Or: “My Canadian sponsor is still legally married, but we live together — can he sponsor me?”
An interesting question about immigration — and not only immigration! Let’s explore it in detail.
Living in a Common-Law Relationship Before Finalizing a Divorce
Is a common-law relationship legally recognized if one of the partners is still officially married to someone else?
According to the Criminal Code, polygamy — being married to more than one person at the same time — is prohibited in Canada and punishable by up to five years in prison.
According to family law, a marriage is not considered legally dissolved until a divorce is finalized.
However, in practice, it often happens that one or both spouses may start living in a common-law relationship with a new partner before their divorce is official.
There are two main ways for a common-law relationship to be officially recognized under Canadian family law:
- When two people have lived together in a conjugal relationship for a certain period (usually at least one year — though provincial requirements may vary);
- Or, when two people have lived together in a relationship of some duration and share a child together.
In some provinces, like Ontario, a person can be considered in a common-law relationship even before their divorce is finalized, as long as they are living separately from their legal spouse.
The most important factor: the individual must clearly demonstrate their intention not to continue the prior relationship.
In such cases, it may appear that the person has "two spouses," although legally, this is not the case.
From the immigration perspective — yes, it is possible to sponsor a new partner while still being legally married to another person. But it must be done very carefully, with proper documentation and proof.
Important legal detail: Under provincial family law, you are always financially responsible for your children, whether or not you live with them.
If you enter a common-law relationship while still legally married, you may also remain financially responsible for your former spouse and any children from that relationship.
Courts rarely reduce support obligations to a first family just because the individual has taken on new obligations in a second relationship.
In essence, you may become financially (and morally) responsible for two families at the same time.
One more important note: If your common-law partner has children from a previous relationship and they have lived with you for at least one year, you may be considered a parent for the purpose of child support.
Anyone who has acted as a parent to a child may be required to pay child support, even if they are not the biological parent and did not adopt the child.
In other words, you may be required to pay child support for children who are not biologically yours and whom you did not adopt, simply based on your long-term cohabitation with the child and your role in their upbringing.
Oleksandra Melnykova, Immigration and Refugee Consultant in Canada.
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