Common-Law Status and Immigration to Canada: Key Insights

Canada provides common-law couples with many of the same rights as married couples, but because common-law status is not recognized in much of the world, confusion over what constitutes a common-law relationship is common. When it comes to immigration, it’s important to understand your status.

Common-law status is a topic that frequently causes confusion when discussing Canadian immigration
matters. Although Canada recognizes common-law partnerships, many other countries do not, and therefore some individuals who would be considered to be single in their country of origin, may actually be common-law according to Canada. It’s important to understand the concept so that any immigration declarations are made accurately (using the Canadian definition) as failing to declare that you have a common-law partner at the time of your application to Canada may result in that partner never being able to accompany you to Canada at a later date. It’s a confusing topic with potentially serious consequences.

For Canadian immigration purposes, common-law marriage status means a relationship in which two people, both over 18 years of age, either opposite or same-sex:

• Have lived together for at least 12 consecutive months in a conjugal relationship. Note that the definition requires one year without a break.
• Are in an exclusive relationship that both parties intend to be permanent.
• Present themselves publicly as a couple.
• Have combined their affairs in much the same way as a married couple (joint bank accounts, shared expenses, joint purchases, insurance policies include both parties, etc.)

If you meet those criteria, then Canada considers your civil status to be common-law, even if your country of origin considers that you are single. It’s important to declare your status as common-law on any Canadian immigration applications that you make.

There is no piece of paper to a prove the common law relationship as a legally married couple has with their marriage certificate. Because of this, Canada Immigration has a statutory declaration that common-law couples must complete.

Canadian law treats common-law partners in much the same way as married couples, both for permanent and temporary immigration purposes. If you are a Permanent Resident or Canadian Citizen, you have the option to sponsor your common-law partner as a Permanent Resident through the family sponsorship programs. If you are applying for Permanent Residence yourself, say through Express Entry, you can include your common-law partner in your application and they will receive Permanent Resident status at the same time as you do. If you are applying for a study permit to Canada, or certain types of work permits, your common-law spouse is likely to qualify for an open work permit as your accompanying dependent.

Once you have met the criteria to be considered common-law partners, then you will continue to be considered common-law partners as long as you both intend to continue your relationship. You may be apart at times, just like a married couple – e.g., for business travel, a death in the family or other reasons that may keep you separated for a period of time. But once you have accumulated the one year base of living together continuously that is required for all common law relationships, your status will continue despite being apart from time to time as long as your mutual intention
is to resume living common-law when you can.

It is possible to be both married and common-law at the same time, as long as you are separated from your former marriage partner. Until such time as you are divorced from your married spouse, you are considered ‘legally separated’ if you are living apart from them with no intention to resume the marriage. You may enter into a common-law relationship with another person, and of course cannot remarry until the divorce is finalized.

In this case, you are married and common-law at the same time. As long as your marital status is perfectly clear to the immigration officer (either from the forms or an additional letter if necessary), this should not be a problem. You only have one active relationship at the time you file, and that is common-law. Canada only recognizes one spouse – it’s not possible for immigration purposes to be active in a marriage and a common-law relationship at the same time.

Taxation law is different than immigration law, and there are different criteria for deciding when you meet the common-law definition as a tax payer. The best advice is to discuss your situation with your tax preparer to determine when you should start filing your tax returns jointly. Income tax documents are frequently requested as part of an immigration application and if you are claiming common-law status on an immigration application but not on your tax returns, you will need to supply an explanation to explain the discrepancy.

To prove common-law separation for immigration purposes, generally a statement that declares the end of the common-law relationship is sufficient. You may also wish to supply copies of a tax return that shows your status as once again single, or you could provide a copy of ID that now shows a different residential address for each of the parties to the relationship.

Common-law status is not considered to be the same as living with your girlfriend or boyfriend. Common-law status assumes a more permanent relationship is in place, and that you are actually building a family unit together with your partner. It is a marriage-like relationship. The distinction between dating and common-law is important to remember, especially at ports of entry. It’s important to refer to your significant other as your common-law partner if that is the nature of your relationship. Our office has seen situations where applications to sponsor a common-law partner were declined because one of the partners said the purpose of their visit to Canada was to visit their “girlfriend.”

At some point, for immigration purposes, you may need to demonstrate how long you have cohabited with your partner, so evidence showing the same address is very important.  Therefore, when moving, ensure that you officially change your address as soon as possible for things like your driver’s license, health care coverage, payslips at work, and your income tax filing as these provide good evidence of your relationship.  Also, try to have your name included on any rental lease and on utility bills whenever possible and set up your financial affairs and assets in a way that best reflects your relationship. There is no one magic way to do this, but the more you have combined your affairs such as your property, credit cards, a will, etc – the more the marriage-like relationship will be obvious to an officer. Two individuals who are just good friends don’t do that!

There is a separate category of sponsorship for ‘conjugal partners’ but this is quite rare. If you are in an exclusive relationship of some permanence and cannot marry or live with your partner due to legal or other restrictions, Canadian immigration officials may consider you to have a conjugal partner. This category is reserved for situations in which it would be impossible for the couple to have a public relationship or be legally married, for example, same-sex couples from places where such a relationship is illegal.

It is possible for a Canadian Citizen or Permanent Resident
to sponsor a conjugal partner, but these sorts of applications must demonstrate that it is impossible for the couple to get married or live together for one year. It is not a category of application for individuals who choose not to marry or co-habit because of economic or other reasons.

At The Way Immigration
, we regularly work with common law couples on sponsorship applications, accompanying work permits and immigration strategies that maximize the opportunities for Permanent Residence by leveraging the strengths of both members of the family unit. We would be pleased to assist you with your Canadian immigration journey.