IMMIGRATION: Living together is not enough for ‘common law’ status

IMMIGRATION: Living together is not enough for ‘common law’ status

Q: I just heard today, that getting landed immigration status within Canada through marriage is not really necessary anymore. I heard that if the couple just lives together for a year, they would be considered as “common-law” and immigration (officials) would accept this for landed immigrant status. Is this really true?

A: This is true…sort of.

It is true that in June 2002 Canadian citizens and permanent residents were granted the right to sponsor their “common law partners”. It is also true that these cases can now be processed from within Canada.

However, where you might be going wrong is when you say that they “just” have to live together for a year. If this were true that would mean that we can sponsor someone who is nothing more to us than a roommate. This is not so.

In order for two people to be considered common law partners they must be in a “conjugal relationship”. The fact that they are having “conjugal” i.e. sexual relations is also not enough. It doesn’t matter if they are in a same-sex or opposite-sex relationship.

CIC expects to see sufficient proof that they have a mutual commitment to a shared life… i.e. “trying out” a life together is not enough. Each must already be committed to a life together. Accordingly, they can’t be simultaneously committed to someone else. They must be committed to sexual exclusivity.
They must be physically, emotionally, financially and socially interdependent on one another. The relationship must be permanent, genuine and continuing. They must present themselves as a couple and be perceived by others as such.

In other words it’s like they’re married…but without a certificate.

You may be surprised to know that people can qualify as common law partners even when they are still married to someone else. However, they must prove that their marriage has broken down and that they have lived separate and apart from their spouse for a sufficient enough time to establish a one-year common-law relationship with their current partner.

In certain circumstances, after the one year period of cohabitation has been established, the partners may live apart for some time without legally breaking their cohabitation. If they are separated due to armed conflict, illness of a family member, or for employment or education-related reasons etc, they can still be viewed as living common law. However, one would expect to see evidence that they remain together through visits, correspondence, and telephone calls.

Finally, it’s possible to be considered “common law” even where the couple has not cohabited. If they are committed to each other as described above but are unable to cohabit due to persecution or any form of penal control, then they will be considered to be “common law partners” nonetheless.
So you see, living together may not be enough to qualify as a common law partner whereas the absence of a shared roof may not disqualify a couple from being viewed as such.
Interesting, huh?

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Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at reporter@migrationlaw.com.