If you wish to sponsor a common-law partner to come to Canada, you must prove to immigration authorities that your common-law relationship is a valid one, and not one of convenience. That is, you must convince them that you are not sponsoring someone that you don’t have a genuine relationship with.
So, the question is how do you claim, or prove, a common-law relationship?
What is a Common-Law Relationship?
According to the IRPR (Immigration & Refugee Protection Regulations) a common-law couple are one who have:
- Lived together, or cohabited, for at least one year with both partners being 18 years or older (although they can begin co-habiting at an earlier age, the relationship is only considered common-law after both have turned 18 and have then lived together for at least 1 year as 18-year-olds)
- Done so in a conjugal relationship.
This means that a common-law relationship is what is called a de facto relationship as compared to a marriage which is a de jure (or legal) relationship. Because it is a de facto rather than a legal relationship, the onus is on the applicant to prove that their common-law relationship is a valid one. The first and principal step is to prove cohabitation.
Cohabitation and how to prove it
There are several key aspects of cohabitation and they are straightforward and common sense:
- A common law couple lives together in the same dwelling;
- A common law couple combine their affairs: phone bills, groceries, rent or mortgage and other expenses are shared;
- A common law couple have continuously (NOT cumulatively) lived together for at least one year and continue to live together - this means any separation must be:
- Temporary: for some specific short-term reason like work or travel or family affairs,
- Short-term: for a very brief period of time.
Once a year of continuous cohabitation has been established, the separations can be a little longer if the reason is deemed valid. For example, illness, a period of study at another location, or a death in the family. But the intention on the part of the common-law couple must always be to live together again as soon as possible.
For example, if the couple has cohabited continuously for at least a year and then the Canadian partner (or the partner is someone with PR status in Canada) has had to return to Canada, they must show evidence that the relationship is a continuing one. Letters, emails, any documents that indicate they are in constant communication and intend to reunite as soon as possible should be saved for the application.
Remember, the longer the period of temporary separation, the harder it will be to prove to immigration authorities that you are still continuously cohabiting.
What kind of documents help prove cohabitation?
In order to prove that you have cohabited for 12 months, some of the documentation you can provide includes:
- If you own your dwelling together and have deeds or some other legal document showing joint ownership of residential property
- Leases or rental agreements in both your names
- Utility bills in both your names like gas or electricity or phone bills
- Drivers licenses or insurance policies in both names
- Any identification documents that list you together.
Phone bills, letters, or photographs should be copies as they will not be returned to you. As well, send certified copies of documents like marriage certificates or passports unless you are specifically requested to provide original copies.
People can often have one or marriages in their past, and there are some societies that allow marriage at any earlier age than allowed in Canada or even marriage to more than one spouse. Due to this, it is important to summarize the basics of how immigration authorities will assess the validity of a common-law relationship in several types of situations.
Sponsor in Canada and common-law partner abroad
You have to have cohabited continuously for 1 year, but then – as explained above – there can be a separation at the time you apply, as long as there is proof that you intend to cohabit together again as soon as possible, and that the relationship is still ongoing. Both parties have to provide evidence that they are continuing the relationship and intend to cohabit as soon as possible.
Both parties have to complete form IMM5532e. Go here to download a copy. If are unable to open it at that link, download it to your hard drive by saving it to your pc. Then open it up from your computer (usually by going to your windows explorer or graphic user interface). You will need Adobe Acrobat to open it.
The longer you are separated with the sponsor in Canada and the common-law spouse abroad the harder it will be to prove you are still cohabiting, so you should apply to sponsor as soon as possible.
Sponsor or common-law partner with a previous common-law relationship
For a common-law relationship to end, at least one partner has to no longer intend to continue the relationship. If either the sponsor or the common-law partner has been in a previous common-law relationship, they will have to prove to immigration authorities that the previous common-law relationship has indeed ended and that they intend to continue in the current relationship. To prove that the previous relationship has ended there must be evidence that at least one of the partners in that previous relationship intended to end it.
Sponsor or common-law partner legally married to another person
For this to be accepted by Canadian immigration authorities the following must be true:
- The person legally married must have lived apart from their legal spouse for at least 1 year.
- There has been no conjugal relationship with their legal spouse for at least one year.
- If the information given in form IMM5532 is deemed insufficient to establish if there indeed has been a separation from the legal spouse, immigration officials may ask for further evidence, including:
- A signed formal declaration that the legal marriage has ended, and that the person has entered into a common-law relationship;
- A separation agreement;
- A court order dealing with the custody of children from the marriage
- A change of beneficiary document, removing the married spouse from things like insurance policies.
- The legal spouse will not be examined (will not have their case reviewed by immigration officials). This spouse will NOT be able to be sponsored at some point in the future by the principal applicant.
Sponsoring a previously separated spouse as a common-law partner
In general, a legally separated spouse of a sponsor who was not an accompanying family member and was not disclosed or examined (as in the case mentioned directly above) cannot be sponsored. In order for the sponsor to try and sponsor a formerly separated spouse or common-law partner the onus is on the sponsor to show that:
- The former conjugal or common-law partnership was not dissolved solely for immigration purposes. That is, you have to prove you didn’t end the relationship only in order to marry a Canadian, for example, and thus gain access to immigrating to Canada.
- The new relationship with the previously separated spouse or partner is genuine and is not for immigration purposes only.
- If the information you both provide on form IMM532 is deemed insufficient you may have to provide additional documentation to prove your renewed relationship is genuine, such as:
- A mortgage or lease in both of your names
- Documents that show both your addresses (like a driver’s license or insurance policy, for example)
- Bank statements showing joint bank accounts
- Canada Revenue Agency documents that show a relationship between the two of you.
Even if you are legally remarried after having been legally divorced, if your formerly separated and now-current spouse was not examined at the time a sponsor, for example, applied for permanent residence in Canada, they may be rejected.
The following relationships, while perhaps acceptable in some societies, are prohibited in Canada and cannot be the basis for a common-law or any other relationship:
- Incestuous relationships: There are prohibited degrees of consanguinity in Canada. Distant relations (distant cousins) may be able to be common-law spouses but any near relation is not eligible to be a common-law partner.
- Both partners must be at least 18 and have lived together for a year since they turned 18, although the relationship can have begun at an earlier age.
- Neither partner can have been detained or incarcerated for offences that would be considered crimes under Canada’s criminal code.
So, in conclusion, the shorter any period of separation after having lived continuously for 1 year, and the more evidence you have documenting your cohabitation, the more likely your common-law spouse will be successfully sponsored to come to Canada. However, the likelihood of a successful sponsorship may be less if you have previously separated and then got back together again with your common-law partner. This is especially true if your partner was not previously examined by authorities.