Maxwell Musgrove, Lawyer, Chaudhary Law Office.
In Canadian immigration law, the definition of a common-law partner is:
…in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year.
This definition leaves several open questions, many of which have been addressed over time by the Federal Court (eg. What does “cohabiting” mean? What is “a conjugal relationship”? How and when does a common-law relationship come to an end?).
However, a question that the Court has yet to rule on is how the one-year period is calculated. Is it continuous, or cumulative?
This issue was before the Federal Court in 2010, but Justice Zinn, recognizing that good interpretations must start from good administrative decisions, sent it back for an officer to consider.
[13] …The issue that arises when there is a break in the relationship is whether, when the parties reconcile, the 12 month clock starts back at zero or whether it picks up and continues from the point when it stopped. In order to answer that question, one must examine the nature of the break and the intention of the parties.
[14] In this case it is not clear that such an examination was done by the Officer.
Immigration, Refugees and Citizenship Canada (IRCC) has its own answer – it’s continuous.
To be considered common-law partners, they must have cohabited for at least one year. This is the standard definition used across the federal government. It means continuous cohabitation for one year, not intermittent cohabitation adding up to one year. The continuous nature of the cohabitation is a universal understanding based on case law.
(See Assessing a common-law relationship, assessing the legality of a marriage, Who you can sponsor, and who you can sponsor.)
I found this curious. After a thorough review of Canadian immigration jurisprudence since 2002 (the year the current definition of common-law partner came into use), I found no case law to support this. IRCC was also unable, in response to an access to information request, to provide a citation.
History
Something like common-law relationships was first written into immigration law in 1997, through an amendment to the Immigration Regulations, 1978 (in force at the time), which added the following:
5. (1) Per the purposes of paragraph (2)(l) and subsections (3) to (5), “spouse” includes a person of the opposite sex who is cohabiting with the sponsor in a conjugal relationship at the time the sponsor gives an undertaking, having cohabited with the sponsor for a continuous period of at least one year.
(Canada Gazette Part II, Vol. 131, No. 7, 850).
This only affected the definition of “spouse” for co-signing purposes. It did not allow common-law partners to be sponsored. It seems that the sponsorship of common-law partners, regardless of sexual orientation, was for at least some time, facilitated through humanitarian and compassionate applications.
It was not until the passage of the Immigration and Refugee Protection Regulations (IRPR), in 2002, that the current definition of common-law came into use in immigration, with applicability to co-signers, sponsored family members, and accompanying family members.
Statutory Interpretation
The definition used in the IRPR is a standard definition used across the federal government, but not the standard. This definition entered wide use in the year 2000, with the Modernization of Benefits and Obligations Act (the Modernization Act) which amended 68 federal statutes to add the concept of common-law partnership, and extend various benefits, previously available to spouses, to common-law partners as well.
Canada’s immigration laws were not among those amended (though the Citizenship Act was). However the definitions used throughout the Modernization Act are familiar. It primarily used two different templates when defining common-law partners:
“common-law partner”, in relation to a[n] [contributor/individual], means a person who is cohabiting with the [contributor/individual] in a conjugal relationship at the relevant time, having so cohabited with the [contributor/individual] for a continuous period of at least one year.
(see for examples Canada Pension Plan, Old Age Security Act).
“common-law partner’”, in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year.
(see for examples Citizenship Act, Employment Insurance Act, Pension Act).
When Parliament uses different language, there is an inference that different meaning should apply. Therefore, the use of the word continuous in some definitions of a common-law partner, but not in others, ought to mean something. The word cannot be superfluous.
It may therefore be argued that, where the word continuous is not used in defining a common-law partner, cohabitation does not need to be continuous.
The Case Law
Four Federal Court Decisions have referenced IRCC’s interpretation (Chantladze v Canada, 2018 FC 771; Deheza v Canada, 2016 FC 1262; Xuan v Canada, 2013 FC 92; and Ally v Canada, 2008 FC 445), but none of these fully endorse it, and in none of these cases was the continuity of the relationship in issue.
In Chaudhary v Canada, 2012 FC 828 (Chaudhary), the Court ruled that “Temporary and short separations […] are permissible”. Chaudhary is often cited for the quote “While cohabitation means living together continuously…” However, this itself was simply Chaudhary quoting from an earlier case, which itself was quoting, without endorsing in this respect, an IRCC processing manual. I have found no decisions in which the Federal Court endorsed continuity as a requirement.
At the Immigration and Refugee Board (IRB), the majority of relevant decisions accept IRCC’s interpretation at face value, and sometimes based on a misreading of Federal Court jurisprudence. There has not be substantial examination of whether this interpretation is correct. However, there is one decision (Lobo v Canada, 2022 CanLII 134677) which suggests that cohabitation ought to have a degree of consistency, while still allowing for interruptions. Even in this case, the decision goes out of its way to find that in the alternative the parties were conjugal partners, suggesting the decision maker was not confident the finding of common-law status would withstand review.
I find that the Appellant and Applicant lived together almost continuously in a marriage-like conjugal relationship from February 2013 to June 2018.
[…]
I find that the Appellant and Applicant lived together continuously with minimal interruptions from February 2013 to June 2018
[…]
I find that the Appellant has established that the Applicant is a member of the family class as his common-law partner. Alternatively, the Applicant is a member of the family class as the Appellant’s conjugal partner.
Looking more broadly, the Pension Act uses the same approach to defining a common-law partner as the IRPR. Findings by tribunals adjudicating disputes under the Pension Act have similarly found that cohabitation must be continuous, or as the Veterans Review and Appeal Board phrases it, without interruption.
However, this approach is recent, only beginning to appear in published decisions in the last 10 years.
It appears that, before the Modernization Act and current standardized definitions, different definitions used for a common-law partner did include the word continuous. However it is not apparent at what point and with what justification this was read into the modern usage.
Notably, family law has moved in the opposite direction. Part of the Family Law Act of Ontario uses a definition of “spouse” which includes two persons who are not married to each other and have cohabited continuously for a period of not less than three years. Yet the Ontario Court of Appeal ruled in Climans v Latner, 2020 ONCA 554:
Lack of a shared residence is not determinative of the issue of cohabitation. As the trial judge’s review of the caselaw demonstrates, there are many cases in which courts have found cohabitation where the parties stayed together only intermittently.
Similarly, the Alberta Adult Interdependent Relationships Act defines an Adult interdependent partner as having lived with another person in a relationship of interdependence for a continuous period of not less than 3 years (with exceptions if there is a child of the relationship or a partnership agreement was entered into). Yet in Mitchell v Reykdal, 2021 ABQB 301, the Alberta Court of Queen’s Bench held:
Moreover, there is no requirement that “lived with” for the purposes of s 3(a)(i) of the AIRA means occupying the same space at the same time all the time
Conclusion
The origins of the requirement that cohabitation be continuous are questionable. Despite this, it appears that this interpretation has become established at the IRB already. However these decisions do not appear to grapple with whether the interpretation is correct. When the issue has reached the Federal Court, the lack of consideration of the issue can be grounds to send a case back to the administrative systems, without commenting on the correct interpretation.
There is good reason to question IRCC’s interpretation. A more thorough and thoughtful jurisprudence is called for.
