Keith Mack
Applying for common-law partnership in Canada requires a couple to prove that they have been cohabiting in a marriage-like or conjugal relationship for at least 12 months. Unlike married couples, common-law partners do not have a legal certificate validating their relationship, so they must provide other forms of evidence to prove the authenticity of their relationship to immigration officials. This can include proof of cohabitation, shared bills, living arrangements, and financial co-dependency. The sponsor must also be either a Canadian citizen or a permanent resident of Canada, with the intention of residing in Canada, and must be able to provide basic necessities for their partner. Given the complexity of the application process, it is recommended that applicants seek professional help.
| Characteristics | Values |
|---|---|
| Definition of common-law partnership | "A person who has been living with another person in a conjugal relationship for at least one year" |
| Common-law partnership qualifications | Cohabitation for at least one year, no extended periods apart, combined affairs, shared household |
| Sponsor qualifications | Canadian citizen, permanent resident of Canada or Registered Indian; permanent resident of Canada or intends to reside in Canada; financially able to provide basic necessities |
| Application process | Sponsor and sponsored partner sign an undertaking agreement; provide proof of cohabitation and duration of relationship; demonstrate genuine commitment |
| Application time | Typically takes about 12 months from start to finish |
| Application pathways | Family Class (processed overseas) or Spouse or Common Law Partner in Canada Class (processed in Canada) |
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What You'll Learn
Sponsorship applications for common-law partners
In Canada, common-law partnerships are recognised as legitimate relationships. Common-law partners have the same rights as married couples to their partner's pensions, social benefits, and insurance benefits. Canadian citizens, permanent residents, or Registered Indians can sponsor their common-law partners for permanent residency in Canada.
To be considered a common-law partnership, you and your partner must be at least 18 years old, not legally married, and have cohabited for at least 12 consecutive months. This requirement may vary depending on the province or territory, as in Ontario, where the requirement is three years. If the couple has a child together, the cohabitation requirement is reduced to one year.
The couple must demonstrate a marriage-like commitment, with combined affairs and interdependence in terms of financial and social values. There can only be interim separation for legitimate purposes such as business trips or family visits, and the partners must intend to reside together in Canada.
To sponsor a common-law partner, the sponsor must be either a Canadian citizen, a permanent resident of Canada, or a Registered Indian. The sponsorship application must include sufficient supporting documentation and information to prove the genuineness of the relationship. This can include proof of cohabitation and the duration of the relationship. It is recommended that applicants seek professional help when submitting their application.
The length of the undertaking for residents of Quebec is different from the rest of Canada. For sponsorships outside of Quebec, the undertaking is valid for three years from the day the sponsored partner becomes a permanent resident.
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Common-law rights in British Columbia
To be recognised as a common-law spouse in BC, a couple must meet the definition of a "spouse" under section 3 of the Family Law Act. This definition encompasses legally married spouses and unmarried couples who have cohabited in a marriage-like relationship for a continuous period exceeding two years. Notably, couples who have lived together for less than two years but have a child together can also be considered common-law spouses for spousal support purposes.
When it comes to tax laws, the federal government of Canada has a distinct definition for common-law spouses. According to this definition, a couple is considered common-law after cohabiting in a "conjugal relationship" for just one year. This shorter timeframe can have implications for benefits, the Canada Pension Plan, and Old Age Security.
It is important to note that common-law relationships in BC do not require any formal registration or documentation. The status of a common-law spouse is automatically acquired after fulfilling the cohabitation requirements, unless an explicit opt-out from the Family Law Act regime is exercised. This opt-out can be achieved through a cohabitation agreement.
Additionally, when it comes to immigration and sponsoring a common-law partner to Canada, specific criteria must be met. The sponsor must be a Canadian citizen, a permanent resident of Canada, or a Registered Indian, with the intention to reside in Canada. They must also demonstrate the financial ability to provide for their partner's basic necessities. Both the sponsor and the sponsored partner must sign an undertaking agreement outlining the sponsor's commitment to support the sponsored partner during their stay in Canada.
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Common-law rights in Ontario
In Ontario, a couple is considered to be in a common-law relationship if they have lived together for at least three years or have a child together and have lived together in a relationship of some permanence. However, for immigration purposes, the federal government defines a common-law partner as someone who has lived with their spouse for at least one year.
Common-law spouses in Ontario do not have the same property rights as married couples. When common-law spouses separate, general property laws apply, and they may be entitled to property or compensation for property acquired during the relationship. For instance, if they contributed to purchasing a home, they may be entitled to a share of the home proportionate to their contribution. Establishing entitlement in these cases typically requires legal intervention. Common-law spouses can also enter into a domestic contract, such as a cohabitation agreement or separation agreement, that outlines their respective rights to property.
In terms of child custody and support, common-law spouses in Ontario have the same rights as married spouses. If the relationship ends and children are involved, arrangements for custody, access, and child support will be made as if the couple were married. These arrangements can be addressed in a cohabitation or separation agreement, but if the parties cannot agree, court intervention may be necessary.
Estate planning is another important consideration for common-law spouses in Ontario. Unlike married spouses, common-law spouses do not have the right to inherit from an intestate estate if their partner dies without a will. Therefore, it is crucial for common-law spouses to have a will and estate plan in place to ensure their partner is protected. Under the Canada Pension Plan, a surviving spouse, regardless of their marital status, is entitled to their deceased spouse's pension.
It is important to note that applying for common-law sponsorship in Canada can be complex, and it is recommended to seek professional help. The eligibility criteria include requirements such as the sponsor's citizenship or residency status and their financial ability to provide for their common-law partner.
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Common-law rights in Quebec
In Quebec, one in three couples lives together without being married, and these couples are officially referred to as "de facto" couples or "de facto unions". To be considered a common-law couple in Quebec, living together is not always necessary. However, to be considered a de facto union, partners must live together for at least two years, and they must share a household.
Legal rights for common-law couples in Quebec differ from those of married spouses or those in a civil union. De facto couples do not have the same property rights or inheritance rights as married couples. Married spouses have specific rights to the family home, while de facto couples do not have the same automatic rights to the family home or any other property acquired during the relationship. To ensure that a de facto partner inherits some of the property, such as a share of a family home, it is necessary to specify this in a legal will. If a person dies without a will, their property will be divided between their heirs according to Quebec's succession law, outlined in the Civil Code of Quebec.
Common-law couples can use a contract to agree on various aspects of their life while living together, including the division of property. Additionally, they can use legal documents to avoid unpleasant surprises, such as the right to a "compensatory allowance" for work done by one person that benefited the other.
If you are seeking to sponsor your common-law partner for permanent residence in Canada, it is important to note that these applications can be difficult to pursue independently. The sponsor must be either a Canadian citizen or a permanent resident of Canada, and they must demonstrate the financial ability to provide basic necessities for their partner. Both parties must sign an undertaking agreement outlining the sponsor's commitment to support the sponsored partner with basic needs during their time in Canada.
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Common-law rights in other provinces
Common-law rights and benefits vary across Canada's provinces and territories. While some provinces are reconsidering the duration requirements for recognizing common-law relationships, others are expanding the rights and protections available to common-law partners.
In Ontario, for example, a couple is considered to be in a common-law relationship after living together for at least three continuous years. If they have a child together, they only need to have cohabited for one year. However, unmarried partners in Ontario are not considered common-law spouses and do not have the same rights as married couples when it comes to property division.
In contrast, British Columbia's family law and common-law partner entitlements are among the most generous in Canada. BC's Family Law Act expanded the definition of a "spouse" to include people in a “marriage-like relationship" who have lived together for at least two years. This means that common-law spouses in BC have the same rights as married spouses when it comes to property division and spousal support.
In Nova Scotia, the Maintenance and Custody Act provides the rules for common-law relationships. Couples must register as having a "domestic partnership" under the Vital Statistics Act to receive marital rights. Additionally, they must live together for a minimum of two years before claiming property and spousal support rights on par with married couples.
Saskatchewan is the only province in Canada where traditional and common-law marriages have the same rights and obligations. Notably, if an individual lives with their partner in Saskatchewan for two years, their common-law status will invalidate their will automatically.
Quebec stands out as the only province that does not recognize common-law marriage. As a result, common-law partners in Quebec do not have entitlements under intestacy rules and are not entitled to any inheritance unless they are named as beneficiaries in a will.
Navigating common-law rights in Canada can be complex due to the varying laws and requirements in each province and territory. It is always advisable to seek legal counsel and consider drafting agreements or wills to protect one's interests and ensure rights are upheld.
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Frequently asked questions
A common-law partnership in Canada is defined as "a person who has been living with another person in a conjugal relationship for at least one year." This means that both partners must be cohabiting together for at least one year, not have left one another for more than a short period (for business or family trips), and demonstrate combined affairs and shared households.
The requirements for a common-law partnership sponsorship application include providing proof of cohabitation for at least 12 months of continuous cohabitation in a marriage-like relationship. This demonstrates emotional and financial co-dependency. Brief periods apart due to work, business, or family obligations are acceptable.
The sponsor must be either a Canadian citizen, a permanent resident of Canada, or a Registered Indian. They must reside in Canada permanently or demonstrate the intention of residing in Canada. They must also have the financial ability to provide basic necessities for their common-law partner.
Common-law relationships are more difficult to prove for legal purposes than marriage, as there is no legal certificate validating the relationship. It is important to provide strong proof of the authenticity of the relationship, such as shared bills, living arrangements, and responsibilities, to show that the relationship is genuine and not just for immigration purposes.
It is recommended to seek professional and experienced help when applying for common-law partnership sponsorship, as these applications can be difficult to pursue on your own. Immigration law firms and professionals can provide guidance and advice on the process and help increase the chances of a successful application.
