Continued from “Proxy marriage in a time of COVID-19, Part I”
History of the Provision
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”. As noted in the Regulatory Impact Analysis Statement (RIAS), ((Regulatory Impact Analysis Statement, Regulations Amending the Immigration and Refugee Protection Regulations (2015) C Gaz I, Vol. 149, No. 14, 4 April 2015, HTML version online: http://www.gazette.gc.ca/rp-pr/p1/2015/2015-04-04/html/reg1-eng.html; PDF version online: http://www.gazette.gc.ca/rp-pr/p1/2015/2015-04-04/pdf/g1-14914.pdf, pp. 735-747 [RIAS].)) the same amendment raised the minimum age of marriage from 16 to 18, and tied the two amendments together. Both amendments, according to the RIAS, were meant to prevent early and forced marriages. The RIAS includes a callback to a Private Member’s Motion (M-505) from 2014. ((RIAS, ibid., p. 736; Private Member’s Motion M-505, 41st Parl., 2nd Sess., 10 December 2014, online at: https://www.ourcommons.ca/members/en/stella-ambler(58833)/motions/6524308.)) When raising the motion in the House, MP Stella Ambler (Mississauga South, CPC), stated:
…I am honoured to rise in the House today to introduce my motion, which pertains to telephone, fax, Internet or proxy marriages; specifically, as they relate to immigration to Canada.
…My motion is related to forced marriages, in that the sad truth is that these practices can be used to force individuals, usually women and girls, into non-consensual marriages.
…A marriage by proxy is one where one or even both participants are not present at the ceremony and are represented by another person. Sometimes, these marriages are conducted via telephone, the Internet, or even by fax. Some visa offices around the world encounter marriages by proxy on a regular basis, as it is a cultural practice in some parts of the world. Rest assured, such marriages are not legally recognized when performed in Canada.
House of Commons Debates, 41st Parl. 2nd Sess., Vol. 147, No. 130 (23 October 2014), online: https://www.ourcommons.ca/Content/House/412/Debates/130/HAN130-E.PDF, at p. 8747 (Stella Ambler) [Ambler, Debates, 23 October 2014].
The previous applicability of proxy marriages was addressed in the “Family Class” manual posted on the IRCC (then CIC) website in 2015, which itself dated from 2006. ((Citizenship Immigration Canada, Operation Manual 2, archived online: https://web.archive.org/web/20150217210306if_/http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf [Archived Operation Manual 2]. )) The definition of marriage included therein stated: “A marriage must be legal both in the country where the couple got married and under Canadian federal law i.e. the Marriage (Prohibited Degrees Act) with respect to consanguinity and the Criminal Code with respect to polygamy and bigamy.” ((Archived Operation Manual 2, ibid. at p. 37.)) Elsewhere it said “A marriage that is legally recognized according to the law of the place where it occurred is usually recognized in Canada. … A marriage, which took place abroad, must be valid both under the laws of the jurisdiction where it took place and under Canadian federal law.” ((Archived Operation Manual 2, ibid. at p. 24.))
The same 2006 manual defines proxy marriage as “At a proxy marriage one of the participants is not present and has named a proxy to represent him or her. If the law of the country in which the marriage ceremony was performed permits proxy marriages, they are legal marriages for immigration purposes, provided they are legal under Canadian federal law.” ((Archived Operation Manual 2, ibid. at p. 37.))
MP Ambler stated that “… the focus of the motion is the increasing concern that some marriages by telephone, fax, Internet or proxy can make it easier for someone to be forced into a marriage to which they do not consent. Indeed, as I have stated, there have been reports of spousal sponsorship cases that were, in fact, cases of forced marriages facilitated by proxy.” ((Ambler, Debates, 23 October 2014, supra, p. 8747.)) The evidence cited was:
- “there have been reports” ((Ambler, Debates, 23 October 2014, supra, p. 8747.)); and
- “While not all telephone, fax, Internet, or proxy marriages are forced, it is clear from the information received by visa officers in Canada’s regional offices that some most certainly are.” ((Ambler, Debates, 23 October 2014, supra, p. 8747.))
The RIAS stated that:
The nature of proxy, telephone, fax, Internet and other similar forms of marriage can help to facilitate forced marriages because one or both spouses are not physically present, making it more difficult to determine that they consent to the marriage. In recent years, a small number of cases of forced marriage facilitated by proxy have been brought to the attention of Citizenship and Immigration Canada (CIC).
RIAS, p. 737.
The RIAS also stated – misleadingly it should be said – that “In the existing regulatory framework, proxy, telephone, fax, Internet and other similar forms of marriage, including those forms used to facilitate forced marriage, are not explicitly barred, and there are no grounds to refuse them as long as they are legally valid in the country in which they occurred.” ((RIAS, supra., p. 737.)) The existing regulatory network absolutely allowed applications to be refused where consent or genuineness was not shown, and this remains the case today. Furthermore, if consent was the issue, then a section ought to have been introduced requiring proof of the free consent of the parties to the marriage, rather that excluding marriages made with full consent but by proxy.
The RIAS goes on to state:
The proposed amendments would bar marriages conducted by proxy, telephone, fax, or Internet and other similar forms to help the immigration system make it impossible for forced marriages conducted by these means to be a mechanism to gain immigration status in Canada (i.e. through “marriages of convenience,” as described above). They may also help reduce the number of vulnerable individuals who fall victim to forced marriage in order to gain immigration status in Canada.
RIAS, p. 738.
Again, this statement is misleading because there is no evidence that excluding proxy marriages would “help the immigration system make it impossible for forced marriages conducted by these means to be a mechanism to gain immigration status in Canada”. The same type of bare assertion is raised where the RIAS touches on why the existing “bad faith” exclusion is allegedly insufficient. It states ((RIAS, p. 740.)):
- “CIC officers currently have the authority under the ‘bad faith’ provisions (section 4) of the Regulations to consider an otherwise legally valid marriage as invalid for immigration purposes where there are suspicions that the marriage is not genuine or that it was entered into primarily for the purpose of acquiring any status or privilege under the Act.” – this much is accurate
- “Consideration was given to strengthening only the administrative guidelines that correspond to the “bad faith” provisions in order to direct officers to increase the scrutiny of proxy marriages.” – there is no indication of what this “consideration” was, or what its outcome was
- “Explicitly identifying such a marriage as an ‘excluded relationship’ through a regulatory amendment to section 5 of the IRPR, however, would strengthen the tools to deny all such marriages for immigration purposes.” – this sentence as written is illogical, as if effectively reads “Making it illegal would make it illegal” – the equivalence of proxy marriages and bad faith marriages is here assumed without any evidence
- “The proposed regulatory amendment would also make clearer the policy intent of denying all such marriages for immigration purposes, given their possible connection to early and forced marriage.” – similarly, this sentence illustrates the sudden jump to the conclusion that all proxy marriages are made in bad faith, and tosses out there the accusation, also made without evidence, that proxy marriages are connected to forced and early marriage
Later on in the RIAS, CIC admits that it (a) does not track proxy marriages, and (b) that they comprise a very small proportion of the marriages dealt with in immigration applications – perhaps 0.5%. ((RIAS, p. 742.))
Why are Proxy Marriages Excluded?
Evidence before the Amendment
Evidence at Standing Committee on Citizenship and Immigration Meeting March 25, 2014
Mr. Costas Menegakis (Richmond Hill, CPC) asked a witness:
Proxy marriages are legal right now. It’s true that a couple who are married over the phone or even by fax can be eligible for the spousal sponsorship program. I’m under the impression this could or would lead to more forced marriages.
In any event, do you think this practice needs to be stopped? Should proxy marriages be banned from the spousal sponsorship program?
House of Commons, Standing Committee on Citizenship and Immigration, Evidence, 41st Parl., 2nd Sess. (25 March 2014), CIMM No. 17, online: https://www.ourcommons.ca/Content/Committee/412/CIMM/Evidence/EV6484465/CIMMEV17-E.PDF [CIMM 25 March 2014], p. 14.
In response, witness Prof. Audrey Macklin stated: “…It’s not my understanding—but I have not studied it—that this is a particularly serious problem with regard to the incidence of forced marriage, but having said that, I confess that I have not done a close study of it.”
Witness Elizabeth Long indicated “…I don’t know that being married over the phone would be any different from someone standing next to them in the aisle in a church or in a mosque. If there is abuse in a situation, there will be abuse whatever the form of marriage, in my experience. That is just my opinion.”
Witness Ms. Adeena Niazi (Executive Director, Afghan Women’s Organization) stated:
…in most of the Muslim countries, and it was mentioned that this also happens in Israel, proxy marriages are a culturally and legally acceptable means for a couple to unite. These practices are most common in countries affected by war. These marriages are legal, binding, and it’s with the consent of both parties. We have witnessed many successful proxy-arranged marriages in which the sponsor has provided unconditional support.
CIMM 9 April 2014, ibid., p. 12.
Later she added:
Also, I spoke about proxy marriages. Proxy marriages, especially for the refugees who cannot go back to their country or who cannot…this is also something. At the beginning I was also a little worried about that, but now I see many proxy marriages that have been very successful. The sponsor has provided unconditional support for their spouses who are sponsored here. Most of them work because they know each other. They cannot just do it by phone or by…and it doesn’t make a difference if you’re sitting together at the same table or you are doing it by phone.
CIMM 9 April 2014, ibid., p. 15.
SALCO et al. Response, October 2014
A joint response from a number of legal clinics and practitioners led by the South Asian Legal Clinic of Ontario issued a written response to the Standing Committee on Citizenship and Immigration, in reply to Motion M-505. ((Letter, South Asian Legal Clinic of Ontario et. al, response to M-505, 3 October 2014, online: http://www.salc.on.ca/ResponsetoM-505.pdf [SALCO Response].)) In that response, SALCO et. al noted:
[SALCO] has collected data and presented a report on forced marriage in the Canadian context. There has been no indication from the data collection / research done by SALCO that forced marriage victims face “proxy marriages”. In fact, in the majority of the cases surveyed forced marriage victims were married in person and not by proxy marriage. A ban of proxy marriages will do little, if nothing, to protect victims of forced marriage. This proposed motion suggests once again that our law makers and government are focusing on limiting spousal sponsorship under the guise of “protection of victims of forced marriage”. Banning proxy marriage has no nexus to protecting victims of forced marriage based on empirical evidence and data collected about the Canadian experience[.]
SALCO Response, p. 2.
The response also notes that the banning of proxy marriages would be in contravention of the UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, ((Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 7 November 1962, 521 UNTS 231 (entered into force 9 December 1964), online: https://www.ohchr.org/EN/ProfessionalInterest/Pages/MinimumAgeForMarriage.aspx [UN Marriage Convention].)) which states:
1. No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law.
2. Notwithstanding anything in paragraph 1 above, it shall not be necessary for one of the parties to be present when the competent authority is satisfied that the circumstances are exceptional and that the party has, before a competent authority and in such manner as may be prescribed by law, expressed and not withdrawn consent.
UN Marriage Convention, Article 1.
While the response fails to mention that Canada is not a state party to that convention, it is nevertheless odd that no consideration was given to to this point, nor to any of the other points raised in the response.
Report of the Standing Committee on Citizenship and Immigration, Strengthening the Protection of Women in Our Immigration System, February 2015
The Report references Private Member’s Motion M-505 mentioned above. ((House of Commons, Report of the Standing Committee on Citizenship and Immigration, Strengthening the Protection of Women in Our Immigration System (February 2015) (Chair: David Tilson), online: https://www.ourcommons.ca/Content/Committee/412/CIMM/Reports/RP6837061/cimmrp04/cimmrp04-e.pdf, p. 5.)) The Report notes “The Committee wanted to know whether the type of marriage – proxy, arranged, ‘love’ – made any difference in terms of the sponsored spouse’s vulnerability to abuse. Some witnesses stated that abuse happens in all kinds of marriages.” ((Strengthening the Protection of Women in Our Immigration System, ibid., p. 14.))
Evidence at Standing Committee on Citizenship and Immigration Meeting March 31, 2015
Proxy marriages were discussed briefly – again with reference to forced marriages – in March 2015. ((House of Commons, Standing Committee on Citizenship and Immigration, Evidence, 41st Parl., 2nd Sess. (31 March 2015), CIMM No. 43, online: https://www.ourcommons.ca/Content/Committee/412/CIMM/Evidence/EV7909556/CIMMEV43-E.PDF, p. 13.)) The Department of Justice, in giving evidence, referred to two reports, ((Department of Justice Canada, Naïma Bendriss, Report on the Practice of Forced Marriage in Canada: Interviews with Frontline Workers: Exploratory Research Conducted in Montreal and Toronto in 2008 (November 2008), online: https://canada.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/fm-mf/fm_eng.pdf; Department of Justice Canada, Zohra Husaini, Ph.D & Jagjeet Bhardwa for Indo-Canadian Women’s Association (31 May 2010), online: https://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/fmwc-mfoc/fmwc-mfoc.pdf.)) neither of which explicitly mention proxy marriages.
UNICEF Response to the RIAS, May 2015
In May 2014, UNICEF responded to the RIAS. ((UNICEF, “Submission by UNICEF Canada to the Director, Social Immigration Policy and Programs, Citizenship and Immigration Canada”, 4 May 2015, online: https://www.unicef.ca/sites/default/files/imce_uploads/unicef_canada_submission_-_proposed_irpa_regs_may_4_2015_final.pdf [UNICEF Response].)) That response noted:
While we appreciate that early and forced marriage is a legitimate and serious consideration
UNICEF Response, pp. 1-2.
and applaud the Government of Canada’s steps to address this violation of children’s rights in the international community, there is no compelling evidence to suggest that the proposed
amendments will decrease the likelihood of early and forced marriage and we are concerned
that the potential for negative impacts on girls and women may be more significant. The
assumption that early and forced marriages take place for immigration purposes has not been
well-researched in the Canadian context. Likewise, there is no cogent evidence to support the
assumption that changing immigration regulations will have a deterrent effect on the occurrence
of early or forced marriage.
While the UNICEF Response focused on the increased legal age of marriage for immigration purposes (it was indeed raised to 18, ((Immigration and Refugee Protection Regulations, SOR/2002-227, s. 5(a), online: http://canlii.ca/t/54bm8#sec5.)) which UNICEF correctly noted is 16, ((Civil Marriage Act, SC 2005, c. 33, s 2.2, online: http://canlii.ca/t/52hdt#sec2.2.)) not 18, in Canada.)
After the Amendment (Post-Hoc “Evidence” and Justifications)
Immigration Department’s Operational Bulletin 613, June 2015
In June 2015, CIC (as it then was) published an OB regarding the amendment. ((Canada, CIC, “Instructions – Excluded relationship – Proxy, telephone, fax, internet or similar marriage forms where one or both parties not physically present”, Operational Bulletin 613, 11 June 2015, online: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/bulletins-2015/613-june-11-2015.html; archived: https://web.archive.org/web/20200517100332/https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/bulletins-2015/613-june-11-2015.html.))
Interestingly, OB 613 gives the first plausible reason why a proxy marriage might be more facilitative of a forced marriage than an in-person marriage: “The nature of proxy, telephone, fax, Internet and other similar forms of marriage can help to facilitate forced marriages because one or both spouses are not physically present, making it more difficult to determine that they consent to the marriage.”
Report of the Standing Committee on Citizenship and Immigration, Family Reunification, March 2017
This Report notes:
In 2015, the Regulations were amended to exclude marriages conducted without the two parties being physically present, as is the case with proxy marriages. The rationale provided by the Department for this change was that the nature of the marriage made it more difficult to determine the validity of the consent of the individual, prompting concerns that this facilitated forced marriages.
House of Commons, Report of the Standing Committee on Citizenship and Immigration, Family Reunification (March 2017) (Chair: Borys Wrzesnewskyj), online: https://www.ourcommons.ca/Content/Committee/421/CIMM/Reports/RP8810563/cimmrp08/cimmrp08-e.pdf, p. 39 [footnote omitted] [Family Reunification].
The Report goes on to note that the CBA argued, in a letter of December 2016, that the exclusion of proxy marriages “speaks to a lack of sensitivity to cultural practices abroad: ‘Outside the immigration sphere, these marriages are typically recognized as valid under the laws of the jurisdiction where it took place and under Canadian law.'” ((Family Reunification, ibid., pp. 39-40.)) The CBA argued the provision should be repealed.
Other Evidence?
There does not seem to be evidence – neither that which was put before Parliament nor otherwise – indicating that proxy marriages are more open to abuse or forced marriage.
With certain limits, proxy marriages are considered valid under other countries’ immigration rules. For example, in the UK, a proxy marriage may “be accepted as valid in the UK for immigration purposes”, so long as it was properly performed under the rules of the jurisdiction where it took place and in which proxy marriages are legal, the parties had capacity, and evidence of the legal validity is presented. ((CB (Validity of marriage: proxy marriage) Brazil [2008] UKAIT 00080, online: http://www.bailii.org/uk/cases/UKIAT/2008/00080.html; UK Home Office, Family Policy: Partners, divorce and dissolution, v.1, 29 May 2019, online: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/835362/Partner_divorce_and_dissolution_guidance_v.1.0ext.pdf, at pp. 10-11.)) The Republic of Ireland has taken a similar stance. ((Hamza & anor v Minister for Justice Equality & Law Reform, [2010] IEHC 427, Ireland: High Court, 25 November 2010, online: https://www.refworld.org/cases,IRL_HC,58a6e9155.html; aff’d Hamza & another v Minister for Justice, Equality & Law Reform, [2013] IESC 9, Ireland: Supreme Court, 27 February 2013, online: https://www.refworld.org/cases,IRL_SC,512e0a242.html. ))
The United States allows immigration based on proxy marriages where they have subsequently been consummated. ((Immigration and Nationality Act of 1952, 8 U.S.C. §1101(a)(35).)) This led to a tragic and bizarre case where a foreign woman was affianced to a US soldier, and upon finding that she was pregnant, a proxy marriage (allowable under certain conditions for members of the military) was conducted. The soldier was killed in action, and the fact that the “consummation” occurred before and not after the proxy marriage meant that she could not immigrate to the United States. ((For a legal analysis of this absurdity, see Lucas I. Quass, “Proxy Marriages and the Military Widow Penalty: Excluding Alien-Widows of Fallen Soldiers” (2011) 20:3 Review of Law and Social Justice 501, online: https://gould.usc.edu/students/journals/rlsj/issues/assets/docs/volume20/summer2011/3.Quass.pdf. By the time a special bill was passed allowing for the widow and child to immigrate, it had seized to be practical: Matt Lakin, “Legal barriers gone, but miles still separate fallen Marine’s family”, Knoxville News Sentinel (online), 19 March 2013, online: http://archive.knoxnews.com/news/local/legal-barriers-gone-but-miles-still-separate-fallen-marines-family-ep-358585291-356036411.html.)) However, it must also be considered the the US allows temporary status to fiancés.
