Defining "Common Law Partner Sponsorship" for Canadian Immigration Purposes

In the context of Canadian immigration, a common-law relationship holds legal recognition as a de facto relationship. It needs to be established individually based on specific circumstances, differentiating it from a marriage, a legally recognized de jure relationship. This distinction plays a crucial role when understanding the "Common Law Partner Sponsorship" process in Canada.

 

De Facto Relationship vs De jure Relationship: Common Law Partner Sponsorship Perspective

Navigating the intricacies of the Canadian Common Law Partner Sponsorship process requires a fundamental understanding of de facto and de jure relationships. A de facto relationship, typically present in common-law partnerships, is where two individuals cohabitate in a marriage-like or conjugal relationship without a legal marriage or civil union. Conversely, de jure relationships involve legally recognized unions, such as marriage, civil union, or common-law partnerships, and are essential when considering sponsorship for your common-law partner.

 

Identifying Your Common-Law Partner for Sponsorship in Canadian Immigration

A common-law partner who can be sponsored under the Common Law Partner Sponsorship scheme:

• isn't legally married to you

• can be of any sex

• is 18 or older

• has been living with you for at least 12 consecutive months, demonstrating:

  • continuous cohabitation for one year without significant periods apart

  • any separations were due to family obligations, work, or business travel, and were short and temporary

 

It's important to note that if one partner chooses to end the relationship, the Immigration, Refugees and Citizenship Canada (IRCC) will consider the partnership over for the sponsorship application.

 

Eligibility to Sponsor a Common Law Partner

If you're considering sponsoring a person as your common-law partner, you must meet certain criteria. You must:

• have been living with your partner for at least 12 consecutive months in a marriage-like relationship

• be at least 18 years old

• be a Canadian citizen, permanent resident, or a person registered in Canada as an Indian under the Canadian Indian Act

• be able to prove they are not receiving social assistance for reasons other than a disability

• be able to provide for the basic needs of those being sponsored

 

As a sponsor under the Common Law Partner Sponsorship program, you will be financially responsible for your sponsored common-law partner for at least 3 years from the day they become Canadian permanent residents.

 

Choosing the Right Application Class for Common Law Partner Sponsorship

When submitting a sponsorship application for a common-law partner, you need to select the correct "Class of Application". The two choices are the Family Class and the Spouse or Common-Law Partner in Canada Class.

 

You should apply under the Family Class if the person you want to sponsor:

• does not live in Canada

• currently lives with you in Canada but doesn’t plan to stay in Canada while the application is being processed

• you plan to appeal if the application is refused

• you’re sponsoring your conjugal partner or dependent child

 

You should apply under the Spouse or Common-Law Partner in Canada Class if your spouse or common-law partner:

• is currently living with you in Canada and plans to stay in Canada while the application is being processed

• has valid temporary resident status in Canada, or is exempt from needing this status under a public policy

• would like to apply for, and qualifies for, an Open Work Permit so that they can work while the application is being processed

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Understanding the 12-Month Cohabitation Requirement for Common Law Partner Sponsorship

The "Common Law Partner Sponsorship" program requires a minimum of 12 months of continuous cohabitation in a marriage-like relationship. This requirement establishes emotional and financial co-dependency and applies to all common-law partners for Canadian immigration applications.

Notably, the cohabitation requirement for Common Law Partner Sponsorship entails continuous living together, and brief periods apart due to work, business travel, or family obligations are considered acceptable.

 

Common Misconceptions about Common Law Partner Sponsorship

It's incorrect to assume that you can sponsor your common-law partner as soon as you start cohabiting. The "Common Law Partner Sponsorship" application process necessitates a completed year of cohabitation before becoming eligible for sponsorship.

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Additionally, do not confuse the three-year requirement in family law interpretation of common-law with immigration regulations. For Common Law Partner Sponsorship in the immigration context, you need to have cohabitated in a marriage-like (common-law) relationship for a period of 12 months.

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Can I sponsor my common-law partner if I am currently not living inside Canada?

The physical presence requirements when opting for Common Law Partner Sponsorship differ for Canadian Citizens and Canadian Permanent Residents.

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Canadian Citizens: When sponsoring your common-law partner under the Common Law Partner Sponsorship program, Canadian citizens can apply for the sponsorship from outside Canada. You must sign a declaration and convince the immigration officer that you and your common-law partner intend to move to Canada once the application has been processed.

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Canadian Permanent Residents: To be eligible for Common Law Partner Sponsorship, Permanent Residents must be physically present & living inside Canada. They cannot sponsor their common-law partners while residing abroad.

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Can I sponsor my common-law partner if they are currently living outside Canada?

Common Law Partner Sponsorship requires a minimum of 1-year of continuous cohabitation when applying to sponsor your common-law partner. Even after fulfilling this requirement, the partners may temporarily live apart while maintaining their common-law partnership status.

 

These temporary separations can be due to:

• Educational or employment-related reasons

• Death or illness of a family member

• Extreme country conditions such as war or political unrest.

 

In such cases, you may still qualify for Common Law Partner Sponsorship if you provide documentation to support your situation and show intent to resume cohabitation as soon as conditions change. It's vital to quickly reconcile and demonstrate intent to remain together. Prolonged separation may adversely affect the application's success.

 

Can I sponsor my common-law partner if either of us were previously in a common-law relationship?

A common-law relationship concludes when a partner passes away or one partner chooses not to continue living together. If you've been in a common-law relationship before and want to apply for Common Law Partner Sponsorship, you must provide evidence that the previous relationship has ended.

 

Can I sponsor my common-law partner if either of us are legally married to another person?

Individuals married to others may qualify for Common Law Partner Sponsorship if they've ended their marriage and lived apart from their spouse for at least a year. During this period, they must have lived with their common-law partner. A common-law relationship doesn't begin until the couple is physically separate from their spouse. If one or both individuals involved are still legally married and living together, the law cannot recognize their common-law relationship.

 

What are the income requirements for a Common-law partner Sponsorship application for Canada?

Typically, there's no income requirement for Common Law Partner Sponsorship. The financial requirements change when sponsoring a common-law partner who has a dependent child. Sponsors must then meet the Minimum Necessary Income (MNI) as determined by Immigration, Refugees and Citizenship Canada (IRCC). Sponsors must also sign an undertaking of three-year financial support for the common-law partner after they become permanent residents of Canada.

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Note: Your financial commitment will remain in place for 3 years even if you and your common-law partner break-up/ are not together anymore.

 

Assessing a Common-Law Partnership

 

Without a marriage certificate, validating a common-law partnership becomes challenging. However, Common Law Partner Sponsorship can be proven through:

• Declaration of common-law partnership​

• Proof of joint property ownership

• Shared bank accounts or credit cards

• Common mailing address

• Joint utility bills

• Copies of government-issued IDs

• Life insurance beneficiary nomination

• Joint household expenses

• Pay stubs or tax forms indicating a common address

 

Prohibited Common-law Partnerships

A person can't have more than one common-law or conjugal partner at the same time. Polygamous-like relationships don't qualify as common-law or conjugal partner relationships.

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Specific relationships are not recognized as common-law partners specifically for matters of Canadian immigration. These include incestuous relationships, one or both partners under the age of consent, and partners detained or incarcerated for what would be offences in Canada under the Criminal Code.

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Always remember that the burden of proof lies with the applicant. The immigration department of Canada will make a decision on proof that they find genuine and authentic. If for any reasons, an assessing officer doubts that your relationship has been purposely entered into for Canadian permanent residence, your application will be denied.

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Step-by-Step Guide on Filling Out a Common Law Partner Sponsorship Application

Filling out the application can be daunting. Breaking it down into smaller steps can simplify the process:

Step 1: Fill out the forms in the application package. Be careful to include all details as accurately as possible.

Step 2: Gather all the necessary documents as per the IRCC checklist. This includes proofs of relationship, identification documents, and any other requested documentation.

Step 3: Pay the application fees, including processing fees, right of permanent residence fee (RPRF), and biometrics fee (if required).

Step 4: Submit the application to the IRCC. Ensure that it is sent to the correct address to avoid delays or loss of the application.

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Understanding the Grounds for Refusal of Common-Law Partner Sponsorship Application in Canada

While applying for a Common-Law Partner Sponsorship in Canada, it is critical to be aware of potential grounds for refusal. This understanding can help in better preparing your application and potentially avoiding refusal. The grounds for refusal can broadly be categorized as follows:

 

1. Incomplete or Incorrect Information:

The Canadian immigration authorities pay very close attention to the details provided in your Common Law Partner Sponsorship application. If they identify missing, inconsistent, or incorrect information, it could result in a refusal. Be sure to double-check all the details and ensure they are accurately represented before submitting your application.

 

2. Insufficient Evidence of Relationship:

The application for Common Law Partner Sponsorship must contain convincing evidence demonstrating the genuineness of your relationship. This can include shared assets, joint bank accounts, cohabitation proof, correspondence, and more. A lack of sufficient evidence to corroborate your common-law relationship can lead to application refusal.

 

3. Failure to Meet Financial Requirements:

If you fail to meet the Minimum Necessary Income (MNI) requirements (where applicable), your application may be refused. The MNI is especially crucial when the sponsored common-law partner has a dependent child.

 

4. Criminal Inadmissibility:

Criminal offenses can lead to inadmissibility, resulting in refusal of the Common Law Partner Sponsorship application. This applies to both the sponsor and the applicant. It's advised to consult with an immigration expert if you or your partner have any criminal record.

 

5. Medical Inadmissibility:

Medical conditions that could place excessive demand on Canada's health or social services may result in application refusal. A thorough medical examination is part of the immigration process, and inadmissibility could be based on the results of this exam.

 

6. Misrepresentation:

Deliberate misrepresentation or withholding of material facts in your application can lead to a refusal, and you may also be barred from entering Canada for five years. It is essential to be truthful and transparent throughout the application process.

 

7. Non-compliance with Regulations:

Non-compliance with the Immigration and Refugee Protection Act (IRPA) can lead to application refusal. This could include not meeting the legal definition of a common-law partnership, such as being in a polygamous-like relationship or falling within the prohibited degrees of consanguinity.

By understanding these potential grounds for refusal, you can better prepare your Common Law Partner Sponsorship application to increase the chances of a successful outcome. If you need additional help or have unique circumstances, consulting with an immigration professional can provide personalized guidance.

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Common Mistakes to Avoid in a Common Law Partner Sponsorship Application

Submitting an application without thorough checks or incomplete supporting documents are among the most common spousal sponsorship mistakes. For example, missing a signature on one of the forms, providing inconsistent information about the relationship timeline, or neglecting to include the cohabitation evidence can result in delays or refusal of the application. It's crucial to go through the checklist provided by Immigration, Refugees and Citizenship Canada (IRCC) and ensure that all the required elements are present and accurate.

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The Role of a Co-signer in a Common Law Partner Sponsorship Application

A co-signer can significantly improve the prospects of a successful application, especially when the sponsor doesn't meet the Minimum Necessary Income requirement. The co-signer must be a Canadian citizen or permanent resident who is at least 18 years old. They also need to meet the same eligibility requirements as the sponsor.

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Appealing a Rejected Common Law Sponsorship Application

If a Common Law Sponsorship application is rejected, the sponsor has the right to appeal to the Immigration Appeal Division (IAD) within 30 days of receiving the refusal. The IAD will then review the application and the reasons for rejection, and may overturn the decision if they find it was wrong in law or fact, or if it was unfair or unreasonable.

 

Impact of the Sponsor's Immigration Status on the Application

The immigration status of the sponsor can have a significant impact on the application. A Canadian citizen can apply from outside Canada and has fewer residency obligations compared to a permanent resident, who must live in Canada to sponsor a common-law partner.

 

Explaining the Legal Aspects of a Common Law Relationship

In the eyes of the Canadian law, a common-law partnership exists when two people have lived together in a conjugal relationship for at least 12 continuous months. The case, M. v. H., [1999] 2 S.C.R. 3, set a precedent, recognizing the rights and obligations of common-law partners.

 

The Importance of Legal Advice in the Common Law Partner Sponsorship Process

Professional legal advice can be a game-changer in complex immigration matters. Immigration lawyers or consultants can guide you through the application process, advise on the best strategies, and help avoid common pitfalls.

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Frequently Asked Questions (FAQs) on Common Law Partner Sponsorship

 

Can I sponsor my common-law partner if I have a criminal record?

This depends on the nature and severity of the crime, the time elapsed since the crime, and whether it involved violence, especially domestic violence. For instance, if a sponsor was convicted of a violent crime five years ago, they would be ineligible to sponsor under Canadian immigration law. In this case, rehabilitation or a record suspension (formerly a pardon) could change the sponsor's eligibility.

 

How long does the Common Law Sponsorship process take?

As of 2023, the estimated processing time for a Common Law Partner Sponsorship application is 12 months. However, delays can occur if the application is incomplete or if additional supporting documentation is requested.

 

What happens after my common-law partner sponsorship application is accepted?

Upon acceptance, your partner will receive a confirmation of Permanent Residence (COPR) and a visa (if they're from a country that requires it). The COPR will have an expiry date, and your partner must enter Canada before this date.