Common-Law status and Immigration to Canada

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 or origin, may actually be common-law according to Canada. It’s important to understand the concept so that any immigration declarations are made properly, 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.

What is common- law status in Canada?

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

• Have lived together in a conjugal relationship for at least 12 consecutive months. 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.

What immigration benefits does my common-law partner receive?

Canadian law treats common-law partners in much the same way as married couples. If you are a Permanent Resident or Canadian Citizen, then you have the option to sponsor your common-law partner as a Permanent Resident. If you are applying for permanent Residence in Canada, including your common-law partner in your application ensures that he or she receives Permanent Resident status at the same time as you do. If you are applying for a skilled work or study permit to Canada, your common-law partner is likely to also qualify for an open work permit as your accompanying spouse.

Can I be married and common-law at the same time?

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. If your relationship with your common-law partner is the only active relationship and you meet the criteria above, you do not need to be divorced before you can be considered to be 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.

Do I need to file my taxes as common-law?

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.

How do I prove my common-law relationship has ended?

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.

Is common-law the same as living with my girlfriend or boyfriend?

No, 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. The distinction 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.”

What is the difference between common-law and conjugal?

At some point, for immigration purposes, you may need to demonstrate how long you have been co-habiting with a partner.  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.  Also, try to have your name included on any rental lease and on utility bills whenever possible.

If you are in an exclusive relationship of some permanence and cannot marry your partner 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, usually 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.