Can common law relationships exist before 18?

[goldfinger]

Just curious, because the application asks about prior common law relationships. You have to be over 18 to have been in a commonlaw relationship, correct?

my wife was in a relationship for over a year, but that was before she was 18. Also, I don’t think it was anything she would have considered marriage-like.

thoughts?

 

[thevisawhisperer]

An indirect response to your question - by way of 'who is ineligible to be sponsored under the spouse or common-law partner in Canada class

Excluded relationships

• 125 (1) A foreign national shall not be considered a member of the spouse or common-law partner in Canada class by virtue of their relationship to the sponsor if
  • (a) the foreign national is the sponsor’s spouse or common-law partner and is under 18 years of age;

 

[DollyM]

Just curious, because the application asks about prior common law relationships. You have to be over 18 to have been in a commonlaw relationship, correct?

my wife was in a relationship for over a year, but that was before she was 18. Also, I don’t think it was anything she would have considered marriage-like.

thoughts?

Being in a relationship is not the same as being common law. Did she live in a marriage like relationship for 12 months or more with her ex partner? If so then yes she was common law. If not, then no she simply had a boyfriend.

 

[goldfinger]

Being in a relationship is not the same as being common law. Did she live in a marriage like relationship for 12 months or more with her ex partner? If so then yes she was common law. If not, then no she simply had a boyfriend.

I seemed to think that it was a moot point regardless, considering that common law formally begins at 18 for the purposes of sponsorship, correct?

 

[goldfinger]

Any other insights on this one? I feel like there have been a tonne of cases where common law ambiguity exists.

 

[DollyM]

Any other insights on this one? I feel like there have been a tonne of cases where common law ambiguity exists.

Did she live with her partner for a year? It's not a difficult question really. If not, then she was not common law. If so, then if it were my application I would say yes to the question.

 

[k.h.p.]

If she lived with someone in a marriage-like relationship for more than 12 months, even though she was younger than 18, she should answer yes and enter the date when the relationship ended.

The relevant part of the regulations stating that someone must be 18 or older to be sponsored does not change the definition of a common-law relationship,

This particular question doesn't cause a lot of problems, and to be honest, I don't know why they ask it.

 

[goldfinger]

Did she live with her partner for a year? It's not a difficult question really. If not, then she was not common law. If so, then if it were my application I would say yes to the question.

Gotya. Thanks for the info!

If she lived with someone in a marriage-like relationship for more than 12 months, even though she was younger than 18, she should answer yes and enter the date when the relationship ended.

The relevant part of the regulations stating that someone must be 18 or older to be sponsored does not change the definition of a common-law relationship,

This particular question doesn't cause a lot of problems, and to be honest, I don't know why they ask it.

I guess that I was going off of the legal definition of common law in pretty well every jurisdiction that applies here. Canada doesn't recognize common law relationships earlier than 18 for *any* purpose, not just sponsorship. In fact, I felt that being over 18 was a defining element of a common law relationship. In the spirit of trying to be factual I figured that it made sense to try to adhere to some proper definition. It sounds the relationship should be included if they were living together for 1 year and were romantic, essentially.

EDIT - I guess I should add - What if my wife didn't consider it a marriage-like relationship? I would err on the side of caution myself, but it's not my relationship.

Also - do we need any type of documentation? There's no method of showing whether the relationship was marriage OR common law, and so I wouldn't want them to expect divorce papers or anything to that effect.

Thanks for the info!

 

[k.h.p.]

Gotya. Thanks for the info!



I guess that I was going off of the legal definition of common law in pretty well every jurisdiction that applies here. Canada doesn't recognize common law relationships earlier than 18 for *any* purpose, not just sponsorship. In fact, I felt that being over 18 was a defining element of a common law relationship. In the spirit of trying to be factual I figured that it made sense to try to adhere to some proper definition. It sounds the relationship should be included if they were living together for 1 year and were romantic, essentially.

EDIT - I guess I should add - What if my wife didn't consider it a marriage-like relationship? I would err on the side of caution myself, but it's not my relationship.

Also - do we need any type of documentation? There's no method of showing whether the relationship was marriage OR common law, and so I wouldn't want them to expect divorce papers or anything to that effect.

Thanks for the info!

There is no legal documentation of common-law in Canada, and there is no statute that says that common-law can only start at 18. In fact, in Canada, one can be married (legally) as early as sixteen. Essential to the understanding of "common-law" is that it is done without the benefit of authorization under a statute (law) - it's just a legal status that exists after a relationship has existed for more than 12 months. As the legal definition in Canada for marriage starts at 16, common-law can exist as early as that as well - but it's essential to note that there is no legal basis to define common-law. There immigration regulations that help a visa officer assess if a common-law relationship exists but they do not define common-law.

The difference between common-law marriage and statute-defined marriage is that marriages get certificates. If a marriage existed, and was legally registered, you'd have a certificate. If the marriage ended, you'd have a divorce certificate.

If a common-law relationship ends, you don't get a certificate. You just declare it ends and no longer cohabitate or live in a marriage-like relationship.

As to whether or not your wife "considered" it a marriage-like relationship, a party's consideration is likely not determinative. If the two people lived together, cared for each other, cooked each other meals, supported each other, did laundry for each other, etc., then it was a marriage-like relationship. Courts have upheld this - common-law applies even if you don't want it to apply.

You don't need to have any documentation as to whether or not a common-law relationship ended unless they doubt it did. Your marriage to your wife, along with her indicating the previous common-law relationship ended, is more or less determinative.

 

[goldfinger]

There is no legal documentation of common-law in Canada, and there is no statute that says that common-law can only start at 18. In fact, in Canada, one can be married (legally) as early as sixteen. Essential to the understanding of "common-law" is that it is done without the benefit of authorization under a statute (law) - it's just a legal status that exists after a relationship has existed for more than 12 months. As the legal definition in Canada for marriage starts at 16, common-law can exist as early as that as well - but it's essential to note that there is no legal basis to define common-law. There immigration regulations that help a visa officer assess if a common-law relationship exists but they do not define common-law.

The difference between common-law marriage and statute-defined marriage is that marriages get certificates. If a marriage existed, and was legally registered, you'd have a certificate. If the marriage ended, you'd have a divorce certificate.

If a common-law relationship ends, you don't get a certificate. You just declare it ends and no longer cohabitate or live in a marriage-like relationship.

As to whether or not your wife "considered" it a marriage-like relationship, a party's consideration is likely not determinative. If the two people lived together, cared for each other, cooked each other meals, supported each other, did laundry for each other, etc., then it was a marriage-like relationship. Courts have upheld this - common-law applies even if you don't want it to apply.

You don't need to have any documentation as to whether or not a common-law relationship ended unless they doubt it did. Your marriage to your wife, along with her indicating the previous common-law relationship ended, is more or less determinative.

Check. Thank you so much for the information! I was really confused.

Do you think that we should include any additional statements (we already have an addendum/additional sheet for the form in question, so we could just add it) stating "XYX relationship was not a marriage, and therefore has no separation document blah blah blah" or is it even worth bothering?

Again - I really appreciate it!

 

[k.h.p.]

Just for a pedantic side adventure: common-law means judge-made law.

So what's happened over many decades in Canada and other common-law jurisdictions is that in court cases where relationships have broken up and one person has sought support/assets/compensation from the other, or where estates are needing to be probated, or etc., is that judges have created a test in their rulings - "is the relationship marriage-like (did they care for each other, display a degree of attachment, etc.) and did they live together for more than 12 months." If the relationship meets that test, judges have held that the relationship is marriage-like for the essential operation of other statutes (spousal support, wills and estates, etc.). That is what common-law means. It's a test created by judges to see if a relationship should be held to be equivalent to that of marriage.

Many, many, many couples end up in a situation where they are common-law married despite being opposed to marriage or despite not really considering it a marriage. That's not their choice, and even if one of them doesn't consider it a marriage-like relationship, the test can literally include looking at whether or not they made each other lunch or did each other's laundry (at least this is some of the indicators in BC common-law rulings). If a couple doesn't want to be considered in a common-law relationship, they need to not live together. If they don't want the asset/debt distribution, etc., they need a cohabitation agreement (essentially a pre-nuptial agreement) but you cannot contract out of common-law status. It exists and you have no choice.

 

[k.h.p.]

Check. Thank you so much for the information! I was really confused.

Do you think that we should include any additional statements (we already have an addendum/additional sheet for the form in question, so we could just add it) stating "XYX relationship was not a marriage, and therefore has no separation document blah blah blah" or is it even worth bothering?

Again - I really appreciate it!

No, you can't say that: just because it wasn't a marriage doesn't mean it's not common-law. That's not how it works.

What form is this for? On the relationship evaluation and sponsor information form, the question is literally (a) has person X been in a previous common-law relationship and (b) when did it end?

They do not ask for documentation of the end of a common-law relationship because by legal common understanding there cannot be such documentation unless it was a court decision on distribution of assets or spousal support which doesn't happen in the majority of cases.

If the form you are looking at asks for documentation of the end of a common-law relationship, I will be surprised. The relationship evaluation does state that IRCC may ask for more information later, but again, that's only if there's a severe doubt (ie, your former common-law partner is still living with you and they determined that somehow, or they find you registered in some database as being common-law still, like CRA's taxation database)

 

[goldfinger]

Just for a pedantic side adventure: common-law means judge-made law.

So what's happened over many decades in Canada and other common-law jurisdictions is that in court cases where relationships have broken up and one person has sought support/assets/compensation from the other, or where estates are needing to be probated, or etc., is that judges have created a test in their rulings - "is the relationship marriage-like (did they care for each other, display a degree of attachment, etc.) and did they live together for more than 12 months." If the relationship meets that test, judges have held that the relationship is marriage-like for the essential operation of other statutes (spousal support, wills and estates, etc.). That is what common-law means. It's a test created by judges to see if a relationship should be held to be equivalent to that of marriage.

Many, many, many couples end up in a situation where they are common-law married despite being opposed to marriage or despite not really considering it a marriage. That's not their choice, and even if one of them doesn't consider it a marriage-like relationship, the test can literally include looking at whether or not they made each other lunch or did each other's laundry (at least this is some of the indicators in BC common-law rulings). If a couple doesn't want to be considered in a common-law relationship, they need to not live together. If they don't want the asset/debt distribution, etc., they need a cohabitation agreement (essentially a pre-nuptial agreement) but you cannot contract out of common-law status. It exists and you have no choice.

That makes sense, and I'm somewhat familiar with all of that (I've heard of co-habs before). In our jurisdiction, common-law partnership is very much an opt-in process, and requires that you be 18, but for the purposes of this form, I'd go with Canada's definition as far as declarations go.

No, you can't say that: just because it wasn't a marriage doesn't mean it's not common-law. That's not how it works.

What form is this for? On the relationship evaluation and sponsor information form, the question is literally (a) has person X been in a previous common-law relationship and (b) when did it end?

They do not ask for documentation of the end of a common-law relationship because by legal common understanding there cannot be such documentation unless it was a court decision on distribution of assets or spousal support which doesn't happen in the majority of cases.

If the form you are looking at asks for documentation of the end of a common-law relationship, I will be surprised. The relationship evaluation does state that IRCC may ask for more information later, but again, that's only if there's a severe doubt (ie, your former common-law partner is still living with you and they determined that somehow, or they find you registered in some database as being common-law still, like CRA's taxation database)

It's for the relationship evaluation and sponsor information form. They don't ask for any documentation. I just thought of mentioning that fact so that they didn't get confused thinking it was a marriage, but I guess that would be covered by other parts of the application.

One thing though - it asks for the person's birthday. My wife has no clue what his birth year was, and she's a little hazy on his birthday. How do we even handle this? (It was a million years ago).

As far as it flagging for IRCC, I can't imagine it would. I don't have any past common-law relationships, and my wife and I have a fairly long-standing relationship with a lot of traditional, legitimate proof (we've cohabited for a long time and have tonnes of documentation.)

 

[k.h.p.]

That makes sense, and I'm somewhat familiar with all of that (I've heard of co-habs before). In our jurisdiction, common-law partnership is very much an opt-in process, and requires that you be 18, but for the purposes of this form, I'd go with Canada's definition as far as declarations go.

You absolutely have to use Canada's definition. Some countries don't even have common-law status and Canada's definition is what you use when you apply to immigrate to Canada.

If your jurisdiction said common-law only exists after, say, 32 years of living together whilst singing a specific song and doing a specific dance on the anniversary of cohabitation, and you forgot the words on the 27th anniversary, Canada's definition would still apply.

It's for the relationship evaluation and sponsor information form. They don't ask for any documentation. I just thought of mentioning that fact so that they didn't get confused thinking it was a marriage, but I guess that would be covered by other parts of the application.

They won't get confused thinking it's a marriage because the part you're talking about literally asks about common-law relationships, right?

One thing though - it asks for the person's birthday. My wife has no clue what his birth year was, and she's a little hazy on his birthday. How do we even handle this? (It was a million years ago).

As far as it flagging for IRCC, I can't imagine it would. I don't have any past common-law relationships, and my wife and I have a fairly long-standing relationship with a lot of traditional, legitimate proof (we've cohabited for a long time and have tonnes of documentation.)

For the final question - you put in what you know, and you attach a letter of explanation saying you don't remember the precise date of birth.

 

[goldfinger]

You absolutely have to use Canada's definition. Some countries don't even have common-law status and Canada's definition is what you use when you apply to immigrate to Canada.

If your jurisdiction said common-law only exists after, say, 32 years of living together whilst singing a specific song and doing a specific dance on the anniversary of cohabitation, and you forgot the words on the 27th anniversary, Canada's definition would still apply.


They won't get confused thinking it's a marriage because the part you're talking about literally asks about common-law relationships, right?

Unfortunately, it says "Have you ever been married or in a common-law relationship with another person?" It lumps both prior relationships into the same section.

For the final question - you put in what you know, and you attach a letter of explanation saying you don't remember the precise date of birth.

That's what I'd figured, but wanted to make sure. Thanks!