A common law relationship is more difficult to prove for legal purposes than a marriage. Whereas in a marriage, you have a marriage certificate that defines the start and the nature of your relationship; with a common-law relationship you have only a collection of various pieces of evidence that, when taken together, paint a picture of a committed relationship between two people. When applying for Common Law Sponsorship to Canada, it is the responsibility of the applicant to not only prepare the application package properly, you must also prove beyond a reasonable doubt that your relationship qualifies as common law. Here are the top mistakes we see when applicants prepare their own applications.
Common-Law Sponsorship Checklist – Errors to Avoid for a Smooth Application
- Applying before you meet the common law definition
What defines you as common law?
It’s important to ensure that you actually meet the legal definition of common law that IRCC uses before you make your application. To be considered a common-law relationship for immigration purposes, you must have lived together without any break for at least 12 months in a row. This means that if you have shared the same address for a year, but one of you spent a month visiting family overseas at Christmas time – you don’t meet the common law definition and you should wait until you have 12 months of uninterrupted time together to apply. Now, let’s say that you were both overseas visiting family for Christmas, together – because you were together, then your time together is uninterrupted and you can qualify as common law. The time you spent living together does not need to be inside Canada – but you do need to be together.
The question invariably arises – can we have any time apart under the rules for common-law relationships? Generally, very short and temporary absences can take place without causing issues with establishing common-law status. The rule of thumb is that you should be apart for no longer than 2 weeks at a time when trying to achieve common-law status. As well, if you have already lived together for at least 12 months without interruption, and you can prove that – then it doesn’t matter if you are currently living together or not. As long as your relationship continues, then you are considered to be common law.
Now that we have established when you will be considered common law, ensure that all of your forms are signed AFTER that date. You are considered to be making your application on the date that you sign the forms, so ensure that you qualify as of that date.
No, you can’t submit an application in advance of being eligible and then hope to qualify because you will meet the definition while you are waiting for your application to be processed. You must be eligible on the day that you sign your forms, or you will be refused.
Note that common law does not have the same meaning as a conjugal partner. Common-Law requires that you have lived together, whereas, conjugal partner requires a significant degree of commitment but there is no cohabitation requirement.
- Failing to prove 12 months consecutive cohabitation
The primary defining characteristic of a common-law relationship is that you have lived together for at least a year. Therefore, you need to include evidence with your application that shows both of you at the same address for more than a 12-month span of time. What can be used as proof of cohabitation? You should provide some kind of evidence that shows both of you at the same address with a date that is more than 12 months old, as well as evidence you are at the same address at the time you submit your application. If you have moved multiple times during the year, you should include evidence that links both of you to every address that you have lived at.
What if you were travelling in a van for the year – how do you prove you are cohabiting partners then? Well, it happens! But most of you who travel in a van, also seem to document your travels on some kind of public forum – so that can be useful proof of where you were, what you were doing, and who you were with on any given date. If you are currently in your van and you are planning for your common-law sponsorship application, now is the time to start making campground bookings in both names, stop at a hotel or hostel from time to time (in both names), and request paper invoices for services that you might utilize along the way. But really, it is going to be difficult for you to adequately prove you meet the common law test on your own – if this is your situation, please make sure that you engage with a professional regarding your application.
Now, for a quick test of your recollection thus far: “How long do you live with someone before it’s common law?” You know the answer is 12 months – just make sure that you prove it in your application!
- Not including a Statutory Declaration of Common Law Status
What is a Statutory Declaration of Common Law status? This is a specific form from IRCC that is used to declare the details of a common-law relationship for immigration purposes – the IMM 5409. This is a required form to include with most applications if you are in a common-law relationship, but it is not on the required list of forms for a Common Law Sponsorship. I have no idea why. However, you still need to include it and you need to ensure that it is properly completed. For details on how to properly complete this form, you can review our Statutory Declaration of Common-Law Union (IMM 5409) Instruction Guide.
- Failing to keep a copy of what you have submitted to IRCC
It’s a fact. If you are preparing your Common-Law Sponsorship application completely on your own, you are unlikely to submit enough evidence to make your case strong enough for IRCC to approve it without asking for more information. When you get a request from IRCC to provide them with additional evidence, you need to be able to refer back to the evidence you have already submitted in order to determine what more you can provide, and what issues might be outstanding.
It is also possible for portions of your application to be lost at IRCC, or to be overlooked by the officer. You need to always be able to prove exactly what you sent and exactly when they received it.
- Responding to a request for more information without consulting a professional
If you have received a request for more information from IRCC regarding the application you have submitted for Common Law Sponsorship to Canada, we strongly recommend that you consult with a professional before responding. A straightforward request like an updated passport is a simple matter to address, but if you are being asked to provide additional evidence of your relationship, this is an emergency. This is called a procedural fairness letter and if you do not respond with sufficient evidence to convince the officer that you meet the legal test required, your common-law sponsorship application will be refused. If you did not understand the concept well enough to provide a thorough body of evidence with your initial application, then you probably don’t understand the requirements well enough to respond to a procedural fairness letter on your own. The IRCC officer is not going to just take your word for it – you need evidence that meets a particular standard! The best thing you can do is to consult a professional and obtain help to rescue your application before it’s too late. Contact our office to meet with a professional with more than a decade of experience dealing with IRCC.
Common-law partner sponsorship typically takes about 12 months from start to finish on an application that is perfectly prepared. If your application is returned as incomplete or refused altogether, you will lose several months as you prepare a new application and hope this time to meet the standard required by IRCC. Contact our office today to ensure that your family immigration situation is resolved quickly and efficiently, the first time you apply.