Common law - interrupted cohabitation

[Amra]

Hi,

I know that there are tons of topics in regards to this matter, and each of the stories has its own twist.

I would like to ask your opinion regarding my situation: I am a Canadian citizen and I want to sponsor my partner who is a Portuguese citizen. We met online 2 years ago, went on a few trips together, then decided to live together. He came here in Canada last year in June, but in December he had to return to Portugal because his father had to have a bypass surgery. He came back in January, but at the airport he encountered some difficulties due to an officer that didn’t believe him that he came to visit me. He was told that lots of young Portuguese people are coming to Canada to work on the black market. They call me on my cell and invited me to their office and asked me the purpose of his visit. I explained to the officer that he is my partner, that I intent to sponsor him but we are waiting for that one year period of living together (not knowing that in reality, the one year of living together was suppose to be with no interruptions). He told me that I don’t have to wait for one year, and that I can apply anytime I want. The officer also told me that he will make a note in the system that my partner has to bring a bank statement next he comes to Canada, to prove that he has enough money to support himself, and that he advises him not to stay more than 6 months or he will be refused entry to Canada. I told him that I am the one who supports him while he is in Canada.
Having these advises from the custom officer, we followed them. So after 6 months, in July of this year he returned to Portugal. He did the medical exams in September, obtained the police certificate from another European country where he lived for more than 6 months. All were pretty much going well, we were getting the forms and the proof that we are in a genuine relationship, until I stumbled upon the fact that in order to prove that we are common laws, we were supposed to be living together uninterrupted for one year. We do have the rental lease on both our names (even though he is added on the lease only as a tenant, because the landlord doesn’t allow you to co-sign a lease without a letter from your employer. Him being a visitor, he doesn’t work anywhere, so he couldn’t sign). We do have the utility bills on both our names. I have him as a secondary credit card holder. We have letters from friends and family stating that our relation is genuine. Pictures, plane tickets, proof of my visits to Portugal. But the fact that he had to return to Portugal last year for 3 weeks while his father was sick impedes us to be truly common laws.

My question to you is: should we still try to send all the documents explaining the situation, and see if they will understand? He is coming back this month and this time, he will stay for one year, no matter what the custom officer will say (we will get an extension). We don’t want to lose one year, especially with all the other documents (medical, police certificate) being ready.
We can go to a notary public and sign a declaration that we are in a common law relation, and add that to the package, but not sure if it has any impact to our case.

Thank you for your time, and any advices you might think are appropriate to this situation.

 

[Ponga]

Unfortunately you cannot sponsor him because of the break in cohabitation. The 1 year cohabitation is absolutely critical and CIC will typically not budge on that requirement.

Your only option is to either get married (and then you can sponsor him immediately), or start the 1 year `clock' all over again if he returns to Canada.

 

[keesio]

I wonder why did the customs officer tell you that you can apply anytime? Maybe he thought you were married? anyway i'm sorry to hear that the bad advice tripped up your plans...

 

[canuck_in_uk]

But the fact that he had to return to Portugal last year for 3 weeks while his father was sick impedes us to be truly common laws.

Hi

If that 3 week break was the only time during the one year that you were apart, you should be OK. CIC allows for short separations due to things like family obligations. Explain that he only returned to Portugal because of the family emergency and include evidence of the father's illness/surgery/hospital stay etc.

http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf

Section 5.35 - 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 the 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.

 

[amhel26]

Hi.
Im not expert but I was in somehow similar situation. This is one of the posts where i got some advice
http://www.canadavisa.com/canada-immigration-discussion-board/common-law-month-appart-t228140.0.html;msg3295168#msg3295168

I decided to wait and do the full 12 months continuously...however in my situation we were apart for a full month (35 days) and i only had to wait 3 months to have the full year, i didnt had to start over and i didnt had all the paperwork you seem to have.

I honestly believe that if it is less than a month apart i would apply for common law if you have enough evidence.
This manual was very helpful to me...and if you check point 5.36 it might help you and even i would use that specific instruction as an explanation.
http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf

One of the reasons I waited was to be able to gather more proof of common law...if you have that then again it all depends on the immigration officer so at the end you do the best application you can and try to look for all red flags and details they might find...at least thats the way i did it.

Consider another thing someone mentioned to me...if for any reason common law doesnt get approved, you can always get married. I know it sounds bad, i mean its not a reason to get married but is an option available...so just something to have in mind

At the end theres one thing you are mentioning that i will be very careful with..you say he will be back in one month and stay for a year no matter what...be careful how hes planing to enter the country and what is he going to say. I had a bad experience before, seems you had problems one time already, I will be worried about making sure he can enter to canada, is not that easy and I had experience with immigration officers that are not that friendly.

Maybe check comments from members that know more about this but if you have a full good common law application i would apply if its less than a month of separation.

Hope it helps.

 

[Ponga]

If only CIC would truly define what is considered an acceptable `temporary' separation!

 

[scylla]

If only CIC would truly define what is considered an acceptable `temporary' separation!

Agreed. The problem is that this definition doesn't exist and for this reason no one here is going to be able to tell you for certain if CIC will ignore the three weeks or consider it a break in cohabitation. We've seen them to both. So it's unfortunately a dice-roll.

 

[Rob_TO]

In my opinion, a 3 week break within 12 continuous months would not break the cohabitation, and you should be fine to apply as common-law.

As was mentioned though, the only opinion that really matters is that of the visa officer reviewing the application. But I think you would have a high chance of being approved.

 

[Amra]

Thank you very much for your answers.


@canuck_in_uk : regarding the 3 weeks of him being away, those weeks were the only time he was away before his return to Portugal in July.

@keesio: when I went to talk to the custom officer at the airport, I did say he is my "boyfriend" and that I intend to sponsor him. I showed the officer pictures that I had on my phone, with my partner and I. To be honest, I wish I didn't listen to him. But I thought I was following the law.

My mistake was that I did not get myself informed ahead of time. But I kind of look into it as not wanting to have a "premeditated" common law relationship. At that time, when we decided to move in together, we didn't look into what is needed to be able to sponsor someone. We were more thinking "let's live together, see how things will work out. if everything works out well, we move our relation forward". I guess that now we have to pay the price.

@amhel26: the marriage could be a solution, it's true. Even if we truly love each other, and one day we will get married, I do not want to rush it. I do not want to get married just because otherwise I cannot sponsor the person I love.
Also, regarding his return, he will be back to Canada in 2 weeks. He will have the bank statement with him (as the custom officer advised him in January), showing that he could support himself, if needed. He will also have with him the medical exam paper, the 2 police certificates (one from Portugal, one from Switzerland). We were thinking that if asked, he will say that he wants to stay for 6 months with me, and that we are planning to start the sponsorship process. We are a bit afraid that he could be sent back, on the reason that he needs to wait in his country for his sponsorship papers. It will be his 3rd time entering Canada. I'll keep my fingers crossed.

I will still apply for sponsoring him. I know it's risky. But I will take my chances. "it's a dice-roll", as Scylla says.

It is true that it all depends on the person who is analizing our case. We will write a letter explaining the reason he had to return to Portugal for a short time. On the letter his mom wrote to support our relation, she mentioned as well that her son had to return home because his father was sick.

I have two more questions, if you don't mind:

1. In the extent that our case will be rejected, and if by that time we already have the 1 year of continuous cohabitation, could we appeal the decision, on the reason that we have one year of cohabitation and ask them to re-analize the case?

2. if our case is rejected, and we cannot appeal the decision, will it diminish our chances to re-apply once the 1 year of full cohabitation will be completed ?

Thank you again, for your time and great answers and suggestions.

 

[canuck_in_uk]

Seniors, how many refusals have you guys actually seen on the forum for breaks of 3 weeks? Not trying to be funny, I'm asking in all seriousness. I recall someone, possibly scylla, posting about one couple that was refused but I don't recall anymore.

In this case, with proper documentation showing that he left because of his father's life-threatening illness, I think it should be OK. I wouldn't say the same thing if it were simply a holiday to visit family or if it was more than 3 weeks.

We were thinking that if asked, he will say that he wants to stay for 6 months with me, and that we are planning to start the sponsorship process. We are a bit afraid that he could be sent back, on the reason that he needs to wait in his country for his sponsorship papers. It will be his 3rd time entering Canada. I'll keep my fingers crossed.

1. In the extent that our case will be rejected, and if by that time we already have the 1 year of continuous cohabitation, could we appeal the decision, on the reason that we have one year of cohabitation and ask them to re-analize the case?

2. if our case is rejected, and we cannot appeal the decision, will it diminish our chances to re-apply once the 1 year of full cohabitation will be completed ?

I would also suggest that you guys pay the $1040 sponsorship fees and that he have that receipt when entering Canada.

1. Don't appeal. You would need to re-apply with a new app showing the one year of cohabitation.

2. No, the refusal will not diminish chances of a new app.

 

[amcpons]

Hi.
I think you are doing the right thing and asking the right questions. With the returning into canada i agree with making sure you have the receipt but also..at least in my experience, make sure he can say that hes only visiting...bank statement might not be enough. To me they wanted, proof of how i was going to support myself, proof of link back to my home country, and proof of intention to return. They didnt wanted to let me in without a return ticket and they said if i had my partner here and if my extensions or application was denied then i will never leave canada..so be very very careful.

I will ask opinions of other member on what is the best way to prepare for it. Luckily he will have a good officer and go through but i know that if he says he is applying for residency...it might be tricky.
I would suggest, you already have the year of cohabitation..so mention that, say hes just visiting while application is in process, hes going to stay for a few days or months...dont know..just have a backup plan in case. He can say he applied outland because hes planning to come and go so he can see you.
To me they only gave me 2 months stamp because of that..i had to show a return ticket with open date. Then i applied for extension and it was all fine, but if it was anything different they would not have let me in.
Hope that helps.
As for the application good luck, go for it, i think you have a strong case.

 

[Ponga]

IMHO, the fact that the OP and her partner were unable to meet the full year that is required, compounded by the fact that her partner only stayed for 6 months after his return...and has now been away for 4 months...may negatively influence the VO who reviews the application.

Again, it will all depend on the personal opinion of the VO that gets the file.

 

[Amra]

Ponga, you are right. The fact that he has been away since July, might be a negative influence on the application. But he left because of what the custom officer told him that if he overstays he will be refused entry to Canada. And we thought that him returning after a month or so will also have a negative outcome with the custom officer, based on the bad experience we had in January. I did go and visit him in Portugal in August. I spent there 2 weeks. He did his medicals in September. And now he is coming back.

I just paid the $1040 fees, and I sent him the receipt so he can have that with him. He does have a return ticket, 6 months minus one day from his entry date(we always buy the ticket with a 6 months return date. Same as we did in January, but they still gave us griefs).

His birthday will be 3 days after his entry date. He will tell the officer that he wants to visit me to spend his bday with me, then Christmas. They might not care about that though.
From other posts I read, I saw that it is not a good idea for him to tell the officer that we are common law, cause it might bring up a red flag, thinking that he will overstay based on that.

Is it better for him to say that he is my "boyfriend" and he is visiting me? If so, what is the point of showing the other documents like application fee receipt, medical exam receipt, police certificates? Wouldn't that bring up a red flag? What should he say in order for him to have a "smooth" return?

Let's assume that he is granted entry to Canada. After 6 months we extend his stay. One year from now we re-apply (assuming that we lost the actual case due to interrupted cohabitation). Can we extend his stay again? How many times can we extend his stay? If a sponsorship case lasts on average 15 months, in our case will be one year from now, plus 15 months ... that's 3 extensions already. Can we get that many extensions?

 

[scylla]

Seniors, how many refusals have you guys actually seen on the forum for breaks of 3 weeks? Not trying to be funny, I'm asking in all seriousness. I recall someone, possibly scylla, posting about one couple that was refused but I don't recall anymore.

There was definitely one. I will try to find it. I think it was last year. I agree that most are approved. But we've seen at least one refusal.

I also agree that there is no point appealing if there is a refusal. Reapplying will be the way to go.

 

[Rob_TO]

From other posts I read, I saw that it is not a good idea for him to tell the officer that we are common law, cause it might bring up a red flag, thinking that he will overstay based on that.

Is it better for him to say that he is my "boyfriend" and he is visiting me? If so, what is the point of showing the other documents like application fee receipt, medical exam receipt, police certificates? Wouldn't that bring up a red flag? What should he say in order for him to have a "smooth" return?

Never lie to CBSA. If you show a receipt for PR application, then obviously they will know you are either married or common-law. In most cases they are more lenient on people with PR apps in progress, and make sure to stress you will abide by the rules for length of stay.

Let's assume that he is granted entry to Canada. After 6 months we extend his stay. One year from now we re-apply (assuming that we lost the actual case due to interrupted cohabitation). Can we extend his stay again? How many times can we extend his stay? If a sponsorship case lasts on average 15 months, in our case will be one year from now, plus 15 months ... that's 3 extensions already. Can we get that many extensions?

There are no rules about extending stays, so every situation is different. As visitor status expires you simply renew to extend it for 6-12 months, and hope it's approved. Repeat as needed.