Spousal sponsorship

[Andrew CHUNG]

Hi,

I would like to ask for your help.
I am a Hong Kong citizen and was studied in Canada for over 6 years.
My wife (who is a canadian citizen) moved to Hong Kong and declared that she is Non-resident. Now, our family including my daugther (has granted citizenship already) are decided to move back to Canada. We would like to move back to Canada in September and apply for the PR inland. We have couple questions:

(i) We want to apply for the PR in Canada, will it be ok? or do I need to apply in Hong Kong instead?
(ii) As being a Sponsor, my wife need to change resident. However, we heard that it will take 6 months for my wife to change her residency status and she will not be able to sponsor me until she has granted the residency. Is that true? What we can do?
(iii) As my wife has worked in Hong Kong for her last couple years and does not have a job in Canada, do my wife as a sponsor need to have income prove?

 

[steaky]

Hi,

I would like to ask for your help.
I am a Hong Kong citizen and was studied in Canada for over 6 years.
My wife (who is a canadian citizen) moved to Hong Kong and declared that she is Non-resident. Now, our family including my daugther (has granted citizenship already) are decided to move back to Canada. We would like to move back to Canada in September and apply for the PR inland. We have couple questions:

(i) We want to apply for the PR in Canada, will it be ok? or do I need to apply in Hong Kong instead?
(ii) As being a Sponsor, my wife need to change resident. However, we heard that it will take 6 months for my wife to change her residency status and she will not be able to sponsor me until she has granted the residency. Is that true? What we can do?
(iii) As my wife has worked in Hong Kong for her last couple years and does not have a job in Canada, do my wife as a sponsor need to have income prove?

i) Yes your wife can sponsor you for PR in Canada. If unsuccessful, you cannot appeal. You might also need to have interview conducted in Hong Kong.
ii) I believe your wife is now a non resident for tax purposes. She will change to tax resident once she resides Canada permenantly. She can sponsor you immediately in Canada or outside Canada (i.e. in Hong Kong)
iii) there are no spousal income requirement for spousal sponsorship

 

[Andrew CHUNG]

Thanks Steaky,
It is very helpful
Couple more questions: How can my wife change her residency status? Is that she only needs to file Form NR74E? can she changes her resident status in Hong Kong? How long will it take to change the resident status?

 

[IrishApplicant]

this thread should be locked, otherwise every single new person will post their qs here, instead of the main room.

IA

 

[BeShoo]

Re: Spousal sponsorship - Characteristics of a conjugal relationship

A genuine common law partnership or conjugal partnership must be conjugal (marriage-like) in nature, and obviously a genuine marriage should also be "marriage-like." The word "conjugal' is not defined in the immigration law and regulations, but it has been defined in certain court cases (some of them not related to immigration, but to other laws that require a "conjugal" relationship).

The Court listed seven characteristics of a conjugal relationship. These are:

SHELTER:
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?

SEXUAL AND PERSONAL BEHAVIOUR:
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?

SERVICES:
What was the conduct and habit of the parties in relation to:
(a) preparation of meals,
(b) Washing and mending clothes,
(c) Shopping,
(d) Household maintenance,
(e) Any other domestic services?

SOCIAL:
(a) Did they participate together or separately in neighbourhood and community activities? (Whether the partners share time together or participate in leisure activity together)

[Whether they have relationships or interaction with each other's respective family (What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?)]

SOCIETAL:
What was the attitude and conduct of the community towards each of them and as a couple?

SUPPORT: (ECONOMIC):
(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

CHILDREN:
What was the attitude and conduct of the parties concerning children?

In listing these criteria, the Court confirms that they are not exhaustive, and that the weight accorded to each may vary depending on the circumstances in each case. The Court emphasizes that the approach employed in determining whether a claimed relationship is conjugal ought to be flexible.

Former Appeal Division member Anita Boscariol in the decision of McCullough and the Minister of Citizenship and Immigration added the following characteristics, [...] which Member Boscariol suggested to be implicit in the term "conjugal relationship":

• the partners have the capacity to, and consent freely to the relationship;

• a marriage between the claimed conjugal partners would not fall within the prohibited degrees of consanguinity under the Marriage (Prohibited Degrees) Act,18 and thus would not be incestuous;

• the conjugal relationship is exclusive and monogamous; and

• the relationship is more than a precursor, or plan, to share a conjugal relationship in future.

 

[BeShoo]

Re: Spousal sponsorship - Cohabitation in a conjugal relationship

The Canada Pension Plan requires "cohabitation in a conjugal relationship" for certain benefits to be transferred on the death of a partner. Most of these criteria (as listed in Betts v. Shannon (2001) CCH CEB & PGR No. 8661, pp. 6775-6782) are useful indicators for a genuine case of "cohabitation" for immigration purposes also. Note also that:

“Cohabitation” in this context is not synonymous with co-residence. Two people can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense even if they are living under the same roof. (Hodge v. MHRD, 2—4 SCC 65)

You might have to go to an appeal if you wanted to prove that you were cohabiting without living together, but it has been done before in an immigration context. (See Fantin v. Canada (Citizenship and Immigration), 2005 CanLII 56919 (I.R.B.).

Here is the list from Betts v. Shannon (everything is here, for completeness, despite the fact the the parts about deceased partners obviously don't apply to the immigration context):

Cohabitation in a conjugal relationship will usually involve many of the following elements or questions, although not necessarily all of them:

1. Financial interdependence – e.g., shared bank accounts, credit cards with the same number, the acquisition and ownership of property.

2. A sexual relationship. Did the parties have sexual relations? If not, why not?

3. A common residence. Did the parties live under the same roof? Did they eat their meals together? What were their sleeping arrangements?

4. Expenses for each other on special occasions. Did the parties buy gifts for each other on special occasions?

5. A sharing of responsibilities in the running of the household. Who prepared the meals? Who washed the clothes? Who did the shopping? Who looked after the maintenance of the home?

6. A shared use of assets such as cars, boats, etc.

7. A shared responsibility in the raising of children.

8. Shared vacations.

9. The expectation each day that there will be continued mutual dependency.

10. Each party named a beneficiary in the will of the other.

11. Each party named a beneficiary in the insurance policy of the other.

12. Where each of them kept their clothing.

13. In cases of illness, who cared for the one who was ill? Which one visited the ill one if in hospital?

14. Who had knowledge of the medical needs of the other?

15. Communication between the parties.

16. Public recognition of the parties.

17. The attitude and conduct of the community and the parties' families towards the parties, and, in the particular circumstances, the common-law relationship between the deceased and the respondent

18. What marital status was declared by the parties on various applications, on other forms, completed by them?

19. Who took care of the deceased's funeral arrangement? Was there a funeral notice, and, if so, how were the parties described therein? Who was billed for the funeral costs? Who paid for the funeral? Who attended the funeral? Where did they sit?

One more useful quotation from Cahoon v. Allred (September 9, 1997) CP 5556 (PAB):

Parties to a relationship who maintained their separate residences were not cohabiting, regardless of the number of times or nights they spent together. Where they did not share the use of the furnishings, had no common bank account and neither took responsibility for the other's basic living expenses, there was no common enterprise one expects when two people are cohabiting in a conjugal relationship.

Keep that in mind if you are claiming a conjugal relationship. Obviously, you will have separate residences in a "conjugal partnership" immigration context, but there is some importance attached to bank accounts and basic living expenses in most conjugal relationships (whether a "common law partnership" or "conjugal partnership" or even a marriage).

One last quotation:

The weight to be accorded the various elements or factors to be considered in determining whether a couple is in a conjugal relationship will vary widely and will be almost infinitive. Brandon v. MHRD (November 30, 2001), CP 14937 (PAB)

 

[BeShoo]

Re: Spousal sponsorship - Characteristics of a conjugal relationship 2

Here is another list of characteristics of a conjugal relationship, this one immigration-specific:

On the basis of this analysis the panel concludes that, for the purposes of immigration, a conjugal relationship must evidence, to a greater or less degree depending upon circumstance, some or all of the following characteristics.

• There must be credible evidence of the development of a relationship in the time period prior to the beginning of the conjugal relationship (that is the way the couple came to be introduced and the circumstances of their meeting).

• The relationship must be exclusive, that is monogamous and in most cases sexual (although not necessarily sexual as this would potentially infringe upon cultural norms and the freedom of moral or religious choice).

• The relationship must demonstrate some degree of emotional, physical and social interdependence.

• The relationship must be loving and intimate.

• The relationship must show evidence of the intention to co-exist as a single family unit upon reunification in Canada. To this extent evidence of financial support, the co-mingling of affairs, the sharing of assets and establishment in Canada, would be significant indicators but not necessarily determinative because the circumstances of each case might affect the degree to which interdependence is either possible or practical.

• The presence of children and the conduct of the non-custodial party towards them.

• The relationship must show evidence of real and meaningful communication.

• The parties to the relationship must meaningful evidence of physical contact through visits, (although again the possibility and practicality of repeat visits across the span of the globe as opposed to simple cross boarder weekend trips would be a consideration).

• The parties must demonstrate that their relationship is known of broadly within their immediate and/or extended families and their circle of acquaintances, both at home and abroad.

• The relationship must be of at least one year's duration.

• The relationship must have existed at the time of the application and at the time of the determination of the application.

Of course other factors not identified might bear on the determination of a conjugal relationship and as such this list must be considered as non-exhaustive.

Stephen v. Canada (Citizenship and Immigration), 2007 CanLII 73320 (I.R.B.)

 

[BeShoo]

Re: Spousal sponsorship - Factors in the genuineness of a marriage

This is the last one (I think). This is from another appeal case (reformatted a bit for easier online reading), but it may be useful in selecting evidence to show that your marriage is genuine:

In assessing the genuineness of a marriage, the Immigration Appeal Division usually considers a broad range of factors including, but not limited to,

how the couple met and how the relationship evolved,
the duration of the relationship and the amount of time spent together prior to the wedding,
the nature of the engagement and/or wedding ceremony,
the intent of the parties to the marriage,
the evidence of ongoing contact and communication before and after the marriage,
the spouses' conduct after the wedding,
the level of knowledge of each other's relationship histories,
the provision of financial support,
the partners' families' knowledge of and involvement in the relationship,
the knowledge of and contact with extended families of the parties,
the level of knowledge about each other's daily lives,
and plans and arrangements for the future.

The factors are not exhaustive and the weight assigned to them will vary according to the circumstances of each case.
Khchao v. Canada (Citizenship and Immigration), 2006 CanLII 52350 (I.R.B.)

 

[steaky]

Thanks Steaky,
It is very helpful
Couple more questions: How can my wife change her residency status? Is that she only needs to file Form NR74E? can she changes her resident status in Hong Kong? How long will it take to change the resident status?

If you want a definite answer, you can try calling a CRA agent. The telephone number is 1-613-952-3741. You may call collect. You can always ask your telephone company how to make a collect call.

 

[britincanada]

i) Yes your wife can sponsor you for PR in Canada. If unsuccessful, you cannot appeal. You might also need to have interview conducted in Hong Kong.
ii) I believe your wife is now a non resident for tax purposes. She will change to tax resident once she resides Canada permenantly. She can sponsor you immediately in Canada or outside Canada (i.e. in Hong Kong)
iii) there are no spousal income requirement for spousal sponsorship

Please be aware that although there is no income requirement your wife will need to demonstrate how she can support you for the next 3 years in the "undertaking"!

 

[Andrew CHUNG]

thanks for your help!!

 

[jasmant007]

Hi Guys

I need some advice and it looks like I've come to the right place! I am a UK citizen in a Common Law relationship with my Canadian partner and we live in the UK. We have applied for PR and are currently waiting on London. We applied start of April. We want to move back to Canada this September and I was wondering whether I can enter on a standard Tourist Class visa an wait for the completion of my visa in Canada? I appreciate that I may have to later attend an interview in London. Is this possible or will I be turned away by Canada or will they let me in for the standard 6 month Tourist visa?!?

Thanks

J

 

[Leon]

You are allowed to visit Canada while you wait for your sponsorship to come through. It would be better to have a return ticket though in case they ask.

 

[cute123]

so pretty much if i sponsored my spouse and go visit him in his native country i cant stay longer than a month? its been almost a year and we havent heard anything from them to see if he is approved or not as a pr...i had to travel to stay with him waiting because our daughter was getting sick from his absence so pretty much can that deny our process?
even if i had stayed in canada how come it has taken so long for them to give us an answer?
if they were to refuse it wouldnt they have told us already?

 

[careolso]

I am sponsoring my American husband. We moved to Canada at the end of last month and he was granted a 12 month visitor visa at the land crossing (Pembina).