Sponsorship Appeals - Immigration and Refugee Board of Canada

The validity of the marriage “under Canadian law” is established by demonstrating that
the foreign marriage is valid under the applicable Canadian law. The expression “Canadian law”
may refer to Canadian rules pertaining to the conflict of laws 53 applicable to foreign marriages, to
rules concerning the formal and essential validity of a marriage concluded in Canada and to
federal legislation regulating certain aspects of marriage, namely the Marriage (Prohibited
Degrees) Act 54 which prohibits marriage between certain individuals and the Criminal Code 55
which criminalizes bigamy and polygamy.
The issue that arises is whether all three sets of rules (common-law rules concerning
conflict of laws, provincial rules pertaining to formal validity of marriage and the federal rules
concerning essential validity of a marriage and those regulating certain aspects of marriage)
should be applied when determining if a foreign marriage is valid “under Canadian law.” It
would seem that only rules respecting essential aspects of marriage and federal legislation
regulating certain aspects of marriage were intended to be applicable.
The rules concerning conflict of laws in cases of foreign marriages applicable in Canada
refer back to the rules of the place where the marriage was celebrated for questions of formal
validity and to the rules of the spouses’ domicile prior to marriage for questions of essential
validity. If these rules are applied, the result is the same as that obtained in applying the first part
of the definition of “marriage” 56 thus making the second part of the definition of marriage in
IRPA redundant.
In Canada, the rules concerning the formal validity of marriage are a matter under
provincial jurisdiction and vary from province to province. It is suggested that these rules were
not intended to be applied in the context of the validity of a foreign “marriage” under the IRPA.
It is difficult to see the merit, for immigration purposes, in requiring that foreign marriages
accord with provincial rules concerning the solemnization of marriages. 57
On the other hand, rules concerning the essential validity of marriage in Canada fall under
federal jurisdiction and are relevant because they govern the substantial aspects of marriage. The
same can be said of provisions in the Marriage (Prohibited Degrees) Act 58 and those concerning
53
54
55
56
57
58
“Conflict of laws” generally refers to a situation where the laws of more than one jurisdiction may apply to the
legal issue to be determined. For instance, in determining the validity of a foreign marriage, the laws of the
jurisdiction where the partners celebrated their marriage, of their domicile prior to marriage as well as those of
Canada may, at least initially, all appear applicable. In such cases, there are legal rules and common-law
principles that assist in sorting out which jurisdiction’s rules actually apply.
S.C. 1990, c. 46 as amended.
R.S.C. 1985, c. C-46 as amended.
Castel, J.-G., Canadian Conflict of Laws (Toronto: Butterworths, 1986).
Note that the age at which a person may contract marriage in Canada is of provincial jurisdiction. This issue is
addressed in the immigration context in s. 5(a) and s. 117(9)(a) of the IRP Regulations.
Supra, footnote 54.
Sponsorship Appeals 10 Legal Services
January 1, 2008
Spouses, Common-law Partners &
Conjugal Partners - Ch. 5