The Court listed seven characteristics of a conjugal relationship. These are:
SHELTER:
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?
SEXUAL AND PERSONAL BEHAVIOUR:
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?
SERVICES:
What was the conduct and habit of the parties in relation to:
(a) preparation of meals,
(b) Washing and mending clothes,
(c) Shopping,
(d) Household maintenance,
(e) Any other domestic services?
SOCIAL:
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
SOCIETAL:
What was the attitude and conduct of the community towards each of them and as a couple?
SUPPORT: (ECONOMIC):
(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
CHILDREN: What was the attitude and conduct of the parties concerning children?
In listing these criteria, the Court confirms that they are not exhaustive, and that the weight accorded to each may vary depending on the circumstances in each case. The Court emphasizes that the approach employed in determining whether a claimed relationship is conjugal ought to be flexible.
Former Appeal Division member Anita Boscariol in the decision of McCullough and the Minister of Citizenship and Immigration added the following characteristics, which I adopt and which Member Boscariol suggested to be implicit in the term "conjugal relationship":
• the partners have the capacity to, and consent freely to the relationship;
• a marriage between the claimed conjugal partners would not fall within the prohibited degrees of consanguinity under the Marriage (Prohibited Degrees) Act,18 and thus would not be incestuous;
• the conjugal relationship is exclusive and monogamous; and
• the relationship is more than a precursor, or plan, to share a conjugal relationship in future.
