Immigration and family law define common-law relationships differently, and each definition gives rise to unique rights and responsibilities.
One common misconception I encounter when helping clients with spousal sponsorship applications – which allow Canadian citizens and permanent residents to sponsor their spouses or common-law partners to become permanent residents of Canada – concerns the financial undertaking set out in the Application to Sponsor, Sponsorship Agreement and Undertaking (form IMM 1344). This form often creates confusion about the sponsor’s financial responsibilities and the mistaken belief that once a couple is considered “common-law” for immigration purposes, they must be common-law for every other purpose as well.
That is simply not how Canadian law works.
The term “common-law” is used in different areas of law, but the definition and legal consequences can change depending on the laws involved. A couple may therefore be common-law for immigration purposes but not for family law purposes.
How does immigration law define common-law?
For immigration purposes, the starting point is relatively simple. Immigration, Refugees and Citizenship Canada (“IRCC”) generally considers two people to be common-law partners if they have lived together in a conjugal relationship for at least 12 consecutive months. That definition serves an immigration purpose. Among other things, it determines whether a person may be recognized or sponsored as a common-law partner.
But it does not follow that, after those same 12 months, family law will treat the couple as spouses for purposes such as property division or partner support. There is also no single Canadian definition of “common-law” for family law purposes.
“Common-law” is a familiar everyday term, but family law largely falls under provincial law, and each province may use a different legal category with its own test. Therefore, one of the first questions must be: which province do the parties live in?
Common-law vs. adult interdependent relationships
Consider Alberta.
Alberta legislation uses the term “adult interdependent partner.” Generally, two people may become adult interdependent partners when one of the following is true:
- they have lived together in a relationship of interdependence for at least three years,
- they have a child together and live in a relationship of some permanence, or
- they have signed an adult interdependent partner agreement.
The law also looks beyond simply sharing an address. People in an adult interdependent relationship must share one another’s lives, be emotionally committed to one another, and function as an economic and domestic unit.
That difference matters in practice.
Imagine a couple who begins living together in Alberta. After 12 months in a genuine conjugal relationship, they may qualify as common-law partners for immigration purposes. One partner may even be eligible to sponsor the other on that basis. Yet the couple may not satisfy Alberta’s definition of adult interdependent partners merely because the first anniversary has passed.
In other words, immigration status does not automatically equal family law status.
What financial obligations does the undertaking create?
The same is true in reverse: form IMM 1344, which is part of the immigration sponsorship application, sets out financial obligations under immigration law, but it is not a domestic contract that sets out what happens if the relationship ends.
When someone sponsors a spouse or partner for permanent residence, the sponsor signs an undertaking to provide financial support. That undertaking generally lasts for three years from the day the sponsored person becomes a permanent resident, with some exceptions. The obligation to provide support also continues even if the parties later separate or divorce. That is a significant legal obligation, but it should not be confused with the body of rights and obligations arising under family law.
It should be understood that the undertaking creates its own form of financial exposure. If the sponsored person receives social assistance during the undertaking period, the sponsor may be required to reimburse the government. Under the Immigration and Refugee Protection Regulations (“IRPR”), the undertaking obliges the sponsor to repay the federal or provincial government for social assistance paid to the sponsored person. A default may arise when the government makes a payment that the sponsor agreed to repay or another obligation under the undertaking is breached.
But that is not the same thing as saying that IMM 1344 determines spousal or partner support following separation.
The sponsorship undertaking does not decide who owns the family home, how property will be divided, whether a former partner meets the legal requirements for partner or spousal support, or how an otherwise valid marriage or cohabitation agreement will operate. Those questions must still be determined under the relevant family law legislation and on the particular facts of the relationship.
How an immigration sponsorship affects family law issues
This is where the two areas of law can overlap.
An immigration sponsorship undertaking may be relevant to family law issues. Alberta courts have considered sponsorship undertakings when assessing spousal support in cases where one party had immigrated to Canada for marriage and separated shortly after. For example, in Nathoo v. Nathoo, the Court treated the existence of the sponsorship undertaking as an important factor where the sponsored spouse had little income and was at risk of relying on social assistance.
A court may therefore consider the undertaking as evidence in a family law case. Similarly, describing someone as a “common-law partner” in an immigration application may help prove when the relationship was represented and understood as a common-law relationship. Neither, however, automatically creates entitlement to support or determines its amount or duration. Those questions remain governed by the relevant family law principles. Put simply, an immigration undertaking and family law support may be related, but they are not the same thing.
This distinction is particularly important for newcomers to Canada. A person may assume that because the federal government recognized a relationship for immigration purposes, Canadian law automatically grants the parties the same rights and obligations as spouses. That assumption may be wrong.
Similarly, sponsoring a spouse or partner does not mean that the sponsor has agreed to every financial consequence that could arise under family law. What it means is that an immigration undertaking that has come into effect does not disappear simply because the relationship ends.
That is why asking whether two people are “common-law” is often only the beginning of the analysis.
The better questions are: Common-law for what purpose? Under which legislation? In which province? And what legal consequence are we trying to determine? Canadian relationships increasingly cross borders, provinces and legal regimes. The terminology may sound familiar across those regimes, but familiar words can carry very different legal consequences. Understanding that distinction early can avoid confusion and, in some cases, costly mistakes.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Sonia Montes Figueroa
