Cecily Zamora
In Canada, a common-law partnership is a form of consensual union between two people who live together and are not legally married. The definition of a common-law partnership can vary depending on the context, such as taxes, immigration, or estate planning. For federal tax purposes, 'living common-law' refers to couples who have lived together for 12 continuous months or share a child. In some provinces, a couple is considered common-law after cohabiting for 1 to 3 years, while in others, it may be after 2 years. Common-law partners may not have the same inheritance rights as legally married spouses, and it is important to have a will in place to protect your partner's interests. Canadians can sponsor their common-law partners for permanent residence, but they must prove the credibility and intention of their relationship.
| Characteristics | Values |
|---|---|
| Definition | A person living with a person who they are not legally married to, but are in a conjugal relationship with |
| Common-law status recognition | Recognized in certain situations, and the definition can vary depending on the context |
| Federal tax purposes | Couples living together for 12 continuous months or sharing a child by birth or adoption are considered common-law |
| Immigration | Continuous cohabitation for 12 months is required for immigration purposes |
| Family law | Definition of common law in most contexts is up to each province |
| Common-law status | Refers to whether a person is living with a person of the opposite or same sex as a couple but is not legally married to that person |
| Age limit | All persons aged less than 15 are considered as not living common law |
| Temporary separation | Includes situations where members of a couple are living apart temporarily due to illness, work, or school |
| Sponsorship | Canadian citizens can sponsor their common-law partners from abroad, but they must prove their intention to reside with their partners in Canada |
| Proof of relationship | Applicants must establish their claim in common-law relationships, providing evidence such as documents showing the same address |
| Common-law in different provinces | In Ontario, two people are considered common-law partners if they have been continuously living together in a conjugal relationship for at least three years. In Nova Scotia, a couple is considered common-law if they live together in a marriage-like relationship and refer to themselves as partners or spouses. In Saskatchewan, a couple is considered common-law after living together continuously for at least two years. In Quebec, common-law couples are referred to as de facto unions, and they must live together continuously for at least two years to be recognized for tax purposes. |
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What You'll Learn
Common-law status recognition
In Canada, common-law status refers to a couple that lives together in a conjugal or marriage-like relationship but is not legally married. This includes both opposite-sex and same-sex couples. In most provinces, common-law relationships are recognized after 1 to 3 years of continuous cohabitation or if the couple has a child together. However, the definition of common-law status can vary depending on the context, such as taxes, immigration, or estate planning.
For federal tax purposes, 'living common-law' refers to couples who have lived together for 12 continuous months or share a child by birth or adoption. This definition also applies in the context of immigration. Since family law falls under provincial law, each province may have its own definition of common-law status in other contexts. For example, in Nova Scotia, a couple is considered to be in a common-law relationship if they live together in a marriage-like relationship and publicly refer to themselves as partners or spouses. In Saskatchewan, a couple is considered common law after living together continuously for at least two years, while in Quebec, the requirement is also two years of continuous cohabitation for tax purposes.
It's important to note that common-law spouses are not always treated the same as legally married spouses, especially when it comes to inheritance laws. In most places in Canada, if a common-law partner dies without a will, their estate will be distributed according to default rules that typically prioritize married spouses over common-law partners. Therefore, it is essential for common-law partners to create a will to ensure their partner inherits according to their wishes.
Sponsorship of a common-law partner from abroad is possible for Canadian citizens, but they must prove their intention to reside with their partner in Canada. Visa officers will assess the credibility of the relationship and the couple's intention to establish their life in Canada. The process of sponsoring a common-law partner can be more complex than spousal sponsorship, as there may be more requirements to prove the genuineness of the relationship.
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Common-law inheritance rights
In Canada, common-law status typically refers to a couple living together without being legally married but are in a conjugal relationship. Common-law status varies by province and legal context. Most provinces recognize common-law relationships after 1 to 3 years of continuous cohabitation or if the couple has a child together.
Inheritance law in Canada is a provincial matter, and each province legislates its inheritance laws. Without a will, inheritance is based on the succession laws of the province or territory, which generally prioritize legal spouses, children, and other family members. Common-law partners may not automatically inherit, depending on provincial laws. In regions outside British Columbia, Manitoba, Saskatchewan, and the Northwest Territories, a "spouse" is defined as someone you are married to. Hence, without a marriage certificate, a common-law partner in these regions has no inheritance rights if their partner passes away without a will.
However, with a will, you can choose anyone to inherit your assets, including common-law partners, friends, family members, or charities. Common-law partners can only inherit intestate estates (estates without a will) in the four regions mentioned above.
It is important to understand the rights of common-law spouses in Canada regarding property and assets, especially in the event of a relationship breakdown or the death of a partner. Seeking legal advice and creating a will can help protect the interests of common-law partners and ensure their inheritance rights are upheld according to their wishes.
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Common-law relationship duration
The duration of a common-law relationship in Canada varies depending on the province and the context. For federal tax purposes and immigration, a couple must have lived together for at least 12 continuous months or share a child to be considered common-law partners. However, the definition of common-law status for other purposes is determined by each province. For example, in Ontario, two people are considered common-law partners if they have lived together in a conjugal relationship for at least three years. In Nova Scotia, a couple is considered to be in a common-law relationship if they live together in a marriage-like relationship and publicly refer to themselves as partners or spouses, regardless of the duration of their relationship. On the other hand, in Saskatchewan, a couple is considered to be in a common-law relationship after living together continuously for at least two years.
It is important to note that common-law status in Canada also applies to same-sex couples. Additionally, temporary separation due to illness, work, or school does not affect common-law status.
When it comes to immigration and sponsorship, Canadian citizens and permanent residents can sponsor their common-law partners from abroad, but they must prove their intention to reside with their partners in Canada. Visa officers will assess the credibility of the relationship and the couple's intention to establish their life in Canada. The undertaking length for sponsorship is three years from the day the sponsored partner becomes a permanent resident.
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Common-law immigration sponsorship
In Canada, common-law status typically refers to a couple living together without being legally married but are in a conjugal relationship. Common-law relationships are recognized in Canada in certain situations, and the definition of common law varies depending on the context. For instance, for federal tax purposes, 'living common-law' means living together for 12 continuous months or sharing a child by birth or adoption. The 12-month timeline also applies in the context of immigration.
Canadian citizens and permanent residents can sponsor their spouses or common-law partners who live with them in Canada and have temporary resident status. The sponsor must be 18 years or older and must specify the "Class of Application" on the checklist. The sponsor must also sign an undertaking, promising to financially support the basic needs of their spouse or partner and their dependent children. There are no specific income requirements to sponsor a spouse or partner, but the sponsor must show that they have sufficient income or assets to support them once they arrive in Canada. They must not be receiving income support benefits from any province or be in bankruptcy proceedings. The length of the undertaking is three years from the day the sponsored spouse or partner becomes a permanent resident. During this time, the sponsor is financially responsible for the sponsored partner, even if they separate.
To prove the duration and nature of the relationship, applicants will need to submit documents such as the Relationship Information and Sponsorship Evaluation Questionnaire. Both the Canadian citizen or permanent resident and the foreign national must pass background, security, and medical checks and be approved by Immigration, Refugees, and Citizenship Canada (IRCC) before the sponsored person can receive a visa.
Inland sponsorship applies to partners already living in Canada, and outland sponsorship is for those outside the country. Inland applicants may apply for an open work permit. Processing times vary, but spousal sponsorship typically takes 12 months.
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Common-law separation rights
In Canada, common-law partners do not have the same legal rights and obligations as married couples upon separation. This applies equally to same-sex and opposite-sex couples.
For example, Part 1 of the Family Law Act (FLA), which provides for the equal division of financial gains made during a marriage, applies only to married couples. Unmarried couples are not legally entitled to the division of property. Each partner is entitled only to what they brought into the relationship or acquired during it.
In terms of property, common-law partners do not have an equal right to possess the family home. The home belongs to the person who purchased it and whose name is on the title or lease. If you own your home, you have a legal right to ask your common-law partner to leave if your relationship breaks down. However, unless you are afraid for your own safety, this is not recommended. Courts generally do not look favourably on such action, particularly if your partner is in a less financially stable position than you.
If your partner applies for spousal support, your conduct regarding the home may influence the court's award. If the home is in your spouse's name, you still have some options if you wish to stay in the home, at least in the short term. For instance, if you meet the definition of "spouse" under Part 3 of the Family Law Act, you can apply for a restraining order against someone you have cohabited with for any length of time.
Child support is determined the same way for married and unmarried parents. Both are calculated using the Child Support Guidelines, regardless of whether the support claim is made under the Divorce Act (which applies only to married couples) or the Family Law Act. If your common-law partner has children from a previous relationship who have been living with you, you may be considered a parent to that child for the purposes of child support. Anyone whom the court finds to have acted as a parent to a child may be required to pay child support.
Any parent can apply for custody of or access to a child. Married couples obtaining a divorce will apply for custody under the Divorce Act, while unmarried couples will apply under the Children's Law Reform Act (CLRA).
It is important to understand the distinctions between married spouses and cohabiting partners to protect yourself in the event that your relationship breaks down. Domestic contracts can be helpful in limiting the legal costs that can arise from family court proceedings. If you are living together with another person in a romantic relationship and are not married, you may benefit from having a Cohabitation Agreement prepared to outline the financial terms of your relationship and to minimize any legal disputes that may arise in the event of a later breakdown of your relationship.
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Frequently asked questions
A common-law partnership in Canada is when two people live together in a conjugal relationship but are not legally married.
The time period varies depending on the province and the context. For federal tax purposes, it is 12 continuous months, and this timeline also applies in the context of immigration. For residents of Quebec, it is 2 years for tax purposes. In Saskatchewan, a couple is considered to be in a common-law relationship after living together continuously for at least two years. In Ontario, two people are considered common-law partners if they have been continuously living together in a conjugal relationship for at least three years.
Being in a common-law partnership can have implications for taxes, immigration, and estate planning. For example, in most places in Canada, common-law spouses are not treated the same as legally married spouses when it comes to inheritance under succession laws. Additionally, married spouses have to put less effort into showing the genuineness of the relationship compared to common-law partners.
