June 15, 2015

“Common Law” Relationships – What Foreign Nationals Need to Know

The concept of a “common law” relationship does not exist in many countries; so many foreign nationals, and even permanent residents, misunderstand what this means for Canadian immigration law. This lack of understanding has increasingly led to allegations of misrepresentation and even spousal sponsorship applications being refused because of the failure to declare a common law relationship.

The Immigration and Refugee Protection Regulations define a common law relationship as one in which two people cohabit in a conjugal relationship for a period of at least one year. To cohabit is to live together, in a shared accommodation. A conjugal relationship is one which involves physical and emotional intimacy. In basic terms, a common-law relationship is a ‘marriage-like’ relationship, yet one that does not involve either a civil or religious union.

It is possible to sponsor a common law spouse to Canada. To be successful in this application, the couple would need to establish that they lived together and that they were dependent upon one another – physically, emotionally, and financially. On the Statutory Declaration of Common-Law Union that is produced by Citizenship and Immigration Canada (CIC), the following are examples of evidence that may be used to prove the union:

1. My common-law partner and I:

(a)   have jointly signed a residential lease, mortgage or purchase agreement relating to a residence in which we both live.

(b)   jointly own property other than our residence.

(c)    have joint bank, trust, credit union or charge card accounts.

(d)   have declared our common-law union under the Canadian Income Tax Act.

2. I have life insurance on myself which names my common-law partner as beneficiary.
3. My common-law partner has life insurance on him/herself which names me as beneficiary.

CIC examines these relationships closely to ensure that the couple are truly planning a future together in Canada, rather than seeking to sponsor a friend or other individual.

The problem with the misunderstanding of common law relationships, is that many foreign nationals and permanent residents do not realise that they are in (or were in) what CIC believes to be a common law relationship. For example, two people are dating and living together in their home country. One individual then receives a work permit and travels to Canada. This person later applies for permanent residence in Canada, declaring him or herself as “single” on the application forms – believing that this is true, as they were not married. After becoming a permanent resident, the two marry and the permanent resident sponsors his or her new spouse to Canada. Either the first or both of the following results may occur:

1. the spousal sponsorship is refused as the foreign national spouse was not declared as a common-law partner on the sponsor’s application for permanent residence (R117(9)(d)), and
2. the permanent resident (sponsor) is alleged to have misrepresented him or herself on their application for permanent residence (A40(1)(a)) – for not having declared a family member, leading to an admissibility hearing before the Immigration Division and the issuance of a removal order.

From CIC’s perspective, cohabiting with a romantic partner will lead to an investigation as to whether that relationship is common law. It is challenging, once cohabitation is declared with a person that later becomes a spouse, to prove that the earlier relationship was not a common-law one. Clear documentation and evidence will be required to demonstrate a lack of dependence, particularly financial dependence.

Problematically, in our experience, a lack of documents used to prove a relationship is a common law relationship will not prove the relationship is not common law. It is the challenge of proving a negative – that a relationship does not exist – that is presented to individuals in these circumstances. The best defense is to know the law before that initial permanent residence application and before the sponsorship application.

For more information on Spousal Sponsorship, please click here.

For more information on Permanent Residence in Canada, please click here.