common law partnership

Common Law Partners

With the revamping of the Immigration Laws in 2005, the scope of Family Sponsorship expanded so that not only can married spouses sponsor each other for immigration to Canada, but also common-law partners, same-sex partners and conjugal partners are considered members of the family class.

Whereas previously, same-sex and common-law partners could only apply under humanitarian and compassionate grounds, the regulations now create a class for common law partners, both in Canada and those outside of Canada who cannot for, reason of penal sanctions, live together.

Thus, a sponsor who is a Canadian citizen or permanent resident and at least 18 years old and residing in Canada can file an application to sponsor an individual with whom he or she is married, has a common-law relationship or conjugal partner relationship.

The term conjugal does not mean “sexual relations” alone. It signifies that there is a significant degree of attachment between the two partners.

The following characteristics are what Immigration Officers look to in all relationships, whether married or unmarried:

  • Mutual commitment to a shared life
  • Exclusive relationship so that the individual is only in one relationship
  • Intimate relationship so that there is sexual exclusivity
  • Inter-dependency of physical, emotional, financial and social issues
  • Permanent and a long term genuine and continuing relationship
  • A presentation of the couple socially so that each considers the other a partner
  • Joint caring of children

Because of the more liberal approach to who is considered to be a family member, the documentation required to prove such relationships increases if marriage is not legally possible or has not occurred. Thus, for a common-law relationship, whether same sex or not, there must be a period of one full year of cohabitation together with all of the other extrinsic evidence which shows that the relationship is one in which the individuals are bound to each other.

With regards to a conjugal relationship, the one year period of physical cohabitation is not necessary, but there must be a greater evidence of a relationship proven by extrinsic evidence such as joint membership in organizations or groups, joint participation in sporting or social activities, joint travel, along with testimonials by parents, family members, relatives or friends and other interested parties about the nature of the relationship and whether the couple present themselves to others as partners.

Such elements may be present in varying degrees and not all are necessary for a relationship to be considered conjugal. Whether an element is present may also depend on the culture or preferences of the couple. For example, in some cultures, women have a limited role in management of family finances and thus there may not be joint ownership of property or bank accounts.

Once the basis for a family sponsorship is met, the sponsor and sponsored person must sign an agreement that confirms their understanding of their mutual obligations and responsibilities. The sponsor agrees to support the person and the family members during the period of the undertaking for basic requirements of food, shelter, clothing, fuel, utilities, household supplies and health care not provided by the public health system. In addition, the sponsor agrees that the family member will not need to apply for social assistance or benefits. In fact, the sponsor is bound separately by an undertaking with the Ministry of Citizenship and Immigration that if any social assistance is paid to the sponsored person, that it becomes a debt owed by the sponsor to Her Majesty in the Right of Canada and the Province concerned. As a result the Minister and the Province concerned have a right to take enforcement action against the sponsor for all such benefits paid.

In an expansion of the family class membership, Canada has recognized that family reunification is a substantial cornerstone of the Immigration and Refugee Protection Act.