Conjugal is an interesting class, and I've wondered about this very question you're facing before. SCC has affirmed that choosing whether to marry is a protected right - that is part of why CIC recognizes common-law relationships for immigration purposes. Here's my understanding of how CIC approaches the various situations two partners may find themselves in:
- Partners are prevented from living together, and prevented from marrying: OK to apply as conjugal partners.
- Partners are able to live together, but prevented from marrying: expected to wait until they have lived together for 1 year, then apply as common-law.
- Partners are unable to live together, but able and willing to marry: expected to marry, then apply as spousal.
- Partners are unable to live together, able but not willing to marry: ???
It would seem to be, that if the choice to marry is protected, then being simply unable to live together continuously long enough to qualify as common-law
should be sufficient to allow you to apply as conjugal partners. The relevant section of
processing manual OP2 mentions the supreme court decision on marriage, but it sort of dodges the issue of whether choice re marriage, combined with impediment to becoming common-law is sufficient. In fact, it's actually somewhat contradictory:
5.45. What is a conjugal partner?
This category was created for exceptional circumstances – for foreign national partners of
Canadian or permanent resident sponsors
who would ordinarily apply as common-law partners
but for the fact that they have not been able to live together continuously for one year, usually
because of an immigration impediment.
In most cases, the foreign partner is also not able to
marry their sponsor and qualify as a spouse. In all other respects, the couple is similar to a
common-law couple or a married couple, i.e., they have been in a bona fide conjugal relationship
for a period of at least one year.
Both marriage and common-law partnership (common-law partnerships may be opposite-sex and
same-sex) are legally recognized in Canada for purposes of federal benefits and obligations
(Modernization of Benefits and Obligations Act, June 2000). In order to be eligible for federal
benefits, couples must either be married or meet the definition of common-law partner in each
statute or regulation. IRPA brought CIC’s immigration legislation into conformity with the
Modernization of Benefits and Obligations Act.
Because of Supreme Court decisions, the choice not to marry is a constitutionally protected
choice.
Thus, CIC cannot require couples to marry in order to immigrate. However, if they are not
married, they must be common-law partners. There is NO provision for fiancé(e)s or “intended
common-law partners” in IRPA.
If a Canadian and a foreign national can get married or can live
together and establish a common-law relationship, this is what they are expected to have done
before they submit sponsorship and immigration applications.
So, first it says the conjugal class is for those who would usually apply as common-law, but then further down it says that if you can marry, you're expected to do so then apply as spouses.
Anyway, if you had a conjugal partner class application in progress and got married, CIC would usually switch it to a spousal application. They are not technically
required to, but the processing manual encourages it. See OP2 5.51.
