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Are You Common-Law? - Russ Weninger Immigration Lawyer in Calgary, AB :: Russ Weninger Immigration Lawyer in Calgary, AB
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Written By: admin
05/3/16

A few years ago, my significant other was at the hospital for minor surgery. The two of us were sitting in front of a nurse who was signing her in. The nurse asked a number of questions related to her personal information, such as her name, age, and address. At one point, the nurse asked about her marital status. Without even thinking, my significant other responded that she was single.

I was momentarily stunned by the answer and attempted to clarify while the nurse looked at us awkwardly. “Did you mean common-law?” she asked.

“Oh yeah, that’s what I meant,” my significant other responded.

Sometimes when people are asked the question about their marital status, they think it’s a binary choice – you’re either married or you’re not. In fact, in most cases under Canadian law there are at least three choices – single, married, or common-law. (Other options may include widowed, separated, divorced, etc.)

A recurring problem among applicants for permanent residence is deciding whether or not they are in a common-law partnership. Not all countries around the world confer legal status on relationships involving cohabitation (living together). For this reason, many visitors and foreign workers struggle with the concept of common-law relationships. Even among Canadians, there are often misconceptions about whether a person is actually in a common-law relationship.

 

Different Definitions

In all fairness, there is often quite a bit of ambiguity in the legal conception of common-law relationships. For example, a couple may be “living common-law” when they have only just begun to live together. However, they may be considered common-law partners for various legal purposes after they have lived together for certain periods of time. For tax and immigration purposes, a couple will likely be common-law if they have lived together for a 12-month period of time. However, for provincial family law purposes, a couple may be considered common-law (or in an Adult Interdependent Relationship in Alberta) only after they have lived together for a longer period (such as 3 years in Alberta).

Different legislation, whether provincial or federal, may define common-law partnerships differently. Sometimes people may even wonder if they are, legally speaking, in a common-law relationship with roommates.

Practically speaking, a common-law relationship can be thought of as relationship in which two people live together in a “conjugal” relationship. A conjugal relationship usually involves romantic intimacy and sex. Of course, romantic intimacy and sex can be defined in different ways, and it should be acknowledged that some couples aren’t particularly romantic and may not have a lot of sex, but they may still count as common-law. A good rule of thumb is that if a couple typically sleeps in the same bed, they are probably common-law.

There is also the problem of what counts as living together. Some couples may have different residences, but sleep in the same bed a few nights a week. In some relationships, one person will spend a lot of time travelling, say for work, while the other stays at home. Perhaps they lived together for a while, but then one person moved to another city to attend school, and after years of a long-distance relationship, they are once again living under the same roof.

 

Being vs. Proving

In the immigration context, being common-law is extremely important. If an applicant for permanent residence, or even temporary residence, mischaracterizes his or her relationship – even inadvertently – this can lead to a finding of misrepresentation. If Immigration, Refugees and Citizenship Canada determines that a person has misrepresented his or her marital status, that can be grounds for denying an application for permanent residence and barring the applicant from re-applying for a period of 5 years. In other words, the stakes are high when it comes to accurately describing your marital status to IRCC.

There are two types of misrepresentation regarding common-law status. A person may claim to be in a common-law relationship when he or she is in fact not in such a relationship. This may be done for the purpose of helping a boyfriend or girlfriend, or simply a friend, qualify for permanent residence.

Probably more common is the misrepresented claim that a person is single when he or she is in fact in a common-law relationship. This is usually done because a person believes it will be easier to apply as a single person, or because the applicant believes that he or she lacks proof of the common-law relationship. Also in some cases, people applying for permanent residence may not even realize that they are in common-law relationships because they are unaware of the legal significance of cohabitation.

The belief that it is easier to apply as a single person than as someone in a common-law relationship is most often a false belief. The added complexity of applying for permanent residence with a common-law partner as a dependent is minimal. There are only a few extra immigration forms, and a few extra supporting documents.

I find that people who are tempted to downplay their relationship are often concerned about proof. Some couples are worried about a lack of documentary proof – there isn’t any jointly owned property, there isn’t a lease with both names, etc. In fact, such evidentiary problems are not real problems at all. Statutory declarations from the couple, along with statutory declarations (or even written statements) from friends, family members, employers, landlords, or anyone who knows the couple can be used as evidence of the common-law relationship. Photos, travel tickets, and receipts could also be used to establish that the couple are in a common-law relationship.

If there’s any doubt about whether a relationship counts as common-law, I’d recommend speaking to a lawyer. As mentioned above, if you apply for permanent residence and fail to acknowledge a common-law relationship, IRCC can deny your application and deport you from Canada. And if you successfully obtain permanent residence, you may be unable to sponsor your common-law partner in the future if you failed to mention him or her on your original application.

For those reasons, it’s important to be clear about whether you are in a common-law relationship, and to honestly convey that information to IRCC.

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