Instead of jumping directly into the answer by saying yes / no, let’s check some definitions and guidance directly from IRCC’s website (*). I would like to provide extra information so that it helps you to understand the situation better when the case is not so straightforward.  

Who is a Common-law partner?

In the Canada immigration context, a common-law partnership means that a couple have lived together for at least one year in a conjugal relationship (**). A common-law relationship exists from the day on which two individuals can provide evidence to support their cohabitation (please check next paragraph) in a conjugal relationship. The onus is on the applicant to prove that they have been living in common law for at least one year before an application is received at IRCC.

A common-law relationship is legally a de facto relationship, meaning that it must be established in each individual case, based on the facts. This contrasts with a marriage, which is legally a de jure relationship, meaning that it has been established in law.

What is cohabitation?

Cohabitation means living together. Two people who are cohabiting have combined their affairs and set up their household together in one dwelling. 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 cohabitation is a universal understanding based on case law.

While cohabitation means living together continuously, from time to time, one or the other partner may have left the home for work or business travel, family obligations, and so on. The separation must be temporary and short. (Usually, the short refers to 90 days or less).

Persons who are married to third parties may be considered common-law partners provided their marriage has broken down and they have lived separate and apart from their spouse for at least one year, during which time they must have cohabited in a conjugal relationship with the common-law partner.

·        Cohabitation with a common-law partner can only be considered to have started once a physical separation from the spouse has occurred.

·        A common-law relationship cannot be legally established if one or both parties continue to maintain a conjugal relationship with a person to whom they remain legally married.

 

Summary and the answer:

Yes, you may sponsor your common-law partner if your divorce/separation is in progress with your previous spouse if:

·        Your marriage has broken down and you have lived separately and apart from your spouse (who you want divorce from) for at least one year.

·        You have cohabitation with your common-law partner for at least one year after the physical separation from your spouse (who you want divorce from).

·        You are not continuing /maintaining a conjugal relationship with your spouse (who you want divorce from).

To sum up, finalizing the divorce is NOT the main concern, the main concern is the separation and cohabitation for 01 year after the physical separation from the spouse (the sponsor wants the divorce from).

When the sponsor is legally married to someone else and wants to be sponsor of the current common law partner, the officer must be satisfied that the sponsor is separated from and no longer cohabits with the legal spouse. An officer may request additional evidence, such as:

·        a signed formal declaration that the marriage has ended, and that the person has entered a common-law relationship.

·        a separation agreement.

·        a court order in respect of custody of children (if applicable) substantiating the marriage breakdown, or

·        documents removing the legally married spouse(s) from insurance policies or wills as beneficiaries (a “change of beneficiary” form)

 

(*) Assessing a common-law relationship.

(**) Immigration and Refugee Protection Regulations: section 1(1)

 

Disclaimer: The above writing is not intended to be a source of legal advice. Please seek legal advice and use your own good judgement before choosing to act on any information provided above. If you choose to rely on this article, you do so entirely at your own risk.