Common-Law Status and living apart

[detam.10]

Good Evening,

My question is regarding the eligibility to apply for permanent residence (outland from Japan) under the "Common-Law" status.

Based on the CIC page on "What does the Government of Canada consider to be a common-law relationship", it provides this definition:

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.

A common-law relationship ends when at least one partner does not intend to continue it.

As for my situation, I have been seeing my partner (in Japan) since 2013 (not living together). However, I returned to Canada in 2014.
In 2015 (feb), she came to live with me in Canada under a working holiday visa for one year. However, she returned this year (2016, Feb) to Japan as her visa expired.

Now what I'm wondering is...
1. The one year spent living together should satisfy the definition on the CIC page?
2. Since she has gone back to Japan, is there a time period of living apart for which we would no longer be eligible to apply for PR as a common-law relationship? i.e. if we lived together for 1 year, and then lived in different countries after that, would we still be eligible to apply for PR, say 5 years later? 10 years later?
I'm concerned since we have been living apart for almost 10 months now.

If I had to guess at answers to my own questions:
1. I think so, since our relationship was marriage like (i.e. living under the same roof, I cover the expenses of living (food, rent, utilities, travel, etc...))
2. Not entirely sure about this one. If I had to guess, since it doesn't mention anything about this I assume there is no time limit for living apart? Although it would seem strange if we lived one year together, then lived apart for 10 years and then applied for PR...

Thank you in advance!

 

[desertFlower]

Hi detam,

I believe the same as you. You lived together for 12 consecutive months, that's all what matter for CIC. You will need prooves of relationship as usual (common bills, photos, flight tickets together, etc.) For the delay, as she was here last year (and not 10 years ago), this should not be a problem. A lot of couples are not together during the process anyway. I think are eligible to apply as Common-Law. Good luck!

 

[profiler]

I am going to go out on a limb here. So if I am totally wrong, my apologies.

Common-law relationships only exist when the partners are co-habitating. Once one of them moves out from the shared residence, the common-law relationship no longer exists.

 

[Rob_TO]

I am going to go out on a limb here. So if I am totally wrong, my apologies.

Common-law relationships only exist when the partners are co-habitating. Once one of them moves out from the shared residence, the common-law relationship no longer exists.

No, definitely not correct. As long as they cohabited for the 365 consecutive days, then they are common-law even if they now live apart and can apply as such as long as the relationship continues. As the manual says though, the longer the time apart the harder it gets to prove the common-law relationship exists. So should apply as soon as possible.

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

 

[profiler]

No, definitely not correct. As long as they cohabited for the 365 consecutive days, then they are common-law even if they now live apart and can apply as such as long as the relationship continues. As the manual says though, the longer the time apart the harder it gets to prove the common-law relationship exists. So should apply as soon as possible.

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

Good to know! Thanks, Rob! I tried to find it in the manuals, but was drawing a blank!

 

[canuck_in_uk]

In 2015 (feb), she came to live with me in Canada under a working holiday visa for one year. However, she returned this year (2016, Feb) to Japan as her visa expired.

What are the exact dates? If you are even one day less, you do not qualify as common-law.

 

[detam.10]

What are the exact dates? If you are even one day less, you do not qualify as common-law.

We lived together from 2015/02/06 to 2016/02/05
i.e. her flight arrived on 2015/02/06 and she left the country on 2016/02/05.
The working holiday visa lasted for one year, so she stayed the maximum amount of time possible.

Also, thanks to everyone for the reply!

 

[detam.10]

Did you count the days in between the said dates? I counted it just to be sure..And it looks like you are one day short of the required cohabitation days. I could be wrong you know..

Hi prvc,

Thanks for the reply.

Including the day that she left, I thought that would have been 365 days?
Or perhaps it's somewhat of a grey zone?

I am a bit worried now *cringe*

 

[profiler]

Did you count the days in between the said dates? I counted it just to be sure..And it looks like you are one day short of the required cohabitation days. I could be wrong you know..

It will depend if CIC is considering "12 months" as 364 or 365 days. Technically it should be 364.25 days. If they round down to 364, then they just made it. If they round up, then they are just outside.

If they purely add 12mos to 2015/02, then it would be the same day in 2016/02.

 

[Ponga]

It will depend if CIC is considering "12 months" as 364 or 365 days. Technically it should be 364.25 days. If they round down to 364, then they just made it. If they round up, then they are just outside.

If they purely add 12mos to 2015/02, then it would be the same day in 2016/02.

AFAIK, one year means 365 days. I suspect that the OP may have a problem...especially if the visa officer calculates 364 days as well.

1 year = 365 Gregorian calender days (366 days in a leap year).

It takes the Earth approximately 365.242189 days – or 365 days, 5 hours, 48 minutes, and 45 seconds – to circle once around the Sun.
http://www.timeanddate.com/date/leapyear.html

 

[profiler]

AFAIK, one year means 365 days. I suspect that the OP may have a problem...especially if the visa officer calculates 364 days as well.

1 year = 365 Gregorian calender days (366 days in a leap year).

It takes the Earth approximately 365.242189 days – or 365 days, 5 hours, 48 minutes, and 45 seconds – to circle once around the Sun.
http://www.timeanddate.com/date/leapyear.html

Yup, you're right. Typo and didn't proof read it.

That said 2015/02/06 cannot be counted as a day (I wouldn't think) as it appears to be an arrival date. That would make the first full day that they spent co-habitating would be 2015/02/07. Unless the partner arrived at midnight?

 

[Rob_TO]

We lived together from 2015/02/06 to 2016/02/05
i.e. her flight arrived on 2015/02/06 and she left the country on 2016/02/05.
The working holiday visa lasted for one year, so she stayed the maximum amount of time possible.

Also, thanks to everyone for the reply!

As long as they count the first day and last day as "days" to qualifying even though they were partial days, you would be fine.

I have no idea on the actual guidelines visa officers use here as I've never seen a case being rejected or appealed due to this.

 

[detam.10]

Yup, you're right. Typo and didn't proof read it.

That said 2015/02/06 cannot be counted as a day (I wouldn't think), the first full day that they spent co-habitating would be 2015/02/07.

Oh my...

Thank you guys for your replies and insight.

Now knowing this...

We are actually planning to have a marriage ceremony next year 2017 in October (ceremony, party, etc).
We were planning on doing the marriage paperwork sometime in Summer 2017.

However, since I will be visiting her in Japan next month (Dec 2016).

Do you guys think it would be the best option for us to:
1. Hold the marriage ceremony in Oct 2017 as planned
2. When visiting Japan in December 2016, become legally married (fill out all the paperwork, etc), and then submit the PR application

Or would this be frowned upon by CIC in some way?

 

[Rob_TO]

Oh my...

Thank you guys for your replies and insight.

Now knowing this...

We are actually planning to have a marriage ceremony next year 2017 in October (ceremony, party, etc).
We were planning on doing the marriage paperwork sometime in Summer 2017.

However, since I will be visiting her in Japan next month (Dec 2016).

Do you guys think it would be the best option for us to:
1. Hold the marriage ceremony in Oct 2017 as planned
2. When visiting Japan in December 2016, become legally married (fill out all the paperwork, etc), and then submit the PR application

Or would this be frowned upon by CIC in some way?

If it was me I would just apply as common-law. Counting the first day and last day would give a full 365 days/1 year. Rules don't say anything about full vs partial days, and I imagine it's happened before that someone uses a 1-year visa to qualify for common-law.

However this is just my personal opinion, as I said I don't see any previous cases on record regarding this specific situation.

 

[detam.10]

If it was me I would just apply as common-law. Counting the first day and last day would give a full 365 days/1 year. Rules don't say anything about full vs partial days, and I imagine it's happened before that someone uses a 1-year visa to qualify for common-law.

However this is just my personal opinion, as I said I don't see any previous cases on record regarding this specific situation.

Thank you very much Rob. I really appreciate the time that you (and the other responders) take to reply to my questions.
If I find out any more details about this, I will be sure to post it here in case if anyone else runs into this situation (although I'm sure I'm not the first person to do this... )