Proxy marriage in a time of COVID-19, Part I

During the current pandemic, many couples have had to reschedule or entirely replan their weddings. For Canadian-US couples stuck on opposite sides of the border, one option has been weddings actually held on the border - on private property, aboard boats on a cross-border body of water like Rainy Lake, or in the American side of Peace Arch Park.

Still others have chosen to marry or hold their weddings using telecommunication technology like Zoom. 

As long as the parties to the marriage, the witnesses, and the officiant are all in one place, the fact that some or all of the guests participate remotely is not relevant to Canada's immigration or border laws.

The difficulties arise when any of the key parties are not present in person. This is considered a "proxy marriage" under Canadian law, and does not create a family relationship for the purpose of immigration legislation.

Marriage Under the Act and Regulations

Spouses are defined in the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR).

• Family members are defined in Reg. 1(3) and include both "spouse" and "common-law partner"
• Common-law partner is defined in Reg. 1(1) as requiring co-habitation for a year or under s. 1(2), including a conjugal partner for whom cohabitation is impossible "due to persecution or any form of penal control".
• Conjugal partners are defined in  Reg. 2 as essentially spouses or common-law partners who cannot co-habitate (see "Conjugal Partners", below)

Exclusion of Proxy Marriages

The exclusion of proxy marriages arises out of a 2015 amendment to the IRPR, such that Reg. 5 excludes proxy marriages from the definition of "spouse". There is an exception: "unless the person was not physically present at the ceremony as a result of their service as a member of the Canadian Forces and the marriage is valid both under the laws of the jurisdiction where it took place and under Canadian law".

Canadian Forces Exemption

The relevant manual does not really expand on this definition, stating only:

An exemption exists for members of the Canadian Armed Forces who, due to travel restrictions related to their military service, were not present at their marriage ceremony, whether or not that marriage was conducted and registered in a foreign jurisdiction where it is legally valid.

In the case of a marriage where one or both parties are not physically present, officers should identify the sponsor’s employer on the IMM 5532 (Relationship Information and Sponsorship Evaluation form) to determine whether he or she is a member of the Canadian Armed Forces. If it is confirmed that the sponsor is or was a member of the Canadian Armed Forces, the officer should send a letter requesting submissions or conduct an interview with the applicant to determine whether travel restrictions related to military service caused him or her to be incapable of being physically present at the marriage ceremony. If so, an exemption will be applied and the officer will continue processing the application as a spouse.

Note that the IRPR states that the marriage must be "valid both under the laws of the jurisdiction where it took place and under Canadian law", whereas the manual states "whether or not that marriage was conducted and registered in a foreign jurisdiction where it is legally valid."

There is no consideration of the exemption in reported case law.