Common-law application: living together for 1 year "CONTINUOUSLY"

[ggcc500]

Hello there,

My partner and I are planning to apply for common-law sponsorship (I am a Canadian citizen and she is from Hong Kong). We have everything ready in place and we are planning to sign the statutory declaration of common-law union form with our lawyer next week, but then our consultant told us there might be some complication in our case.

Back in June 2015, we both have started to live together. We have signed a rental lease agreement with both of our names. During the time, my partner has applied for student visa within Canada as she wants to expand her study here. But in mid of Sept, she got rejected and she flew back to Hong Kong in the beginning of October so she can reapply for the student visa. We were separated for a month, and in November exactly one month after her flight, I flew back to Hong Kong to join her, as vacation. We flew back to Canada in mid of December together. So basically, she was away from Canada for approximately 2 months, 1 month for myself and we were separated for a month.

In CIC's website, it says "You may apply to sponsor a common-law partner, of the opposite sex or the same sex. If so, you have to prove you have been living with your partner for at least 12 consecutive months in a relationship like a marriage. That means living together for one year without any long periods where you did not see each other. Either partner may have left the home for work or business travel, family obligations, and so on. However, that separation must have been temporary and short."

This is where the complication comes in, as we have separated for one month, does it count as a temporary separation?? We also do not have much proof that we were living together in Hong Kong during the vacation, as we live in family's place, so here's another month, 2 month in total depending on how you count it.

Our consultant initially asked us to wait till mid of August 2016 to sign the declaration for common-law union and send our the application package, as it will cover the 2-month period. But now he said the immigration officer might have a chance to challenge us that we didn't leave together for one year "CONTINUOUSLY". The things is, we did leave together for more than a year, we have every proof from rental agreement, student visa application rejection letters, student visa application approval that got in Hong Kong in December, etc.

Should we go ahead to submit the application anyway next week? Risking that they might challenge us that we didn't live 12 months "CONTINUOUSLY"? (but we have so much proof that our relationship is real, and we have lived together for more than 1 year already) Or should we wait until mid of December to apply? (We really want to apply asap...) :'(

Please help! :'( We called immigration, and have consulted many professionals, but still, nobody can define whether our separation is temporary and if it's okay to do it now.
Your comments and helps are much appreciated! ???

 

[screech339]

You are not officially common law until you continuously lived under the same roof for 12 months in a row. No breaks in between. Once you break the 12 continuous months, you have to restart the 12 continuous months again from time you last got back together to qualify for common law status. It doesn't work if for last 14 months were you were apart for 2 months in the middle of your 14 month period.

Based on your post, you are not legally common law until the day after the 1 year anniversary since you got back together. Rental agreements doesn't prove you were physically together for 12 months as your gf's passport will show that she was physically living apart from you for 2 months.

Do not submit your common law PR application until at least December 2016 this year. CIC will see in your application that your gf was in HK for 2 months. The application asked for residency history in which they will see your gf was in HK. This would void your application as there was physical break and thus not legally common law. Remember CIC examines CL relationships under a closer microscope than those who are married. The onus is on you to prove CL status. The GF passport will prove you were not.

 

[canadianwoman]

I agree with the above poster. Wait until mid-December to apply. The reason consultants and others cannot give you a straight answer as to whether the one month break is too long is because there is no hard-and-fast rule about this. Some visa officers would think the one month apart is too long, breaks the cohabitation requirement, and would therefore refuse the visa. Some might think it was OK.
It is also true that you only had one month of a break, but if it is going to be difficult to prove you were together for the second month out of Canada, I would say most visa officers would decide the break was two months. And two months is definitely too long.
Keep in mind that right now it seems like waiting until mid-December is a long time. But if you apply now, there is a good chance that the application will be denied. There is also a good chance that the application will take longer than normal to be processed, while the visa officer tries to decide about the break. In the long run, she might get the PR visa more quickly by waiting until December to apply, compared to applying now.

 

[Lady_Ashka]

On a similar note, I am wondering if it is helpful to write a sheet stating the dates, number of days and purpose of the trips the couple took separately? So that the visa officer can see upfront what dates to look out for? Or maybe it's best not to write anything and give the officer the freedom to decide what to pay attention to?