Fri | Nov 27, 2020

Immigration Corner | Do we qualify as common-law partners?

Published:Tuesday | August 11, 2020 | 12:17 AM
Deidre S. Powell
Deidre S. Powell

Dear Ms Powell,

I have been in a relationship since last year Easter. We met online, and he visited last summer and spent the whole time with me last year, and we talk every day via Zoom. I applied for a visitor’s visa and didn’t get it, so I couldn’t visit him for Christmas. Due to the virus, he hasn’t been able to visit this summer. He said that he can sponsor me, but we are not sure as he is having difficulties with getting his divorce although he left his wife about five years ago. I am a Christian, and so we haven’t had sex. Does it mean that because we haven’t had sex that we would not qualify as common-law partners? Can he really sponsor me? Would it be easier if he just married me? Can we marry via Zoom? Looking forward to your response.

– J.C.

Dear J.C.,

Canadian citizens and permanent residents can apply for their spouses to live permanently with them in Canada if they are able to satisfy the requirements. The key issues are qualification based on the definition of a spouse, eligibility of the sponsor, and the sponsored person. These are all important issues, especially in relation to COVID-19, and so I will be writing a series of articles to provide a wholesome response.

Who is a spouse?

The definition of spouses under the immigration laws of Canada can be found in the Immigration and Refugee Protection Act and supporting Regulations (IRPR). The formal definition of a spouse is a partner to whom you are legally married. This includes relationship with opposite or same gender. The key issue is that you would need to be married in accordance with the laws of both the country where the marriage takes place and in Canada. Zoom marriages are not valid under the laws of Canada. (I have written a previous article on this.)

The definition of a common-law partner under the IRPR is a person who has been living together with another person in a conjugal relationship for at least one year.

The definition of a conjugal partner is a person who is living outside of Canada but who has had a binding relationship with a sponsor for at least one year although not able to live with their partner.

In your case, based on the information you have provided, yours appear to be in a conjugal relationship, and so I will elaborate on the definition of a conjugal relationship under the laws of Canada.

How to prove a conjugal relationship?

The word “conjugal” is not defined in the legislation, however, through the regulations and legal cases, there have been several factors that have been used by the immigration authorities to assess whether a couple is in a conjugal relationship.

Conjugal does not only mean sexual relations. This applies to a relationship with a significant degree of attachment between two partners. The key issue is to establish that you are in a committed relationship and able prove some degree of permanence. You will need to be able to prove that you are financially, socially, emotionally, and physically interdependent on each other.

Some ways to establish your relationship can be by naming one another as beneficiaries on insurance policies or within a last will and testament ability to prove joint ownership of possessions, involved in joint decision-making about important issues affecting each other such as healthcare decisions, proof of financial support of one another by having joint expenses or sharing of income. When taken together, these facts could be used to indicate that there is a significant commitment and mutual interdependence. You should be able to establish that you are in a monogamous relationship of some permanence like that of a married couple.

KEY QUESTIONS

To help you assess your eligibility, I would suggest that you consult with an immigration lawyer and be prepared to answer the following questions:

1. When he visits, do you have shared shelter and sleeping arrangements?

2. Are you/is he involved with another person when the other person is absent? Do your sexual and personal behaviour reflect one of fidelity, commitment, and strong feelings toward one another?

3. Do you share household chores and responsibilities? Does he help you with repairs to the home?

4. Are you involved in social activities in the community?

5. Does he visit with your other family members?

6. Can your family members attest to the relationship?

7. Do other persons in the community regard you as a couple?

8. Does he provide financial support? Does he send you money? Does he bring you gifts? Do you own vehicles or properties together? Receipt, titles?

9. Have you spoken or had Zoom calls with his family?

10. Have his family members visited you?

OTHER CONSIDERATIONS

There is usually no one document that can be used to establish a common-law or conjugal relationship. This is the key distinction between a formal marriage and these types of relationships. The important thing is that the Canadian government requires the passage of at least one year. Additional issues based on your question are, how does COVID-19 affect your relationship and whether a married man/non-divorced man can sponsor a conjugal partner? Stay tuned for next week’s article!

Deidre S. Powell is a Canadian immigration lawyer with office located in Ottawa, Ontario. Send your questions and comments to info@deidrepowell.com. Connect with her on Twitter, LinkedIn, Facebook, and Instagram or via www.deidrepowell.com.