What Does Canada Consider
a Common Law Partner?

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    What Does Canada Consider a Common Law Partner?

    The laws of common law partnerships vary from country to country. The rules governing such a relationship in Canada have an important effect on citizenship or permanent residency status.

    A Canadian citizen or permanent resident can sponsor their common-law partner for permanent residence in Canada. This process is nearly identical to the spousal sponsorship category, except that the sponsor and applicant must demonstrate a common-law relationship, which is more complex than a marriage.

    Contents of this page:

    Proving a Common-Law Relationship

    What is a Common-law Relationship?

    The Immigration and Refugee Protection Regulations at section 1 (1) define a common-law partner as meaning an individual who is cohabiting with another person in a conjugal relationship, having so cohabited for a period of at least one year.

    Cohabiting means living together, so in other words to qualify as common-law partners the two individuals should have lived together continuously for at least a one-year period.

    The couple must also show a conjugal relationship, which is not defined by the Regulations. A conjugal relationship can be described as a marriage-like relationship where the couple is in an intimate and exclusive relationship, with a high degree of personal and financial interdependence.

     

    Seven Factors in Establishing a Conjugal Relationship

    In M. v H., [1999] 2 S.C.R. 3, the Supreme Court of Canada confirmed that there are seven factors to be considered in establishing a conjugal relationship. These factors are:

    1. Shared shelter
    2. Sexual and personal behaviour
    3. Services
    4. Social activities
    5. Economic Support
    6. Children
    7. Societal perception of the couple.

    The Supreme Court also recognized that these elements may be present in varying degrees, that the definition is flexible, and that it is not necessary for all factors to be found to establish a conjugal relationship [M v. H, supra, at para 59].

    Thus, a common-law relationship is much the same as a marital relationship except that the couple are not married. It should be distinguished from a purely casual or non-committal boyfriend-girlfriend or similar relationship.

    How to Prove a Common-Law Relationship

    When assessing a common-law relationship the immigration authorities are primarily concerned to see that the couple has been living together for at least one year. The immigration authorities will expect proof of a common-law relationship and will not accept at face value that two people are living together just because they say so.

    The most common evidence used to establish a common-law relationship are:

    1. Lease or rental agreements in both partners names and demonstrating that the couple have been at the same address for at least one year,
    2. Utility bills in both partners names going to the same address,
    3. Joint bank accounts with both names and addresses listed,
    4. Income tax returns showing the partners listed as being spouse/partner.

    This list is not exhaustive and there may be other documents that can be provided to establish a common-law relationship depending on the circumstances of each case.

    Proving Your Relationship is Genuine

    In addition to showing that they have been living together for at least one year in a conjugal relationship, those applying under the common-law partner category must also show that their relationship is genuine, meaning that they are in a real relationship and that the application is not simply for immigration purposes. 

    The immigration authorities will also expect evidence of how the relationship developed and demonstrating that the couple have family and community support, among other evidence.

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    Requirements for Common-Law Sponsorship?

    To be considered a common law partner in order to be granted Canadian permanent residency, a person must meet these requirements:

    • They may not be married to the person who is being sponsored.
    • They can be of the opposite sex or the same sex as the sponsoring partner.
    • Both partners must be 18 years or older.
    • The sponsor and the partner being sponsored must have been living together for a period of at least 12 consecutive months.
    • The sponsor and partner must have been living in a conjugal, or marriage-like, relationship.

    Your obligations as a sponsor

    Sponsors must sign an undertaking which is a binding promise to offer financial support to cater for the basic needs of the sponsored spouse or partner and their dependent children. As a sponsor you must offer your support for the length of the undertaking period even if your situation changes. This undertaking shall not be canceled even if the sponsor becomes a Canadian citizen, is divorced, separated or the relationship breaks down, or if you have financial problems. Basic needs include:
    • Food, clothing, shelter and other necessities of daily living
    • Health needs that are not covered by public health services such as dental care and eye care
    Take note that if a person you sponsor receives social assistance during the period in which you are legally responsible for them, you will be required to pay for what they received during that period. Additionally, you will be barred from ever sponsoring someone else until you pay this amount.

    May I cancel my undertaking after it’s been approved?

    Once you submit your spousal or common law partner sponsorship application, you may have second thoughts and change your mind before a decision is made. If this happens, you must write a letter to the IRCC by submitting a web form online requesting a withdrawal of the undertaking. An undertaking can only be canceled if the request is approved by the immigration authorities.

    Length of undertaking

    The sponsor’s obligations start as soon as the undertaking is in effect. If you are sponsoring a spouse, common-law or conjugal partner, the length of undertaking is 3 years from the day the sponsored person becomes a permanent resident.

    Suspension of processing

    If you are involved in any of the situations listed below, IRCC will not process your sponsorship application until a final decision related to the situation is made. These situations include:
    • If your citizenship is in the process of being revoked
    • If you have a removal order
    • If you have not met residency requirements
    • If you have been declared inadmissible to Canada due to security, human or international rights violation or serious criminality
    • If you’ve been charged with an offence that’s punishable by a maximum prison term of ten years

    If you don’t meet the sponsorship requirements

    If you choose to withdraw your sponsorship application, you will get a refund for the permanent resident visa processing fees as well as any right of permanent resident fees that you may have paid. The sponsored person’s permanent residence application will also be withdrawn so no decision will be made and you will not have a right of appeal. However, you can still reapply at a later date once you fix the issue that may have made you ineligible to be a sponsor. Keep in mind that if you don’t qualify as a sponsor but still go ahead with the application, it is likely to be refused but you will have a right to appeal.

    How does a Common-Law Partner Sponsorship Application Proceed?

    A common-law partner application is a two-part application whereby the Canadian sponsor applies to sponsor and the foreign partner applies for permanent residence. These two aspects will be assessed by the immigration authorities consecutively.

    The application can be made as an outside-Canada application where the foreign partner remains abroad during the application, or it could be made as an in-Canada application, where the Canadian and foreign partner live together in Canada while the application processes. If done an as in-Canada application, the foreign partner can also obtain a work permit while the sponsorship application processes.

    The Law Office of Matthew Jeffery has over 20 years of experience successfully assisting Common-law Partners of Canadians to apply for permanent residence. Please fill out the Family Sponsorship Free Assessment form to see if we can help you sponsor your partner.

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