Sponsoring a spouse or a common-law partner for permanent residence in Canada has never been an easy task. It is now made even more daunting by the imposition of corona virus travel restrictions in Canada. In the era of COVID-19 regulations, delays in processing and travel restrictions, spouses and common law partners of Canadian citizens and permanent residents have become one of the most endangered and disproportionately affected groups – in stark contrast to Canada’s history of reuniting families under spousal sponsorship immigration laws and regulations. The federal government loosened the cross border travel rules on June 8, 2020 to allow foreigners to visit immediate family members in Canada – allowing, at least in theory, the reunification of foreign spouses and common law partners. While the definition of an immediate family member includes spouses and common-law partners, that inclusion does not automatically grant a foreign spouse or a common law partner entry into Canada. COVID regulations have transferred a significant amount of discretionary decision making from IRCC to Canada Border Services Agency (CBSA). Common law partners of Canadian citizens and permanent residence are at most his under the current framework because they are essentially forced to build a case on the spot to prove the existence of their common law relationship.
Spouses stand in a privileged position under the current framework, since marriage, is de jure relationship, meaning that it has already been established in law and is presumed to be valid by means of a marriage certificate. In contrast, common-law relationships are de facto relationship – their very existence and duration of at least one year have to be established on a case by case basis. This often requires a slew of documentation spanning a period of the existence of the relationship. Foreigners must satisfy border officers that they meet the requirements to enter Canada, but since common law couples often lack definitive proof of their relationship, such as a marriage certificate, they are forced to stitch together a patchwork of documentation showing that they have lived together for at least a year in a real, conjugal relationship. When asked what documents cross-border couples need to provide to prove their common-law status, CBSA couldn’t provide a definitive list since such a list does not exist. When assessing the existence of a common law relationship in the context of sponsored permanent residence applications to Canada, IRCC relies on a variety of factors and documents that have been developed over decades by the Federal Courts and the Tribunals. Currently, CBSA only offers vague suggestions, such as providing a common-law status certificate (which is not a document frequently issued or even existing in most jurisdictions) or other documents showing a shared residential address, such as residential leases, official government documents (IDs, drivers’ licenses) with same address for at least one year etc.
While we live in scary times, love cannot and should not be held hostage to fear and government oversight. If you are a bi-nation common law couple, attempting to reunite in Canada – either on a visitor visa or by applying for permanent residence, having a knowledgeable Canadian immigration lawyer can make a real difference in the outcome of your case. As a Toronto spousal sponsorship lawyer, I am happy to consult and provide the best strategy to any couple who is planning to build their lives together in Canada.