Common law and divorce of former spouse

[Panamai]

Ok, here is my situation. My boyfriend has been formally separated from his children's mother for 3 years. He just now submitted the divorce application today. From what I've read online, the process could take anywhere from 4-6 months before the divorce is final (he's in Ontario). I was planning on going to Canada in January. Our goal at this point is to apply via common law marriage after one year. Will I be able to count the time toward that year before the divorce is final? I mean, say for example the divorce isn't final until March or April, do we have to wait until then to start counting the year? I hope not. That would really mess up our plans. I'm not sure I'll be able to get an extension on my visitor's status for that long. :/ Thanks!

 

[jomz]

I'm not an expert and I could be wrong. However I believe his divorce must be finalized before you can start to count your co-habitation as common-law. If timing is the issue, instead of common-law once his divorce is finalized get married therefore elimating the need to wait 1 year before applying.

 

[Rob_TO]

Ok, here is my situation. My boyfriend has been formally separated from his children's mother for 3 years. He just now submitted the divorce application today. From what I've read online, the process could take anywhere from 4-6 months before the divorce is final (he's in Ontario). I was planning on going to Canada in January. Our goal at this point is to apply via common law marriage after one year. Will I be able to count the time toward that year before the divorce is final? I mean, say for example the divorce isn't final until March or April, do we have to wait until then to start counting the year? I hope not. That would really mess up our plans. I'm not sure I'll be able to get an extension on my visitor's status for that long. :/ Thanks!

You can start counting from the day you first move in together. You don't actually need to be divorced from your first spouse to qualify as common-law, he just needs to be physically separated. Even if the divorce isn't finalized at the time you reach 12 months of cohabitation, you could still apply as a common-law couple.

http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf
5.38. What happens if the common-law partner is married to another person?
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 the spouse for long enough to establish a common-law relationship – at least one year. In this case they must have cohabited in a conjugal relationship with the common-law partner for at least one year. Cohabitation with a common-law partner cannot be considered to have started until a physical separation from the spouse has occurred. A common-law relationship cannot be legally established if one or both parties continue their marital relationships.

 

[DuberBlue]

From what I've read, for Canadian immigration purposes you are considered Common-law once you've lived continuously with your partner for 12 months...it doesn't appear to specifically say anything about his marital status.

By the way, as you might have read elsewhere on this forum, be VERY cautious about coming to Canada and stating that you wish to stay with your boyfriend with the intention of becoming common law after one year for immigration purposes. Be sure to state you are here to VISIT, and that you will not stay longer than 6 months. Having a return ticket will help toward this goal. The border officer may very likely otherwise assume you do not intend to leave and deny your entrance. If you get a stamped passport or TRV or Visitor Record when you enter you can then worry about applying for an extension closer to the expiry date.

 

[Panamai]

Oh, thank you, Rob_TO! That's exactly what I was looking for! *sigh of relief* Yeah, I'd love to get married within the year, but I don't want to pressure him or anything. I know he wants to marry me, but he also doesn't want to rush into it too quickly. And, thanks, DuberBlue. I've been reading in this forum for a few weeks, so I already know to always use the word "visiting" lol. I want to bring my car, so we'll be crossing at a land crossing, so I won't have a return ticket. I do have an apartment lease that goes on until the end of April. Do you think that will help my case? I'm pretty nervous about the border crossing thing. I've applied for a Nexus card. I'm hoping to have it by January. I hear that makes the crossing a little easier.

 

[Rob_TO]

Oh, thank you, Rob_TO! That's exactly what I was looking for! *sigh of relief* Yeah, I'd love to get married within the year, but I don't want to pressure him or anything. I know he wants to marry me, but he also doesn't want to rush into it too quickly. And, thanks, DuberBlue. I've been reading in this forum for a few weeks, so I already know to always use the word "visiting" lol. I want to bring my car, so we'll be crossing at a land crossing, so I won't have a return ticket. I do have an apartment lease that goes on until the end of April. Do you think that will help my case? I'm pretty nervous about the border crossing thing. I've applied for a Nexus card. I'm hoping to have it by January. I hear that makes the crossing a little easier.

By any chance have you already been living together in the USA up to now, or are you a long-distance couple now?

If you've been living together in the US, then that time would also count towards your common-law status as long as it has been continuous.

 

[DuberBlue]

A Nexus card probably doesn't hurt, but I don't have one so I wouldn't know specifically what about it will let you cross easier, or whether it will mean less questions. Since you're crossing by car, the best advice I can give you is, don't have a carload of stuff. Two, maybe three pieces of luggage at the most...as I wrote elsewhere here when my wife first crossed to visit (as the start of our trial living period) we brought back a pretty hefty carload of her stuff and we got hassled at the border for it. We DID get through and she got a Visitor Record, but it wasn't terribly fun.

Other than that, don't be nervous, and just assert that you are there to visit and that you will be returning by the time you say you will be.

 

[Panamai]

We are still an ldr couple. Yeah, I'll probably only have 2-3 suitcases of stuff. I do have a lamp that I inherited from my mum that I'd like to bring though. If they ask, maybe I can say it's a gift for his mum? What is a good time frame to give them for my visit? Obviously, I want to stay forever, but I know if I say 6 months it will look suspicious. At the same time, 3 suitcases may be a bit much for a couple of weeks. Also, do they automatically give you a visitor's record or do you have to ask for it? Another thing, have any of you crossed at Niagara Falls? What is this I hear about a toll?

 

[DuberBlue]

I don't know what the "right" thing to say will be since I obviously got hassled in the past too...but you ARE allowed to stay for 6 months as long as the border guard believes you will return when it is over. You don't necessarily have to say you're only visiting a couple of weeks and personally I wouldn't, simply because it's an outright lie....is it a lie they can ever really find out about? Maybe not, but I'm never comfortable taking those chances.

I cross at Rainbow Bridge (Niagara Falls) all the time and frankly they're pretty pleasant there....waits aren't normally terrible either as long as you're not travelling on a holiday weekend. There is a toll coming back from U.S.-to-Canada, which, if I remember correctly, is like $3.25, or maybe $3.75.

 

[charliem]

You better not say you have a boyfriend in Canada when you apply for a TRV. That's a sure way to be denied (unless you're from a visa-exempt country)

 

[Panamai]

Well, my boyfriend will actually be with me when I cross the border. Would be kind of hard to keep that from them. I told the border control officer at the airport I was there "visiting my boyfriend" last time I flew in and they didn't give me any problems. I'd like to keep the lying to a bare minimum if possible. I'm horrible at it.