common-law definition

[marie_ann]

Hi all,

I am new on this forum and was able to find a lot of information however I have a question related to my situation and I hope somebody can help me.

I lived with my boyfriend in Canada for over a year and we want to apply for the sponsorship under the common law category. I am applicant, he is the sponsor. I was in Canada under IEC and my work permit extension got rejected. I left Canada because apart from the rejection, there is another reason why I
decided to go back which is the fact that I need to get a few documents to finalize the paperwork on my side (we will be applying in December this year). We are still continuing our relationship, we talk every day on skype, he is coming to visit me for Christmas where I want to introduce him to my extended family, and I am going to visit him in March next year. I am going to stay in my country of nationality until the application process is finished and a decision is made (we will be applying outland). My country is visa exempt but a re-entry into Canada as a visitor is never guaranteed and we cannot afford buying tickets not knowing if I will be allowed to re-enter or not.

I have a question though, will that information satisfy a visa officer with regard to our relationship being genuine and continuing? Should the common law (in terms of me living with my partner physically) be continued? Will the reasons (rejection, not sure about re-entry) be explaining the fact that I am temporarily not there enough? We called a few times with the CIC hotline and they told us every time that if we are applying outland, I do not have to be in Canada, but I just want to make sure here.

I hope we have a strong file because before I came to live in Canada, we had a long distance relationship for over a year and we have lots of pictures, emails nd skype proof from that time, we have a joint bank account, I am a beneficiary on his insurance, we have tickets from trips and different visits, we paid bills together and my correspondence was alywas coming to his address.

Thank you very much in advance for your help!!

 

[computergeek]

I have a question though, will that information satisfy a visa officer with regard to our relationship being genuine and continuing? Should the common law (in terms of me living with my partner physically) be continued? Will the reasons (rejection, not sure about re-entry) be explaining the fact that I am temporarily not there enough? We called a few times with the CIC hotline and they told us every time that if we are applying outland, I do not have to be in Canada, but I just want to make sure here.

A common-law relationship merely requires that you have cohabitated for at least one year prior to the application. In your case, you satisfied that requirement, so the fact you are not presently living together because you lack status to remain in Canada is perfectly reasonable. Showing that the relationship is ongoing is important, and the things you have listed all work well to establish that this is the case. Based upon the processing manuals (you have reviewed OP 2 "Processing Members of the Family Class" I hope) your case does qualify. From OP 2:

5.36. How can someone in Canada sponsor a common-law partner from outside Canada when the definition says “is cohabiting”?

According to case law, the definition of common-law partner should be read as “an individual who is (ordinarily) cohabiting”. After the one year period of cohabitation has been established, the partners may live apart for periods of time without legally breaking the cohabitation. For example, a couple may have been separated due to armed conflict, illness of a family member, or for employment or education-related reasons, and therefore do not cohabit at present (see also 5.44 for information on persecution and penal control). Despite the break in cohabitation, a commonlaw relationship exists if the couple has cohabited continuously in a conjugal relationship in the past for at least one year and intend to do so again as soon as possible. There should be evidence demonstrating that both parties are continuing the relationship, such as visits, correspondence, and telephone calls.

This situation is similar to a marriage where the parties are temporarily separated or not cohabiting for a variety of reasons, but still considers themselves to be married and living in a conjugal relationship with their spouse with the intention of living together as soon as possible.

For common-law relationships (and marriage), the longer the period of separation without any cohabitation, the more difficult it is to establish that the common-law relationship (or marriage) still
exists.

This is why the situation you describe continues to qualify as a common-law relationship.

 

[rjessome]

A common-law relationship merely requires that you have cohabitated for at least one year prior to the application.

In a conjugal relationship. Sorry, don't mean to be picky but we don't want roommates thinking they can apply.

 

[computergeek]

In a conjugal relationship. Sorry, don't mean to be picky but we don't want roommates thinking they can apply.

Ah yes indeed.

So how about "a common-law relationship in addition to meeting the other statutory requirements would also include the requirement that you have co-habitated for at least one year prior to the application."

 

[marie_ann]

Thank you for your help. But what do you mean with "meeting the other statutory requirements"?

 

[computergeek]

Thank you for your help. But what do you mean with "meeting the other statutory requirements"?

Everything we are talking about is based upon the law (IRPA) and the regulations (IRPR) as interpreted by CIC and the Courts. So the definition of a common-law partner is derived from what these say. rjessome's point was that I did not cite to the "conjugal" aspect of the statutory requirement.

“common-law partner” means, in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year."

Source: IRPR (SOR/2002-227) current as of September 19, 2012.

My original statement was framed in the context of your situation as described. However, taken out of context someone might think I mean "living together" is sufficient - it is not.

 

[marie_ann]

OK thank you! I just want to make sure - in the context of my situation, the temporary break in the cohabitation due to lack of status should not cause any red flags, right? Like I mentioned, we still continue our relationship and will be able to prove it.

 

[computergeek]

OK thank you! I just want to make sure - in the context of my situation, the temporary break in the cohabitation due to lack of status should not cause any red flags, right? Like I mentioned, we still continue our relationship and will be able to prove it.

Nope. This is in fact discussed in the operational manual. The point is that the relationship is not ended, just your co-habitation has terminated at this point.

 

[marie_ann]

Thats good. Thank you!

 

[Ryathe]

Marie_ann - can I ask you about your visa extension that got refused? Did they sent you an email or a regular letter? And what was the message? I applied for the extension as well (and am waiting for the approval of the outland sponsored perm residency application sent almost 2 months ago) and now I'm worried that if they deny it I will have some info about it in my record and it will affect my SPR process. :'( Last question - did you have to notify anybody at the airport , when you were leaving Canada, that you are officially leaving / did anybody stamped your passport etc? - so that they don't think that you're still in Canada and the notice to leave doesn't change to deportation.

Sorry for all these questions but I tried to ask ppl about it and there was no answer but I've read a post from one guy who got a notice to leave Canada and left as he should. But when he tried to re-enter after some time he couldn't coz it turned out that his notice to leave changed into the deportation as he didn't notify anybody at the airport that he's leaving and nobody took checked his passport etc. :-X

So I'm a bit stressed about this possibility as well. :-\

 

[greenoil]

For spousal sponsorship, one has to establish:
- A mutual commitment to living together
- Couples are committed to each other's physical, emotional, financial and social interdependence such as shared shelter, sexual and personal behaviour (ex:living in the same roof during visits,...), services, social activities (visits, gifts, travel together...), economic support (money transfer), insurance beneficiary, children and the societal perception of the couple (the relationship is known to others)...
- Relationship develops and evolves naturally
- Marriage occurs in "good faith" (immigration is not the intention)

 

[computergeek]

Marie_ann - can I ask you about your visa extension that got refused? Did they sent you an email or a regular letter? And what was the message? I applied for the extension as well (and am waiting for the approval of the outland sponsored perm residency application sent almost 2 months ago) and now I'm worried that if they deny it I will have some info about it in my record and it will affect my SPR process. :'( Last question - did you have to notify anybody at the airport , when you were leaving Canada, that you are officially leaving / did anybody stamped your passport etc? - so that they don't think that you're still in Canada and the notice to leave doesn't change to deportation.

Sorry for all these questions but I tried to ask ppl about it and there was no answer but I've read a post from one guy who got a notice to leave Canada and left as he should. But when he tried to re-enter after some time he couldn't coz it turned out that his notice to leave changed into the deportation as he didn't notify anybody at the airport that he's leaving and nobody took checked his passport etc. :-X

So I'm a bit stressed about this possibility as well. :-\

It is very important if one is issued a departure order to check in with CBSA at the airport. They will take your departure order and update the computer system to note that you have departed. From my reading of the processing manuals (ENF 11 in particular) this should prevent you from even being flagged, as you complied with the departure order.

If you leave Canada without informing CBSA of your departure, the departure order converts to a deportation order. With a deportation order on your file, you are banned from returning to Canada for life. Or until you are granted a written Authorization to Return to Canada (ARC).

However, a departure order that you properly follow will not affect your spousal PR application. If you fail to obey the departure order - such as failing to check in with CBSA on departure - and it turns into a deportation order (after 30 days) then you would need to obtain an ARC. That application (along with the additional fee) will be processed as part of the spousal application.

I would encourage you to review ENF 10 and ENF 11 (available on the CIC website) as they cover removals (including departure orders).

 

[marie_ann]

hi Ryathe,

I came to Canada with an International Experience Canada visa (holiday working visa) and applied for a work permit with a specific employer but the application got rejected. The letter that I received from CIC was a physical letter and it said that I had 90 days to restore my status or I should leave Canada immediately. We called multiple times with the CIC hotline and contacted a few consultants and we were told that if I stay up to a month, it is OK. I stopped working immediately but I had to stay to complete paperwork with my boyfriend because the refusal made us accelerate completing the paperwork (we will be applying in December through Warsaw too by the way).

Nobody has told me about getting my passport stamped - and the letter was giving me a choice so I would not consider it a departure order..

 

[marie_ann]

So I left Canada a month after I received the letter so I followed instructions given by CIC.

 

[marie_ann]

@ computergeek:

You say that one with a departure order should get the passport stamped at the airport to update the system.
But I imagine that anyway, every time they look up for a person's name in their system, they should see all the arrival and departure dates??