Immigration Corner | Do We Qualify As Common-Law Partners – Part II

 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. We also talk every day via Zoom. I applied for a visitor’s visa and didn’t get it, so I couldn’t visit him for the Christmas. Due to the virus pandemic, 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 has 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 marries me? Can we marry via Zoom? Looking forward to your response.

– J.C.

Dear J.C.,

Last week, I responded to the first part of your question. I noted that it appears that you are in a conjugal relationship, although a case could be made for a common-law relationship, considering COVID-19. This would hinge on the evidence that you are able to produce.

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

A conjugal relationship is one where the parties have been together for a minimum of one year and can provide proof of some degree of permanence in their relationship. This does not necessarily mean sexual relations. The parties will need to show a strong commitment to each other, with evidence of financial, social, and emotional interdependence.

You indicated that your partner has been separated for the past five years, but that he is unable to get a divorce at this time. You did not indicate the reason, but you appear to be hopeful. Just note that you can only marry him if he has a formal divorce certificate.

If your moral or religious persuasion permits you, there may be a solution. You do not need to wait on the divorce, as he can sponsor you without having a formal divorce if he is able to provide the necessary proof of termination of the previous relationship and the stability of his relationship with you.

Under the Canadian Immigration and Refugee Protection Act and supporting regulations, your partner can sponsor you if he can clearly demonstrate that his marriage has irretrievably broken down, that he has been living separate and apart from his wife for at least one year, and he has been in a conjugal or common-law relationship with you for at least one year.

Your partner must establish that he has not maintained an intimate relationship with his wife during the same period that he has been in a relationship with you. Therefore, you should be looking for evidence of a written, formal declaration that the relationship with his wife has ended. This could take the form of a separation agreement, a court order, change of last will and testament, change of beneficiary on insurance policies, declaration to Canada Revenue Agency, and so forth.

Although evidence of cohabitation is a strong factor, Canadians and permanent residents can sponsor a foreign partner even if they are not able to live together or get married, provided that they have been in a relationship for a minimum of one year.

POSSIBLE IMPEDIMENTS

The Canadian government has recognised that individuals may be in a committed relationship, but there may be some impediments to continuous cohabitation and marriage. Some of the impediments could be because of immigration rules, or laws which serve as a compelling barrier to the relationship.

The inability to cohabit due to any form of ‘penal control’ is something that you should discuss with your immigration lawyer. Persons who are in a conjugal relationship for at least one year, may be considered to be in a common-law relationship, if the reason that they are unable to cohabit is due to persecution or any form of penal or social control imposed by a government.

The term ‘persecution’ includes a fear of oppression or harassment and any form of penal control. This could include any form of strong social sanctions. Therefore, any form of actions taken by a state or government to control, oppress or punish individuals could be used on strong grounds for challenging existing laws and regulations.

Given the above, couples may have a strong case due to the restrictions placed on them as the world deals with the various COVID-19 limitations . I strongly recommend that you use my article as a guide to have a more wholesome discussion with a Canadian immigration lawyer, to assist you with making the best decision for you and your partner.

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.