"Exceptional circumstances" for conjugal partners

[BeShoo]

I know I should write more details about our relationship before asking this question, but I don't have the time to write all the details at the moment and I want feedback on something specific. More details at the end, but first:

The question is: How important do you think it is to prove "exceptional circumstances beyond our control"? and what would be involved in that? This phrase appears on the CIC website (and in the processing manual), though I could not find it anywhere in the act or regulations. This is briefly how this question came up and a little bit of background:

We met with a legal aid lawyer last week to get a statutory declaration notarized/commissioned and he was surprised to hear that we intend to apply as conjugal partners. He says that being homosexual in Iran is the classic example of who might apply in this class. He says that, at the very least, we need to be specific about what our "exceptional circumstances" are and why they are "beyond our control." I agree that this is good advice and that we should use the wording that CIC uses, however...

He recommends that we seriously consider getting married and applying as spouses. It's not that we've never talked about it, but let me try to quickly explain why we don't really want to get married right now. (We're both men, by the way.) It's not that we're not ready for it (though I'm sure most people have last-minute doubts before a wedding). It's mainly that we don't feel that our families are ready for it.

We both feel that our families should be involved in, or at least invited to, any kind of wedding or commitment ceremony (and I'm sure that CIC would prefer that, too). So, we don't want to get married without inviting our families, but there's where the problem comes up.

In his case, a childhood acquaintance discovered from some online profile of his that he was gay and "outed" him to his father a few years ago, but his father never really accepted it, dismissing it as a "phase" or something. (He's 33.) His mother has died and his father's new wife doesn't get along with him very well.

His father (from Pennsylvania) and two of his father's sisters visited him in Florida before Christmas and at least one of them has figured out that he is gay. I've met his father twice, in December, 2008, and in February, 2010, on his way up for his current extended visit. When I met his father the first time, I took my partner away to a hotel for a few days but the last time he suggested we sleep together in the fold-out couch in his living room together so maybe he's getting more accepting, and we've heard that he told a friend that my partner had "gone to Canada to live with his boyfriend." We've never told him just what our relationship is, but I thinking he may be drawing his own conclusions.

As for my family, they don't even know I'm gay. They might suspect because I'm 49 years old and I've never even gone on a date with a woman before. The problem is that I'm in university right now and running out of money and I may need to depend on them to get through some financial troubles. I'm a little afraid to say anything that might cause them to cut off support, though I don't think that would happen.

Well, I could go on and on, but this is already too long. I do think I have fairly solid proof of interdependency, though I don't have time to go into that at the moment and this is already too long.

 

[abumawada]

this is sheeeeeeeeeeeeet

 

[esperando]

Disregarding abumawada's reply,

I think there are a few ways to see this.

When I was applying for my application and trying to decide whether conjugal or spouse was the best way to go (common-law was not possible), the impression I got from the guide and various forums was that the most solid way was spousal, then common-law was next best (because it's basically the same as being married), then if you couldn't be counted as common-law for some reason you could still apply as conjugal partners. It's only fair to have this class/route because so many people do not fit into the first two and everyone should have an equal opportunity to live together in Canada as a couple (positive aspect).

On the other hand, whichever route you take you will still have to prove to Immigrations that your relationship is genuine. It's hard enough applying as a spouse. With conjugal partners, you will also have to prove on top of everything else that you did everything humanly possible to live together but "exceptional circumstances" barred you from doing this for 12 consecutive months. The question is, will the IO consider your respective families being unaware or unaccepting of your relationship a circumstance "beyond your control" that prevented you from cohabitating or getting married? I would say no, or it may depend on the IO. Negative aspect: conjugal is really really hard to get approved, simply because the phrase "exceptional circumstances beyond your control" is such a subjective thing.

I mean, someone who puts a lot of value into family and what their families think of them would probably say, "Of course it's a good reason not to get married. How could you get married without the good wishes of your family?" On the other hand, someone could also say, "You could just move somewhere far away where your family won't ever see you and live together. Were there exceptional circumstances that prevented you from doing that? If your relationship is truly genuine, why won't you be open about it to your families?"

That's just the feeling I get from what I've read about conjugal sponsorship.

 

[BeShoo]

Esperando, thanks for your helpful reply. It's true that alienating our families is within our control. We could choose to alienate our families if we wanted to do that. We do, however have other things out of our control. I'll reply with more after we go to see the second lawyer.

 

[sogwap]

Either you are married or you are not.

 

[grettta]

I agree with the others that you don't really have a genuine barrier to allow you to qualify under the conjugal partners category. Same sex marriage is legal in Canada and you are both adults and free to make your own decisions (even if that means alienating your parents).

I would recommend getting legally married. You do not have to tell your parents, though you probably should because they will likely figure it out one day (because presumably you are planning to live with your partner - that's the whole point of sponsoring him, no?). Once you are married, you can explain on your application that your parents were not present for the wedding because they are not supportive of your lifestyle.

 

[bobshynoswife]

I agree - you should elope.

Applying as a spouse and having to explain why your families were not there is going to be a lot easier than trying to prove conjugal status, when really, you aren't conjugal partners. There are no barriers to you getting married at all.

Start sponsorship and deal with families later. I know it's not the same, but my family stopped speaking to me for 8 months after learning I was dating a black man. My mom told me that I was disowned, out of her will, because 'not a penny of her money would be spent supporting a blackie'. Seriously! She said she thought I was 'better than that'. It made me sick, because I was unaware she was that racist (I thought she was just old school Alberta)

After 8 months we were able to start talking, and 3 months later we could discuss my relationship. Now 6 more months have passed, and while she is not at all happy with my choice, she has learned to respect my decision, and even sent me an email sending her good wishes to us both on my wedding day. (I was married in Nigeria)

I know you don't want to upset your families, but living a lie is not the way to go either. If this guy is worth going through this huge sponorship ordeal, then your relationship should be celebrated! Get married, apply, then break the news gently. You may be surprised at the reaction.

I wish you both the best!

 

[iarblue]

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.

I dont know if this helps

 

[MexiCana]

I think when this lawyer gave you the example of a couple from Iran it was because she or he was trying to stress just how exceptional the circumstances must generally be for this category to be accepted. In Iran gay couples risk death. Another example would be persons who cannot be together because they are unable to obtain visas to be in the same country at the same time.

I sympathize with your situation but it is not comparable. There is nothing preventing the two of you from marrying. I agree with the others -marriage is the better route (or common law if you have been cohabitating for the requisite period or are willing to wait).

 

[iarblue]

Well he said that his parents have no clue he is even gay so to break the news to your family that you are gay then say were getting married all at once.
Even later to tell them after he is married saying im gay and i married him.
Beeshoo i think you need to let your family know you are gay,then if they get all weird and dont like it hate it what ever then you get married without them,you never know what they already know.Then once you discuss it with them tell them you want to get married too,nothings going to be easy,you want to be with him you want to marry him later maybe.
You cant say you are being held apart cause your not,you cant go common law as your not living together so you have two choices move in together after a year apply or get married and apply.

 

[journeyman]

Hi BeShoo,

I'll briefly explain my circumstances. They are not quite the same as my partner and I are heterosexual, but we share trying to go the conjugal partner route in common. Last year we tried to apply under conjugal partner, because we could not meet common law for what we felt were compelling reasons, and I was only legally separted, so able to live with someone common-law but still in the waiting period before final divorce to be able to legally marry.

Long story short, none of our reasons were acceptable. I was approved to sponsor him by CPC-M, but we got turned down by Buffalo. They accepted that we could not legally marry (you may also be ok here if Pennsylvania is not a state that recognizes same sex marriage, but they may question, why not get married in Canada) but did not accept that any of our reasons were valid enough to support not meeting the common-law definition. (You may have the same problem here). This added a good 15 months to the process, and we of course lost the fees paid. I won't go into the heartbreak part, I'm sure everyone on this site can relate to that one. We are now married and have submitted a new application as of April 15 under spousal. My experience plus others I have read leads me to believe that it is "next to impossible" to get approved under conjugal, particularly from a reciprocal country such as the U.S., and if it doesn't work, adds alot of extra stress and financial burden to an already difficult siutation. Another member, however, was successful with conjugal (AllisonVSC), I believe, she may be able to shed some light on how to deal with the compelling evidence for conjual, if you still want to pursue that route.

For myself, in retrospect, I would have not tried conjugal and gone the marriage route the first time, if I was starting all over again.

Hope this helps on some level. Good luck whatever you decide to do.

 

[BeShoo]

Thanks to all of you for your comments. I have no time at the moment to write any detailed reply but I assure that every constructive comment is being read and is appreciated.

Briefly, we met with a second lawyer today for a second opinion. She seemed a bit less than convinced that we would have to be in a situation like homosexuals being persecuted in Iran to succeed with a conjugal partner application but she did advise us to consider marriage, and to make sure that we had solid evidence that our affairs were combined to the maximum extent possible.

Not to change the subject too much, but has anyone reading this done a power of attorney? This is something that just occurred to me yesterday. I think it would be a good document to submit with everything else.

Scotiabank would not set up a joint account for a non-PR holder and I suspect that CIBC won't either. I might have to look for an HSBC bank to see if they will do it. I do have an account with RBC Bank in the U.S., but I haven't asked them since my partner's credit history is very bad and I'm afraid they might close my account when they look at his.

I really need to change my life insurance beneficiary too. My mother is currently on there, just to have someone, but if the agent informs her that she has been removed that brings up issues again. Everything is so difficult!

The lawyer today also said we need to prove not only that our relationship is genuine, but also that we are really gay. I think we do have evidence for that, too. We attended the queer community hero awards as a couple, we participated in events at my university's pride week, etc. I feel like we have pretty good evidence that our relationship is conjugal and I think that is the most important thing, though I don't know for sure if it is enough.

 

[esperando]

Scotiabank would not set up a joint account for a non-PR holder and I suspect that CIBC won't either. I might have to look for an HSBC bank to see if they will do it. I do have an account with RBC Bank in the U.S., but I haven't asked them since my partner's credit history is very bad and I'm afraid they might close my account when they look at his.

I was able to set up a personal bank account with TD Canada Trust with my passport as ID while I was on a TRV there. My boyfriend at the time already had an account there and he had to co-sign for me, but they were more flexible than RBC, who were like, "No you absolutely must have TWO piece of Canadian government-issued ID." Hopefully they'll be understanding with a joint account as well?

Good luck with everything!

 

[journeyman]

FYI

In our failed conjugal partner application were included designation of benefiary documents for my policies and RRSP's. As well as, testimonial letters from his parents (mine are deceased) and from friends, among other items attesting to the relationship.

I also had difficulty setting up joint accounts, tried RBC, CIBC, Scotiabank and ING without PR/SIN for my partner. Then gave up before getting to TD ( :) or HSBC. But considering the abovementioned was not enough, not sure how much more it would have helped. Did not think of power of attorney, but I think that is risky thing to do for either partner. One never knows what is in the future??? Personally I don't think I would consider that one unless it was a case of illness/infirmnity of some sort, but that is just me.

Again, Good luck.

 

[AllisonVSC]

My partner was able to add a joint savings account to his other bank accounts at RBC last spring when I was up here to visit for a week. We had no problems, didn't require any special Canadian ids or anything. I used my passport to prove my identity. RBC sent me an Interact card with just my name on it.