Immigration Newsweek
By Atty. Henry Moyal
There is one area of immigration law that Canadian visa officers rarely have mercy – not declaring past common law relationships.
A review of the jurisprudence on this subject reveals that in most cases appeals are not successful and the applicant is refused entry to Canada.
In many cases, the applicants’ reasoning is that “common law” relationships are not recognized in their country or that they were not aware that living together was an important matter to declare. Both of these arguments have been unsuccessful in persuading an judge or visa officer primarily due to the fact that the applicants are applying for Canada – hence Canada law prevails and it is how Canada defines common law relationships. In other words, an applicant is applying to Canada so they must be aware of the laws to immigrate to this country. The law of the country of origin is not relevant.
Under Canadian Immigration law the definition of common law partner under section 1(1) IRPA ‘ is an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year.’
Therefore, if an applicant has been living with another in a “marriage like” relationship for at least one year that will trigger common law partner status. It should be noted that a person who is still legally married to another person can still be in a common law relationship.
The most typical scenario in which this causes havoc is when an applicant (who is usually single) enters Canada as a worker or a dependant of a mother’s application. Then, the person returns to the Philippines and marries the applicant and the sponsorship application reveals that the couple were living together before the sponsor became a permanent resident. If so, the applicant will be refused under R117(9)(d) as that would constitute an excluded relationship since the common law relationship was not declared to Canada Immigration at the time the sponsor immigrated to Canada.
It is therefore crucial to understand what constitutes a common law union and what is not. While each case is different, the case law is clear that the following characteristics are integral and part of any common law relationship:
The list is not exhaustive and each situation must be reviewed separately. It is possible for example, to be living at the same address but not be in a common law relationship. The bottom line is that Canada Immigration is very quick to refuse applications when there is any evidence of past common law relationships that were not declared. The consequences can be extreme including an allegation of misrepresentation that comes with a five year ban.
Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario.
The above article is general advice only and is not intended to act as a legal document.
Send questions to Attorney Moyal by email canada@moyal.com or call 416 733 3193
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