4 at 95.