Last weekend a couple crossing the Canadian/American border together were told they didn’t count as “common law.” The American woman who had been living and travelling with a Canadian man in their RV for over a year was not allowed into Canada. She found herself stranded at the border with no vehicle and no idea when she will be allowed to join her partner in Canada. Their ordeal is described in the CBC article https://www.cbc.ca/news/canada/canada-u-s-border-couples-government-1.5628647. This couple’s upsetting experience highlights the confusion about the meaning of being a “common law” couple in Canada.
Couples who have started living together should consider getting a quick legal opinion about the legal status of their relationship from a lawyer who provides limited scope legal services. Couples don’t need to wait and find out the hard way when they are stuck at the border or their relationship is in trouble. With limited scope services, you can get a legal opinion which clarifies your rights and responsibilities during your relationship. There is no need for an expensive retainer deposit or an ongoing relationship with a lawyer. The whole idea of a limited scope service is to pay a little bit now to understand your legal rights and responsibilities. Then, you can make better choices and avoid the problems that would cost a lot more to fix later.
If the couple crossing the border in their RV had received legal advice, they would have known that what counts as “common law” is actually different for different legal purposes and in different locations, even within Canada. For federal income tax purposes, an intimate partner is considered to be a spouse after just 1 year of cohabitation, as set out in the Income Tax Act. For spousal support purposes in Ontario, the Family Law Act requires 3 years of cohabitation or being the parents of a child who have “cohabited in a relationship of some permanence.” Claiming a share of a common law spouse’s property is even more complicated. In Ontario, you need to have cohabited in a “joint family venture” as defined by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 http://canlii.ca/t/2fs3h .
Immigration Canada uses the “cohabit for 1 year” definition. So, you would think that the couple trying to cross the border in their RV should have qualified. But, as family lawyers know, sometimes what actually counts as “cohabiting” can get tricky. The border agent had been told that the couple needed to have the same permanent address to be considered “cohabiting”. Family lawyers know that having the same permanent address is one factor to consider in determining spousal status but it is definitely not the only one. The list includes “shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple” as confirmed by the Supreme Court of Canada in M. v. H. [1999] 2 SCR 3 http://canlii.ca/t/1fqm4 . These factors have been considered by courts in many cases both before and after M. v. H., including the recent Ontario Superior Court case Jackson v. Moore (2019) ONSC 6477 http://canlii.ca/t/j49w6 .
I don’t mean to suggest that border agents should get into a Supreme Court worthy analysis each time a couple crosses the border. But, I do think that Immigration Canada should educate their staff better so that people don’t have to go through frustrating experiences like the couple travelling across the border in their RV. And, people should know that lawyers can help in these situations. We can give advice about legal rights and responsibilities. We can anticipate problems and come up with creative solutions. For example, it is common for parents who travel across international borders, including the US border, to take a Consent to Travel form with them when they travel with their children without the other parent. Maybe we need to think about developing a similar form for cross-border couples that confirms their spousal status to make border crossings easier. No matter what, it is a good idea for couples who are cohabiting to get some legal advice. As this RV couple unfortunately found out, living together is not as straight forward as it might seem.