Help Me Understand The Canadian Way Please

[Kev]

I have a unique situation that I have some questions about. Here is my situation:

1. Married a Canadian citizen in Canada 11 years ago and we are still married.
2. Brought her and her 2 children to the USA- she is a USA and Canadian citizen, children are USA PR and Canadian Citizens
3. She and I both have jobs in the USA. My job is a good job (about $60K a year) and cannot be replaced with a Canadian job easily
4. She is late 40s, me early 50s
5. I am a USA citizen (birth)

We are thinking about retirement to Canada and in fact wish to retire to Canada where her family is. I have not applied for any status in Canada before because it was my understanding that being a PR of Canada required that I be physically present in Canada for 2 1/2 years out of 5 or they would take away my status and I did not wish to spend $1000 and lose it. But on the other hand, my fear is that, if I wait for 12 more years when I am 62, the Canadians will refuse me because of my age or any health problems I might come up with by then.
NOW I have been told that I no longer have to be physically present so long as I reside with my Canadian wife in the United States which of course I do. So I wonder...

1. Is this true? Do the days of PR count while me and my Canadian wife reside in the USA?
2. Should I then apply now or still wait until I am 62 and we are within 2 years of entry into Canada?
3. I have a son that is 21. Should I include him on the application even though he has no intent at present of entering Canada?
4. Will I be approved?

 

[canadianwoman]

1. Is this true? Do the days of PR count while me and my Canadian wife reside in the USA?
2. Should I then apply now or still wait until I am 62 and we are within 2 years of entry into Canada?

Wait. Days spent accompanying a Canadian spouse in a foreign country count towards the Canadian residency requirement, but officials might decide that she is accompanying you and not allow the time. As well, to get the PR visa, a sponsor who is living abroad must prove that he or she will be returning to Canada to live with the sponsored person. Your wife won't be able to prove that now.

3. I have a son that is 21. Should I include him on the application even though he has no intent at present of entering Canada?

You have to include dependent children, but they can be listed as non-accompanying.

4. Will I be approved?

I don't think so, because your wife would have to prove she intends to relocate to Canada.

 

[YorkFactory]

officials might decide that she is accompanying you and not allow the time

I don't believe this is the case, and I've never seen any IRB decisions that support that position.

 

[PMM]

Hi

I don't believe this is the case, and I've never seen any IRB decisions that support that position.

There are 2 actually, 1 was overturned in the Federal Court.

 

[rjessome]

Hi

There are 2 actually, 1 was overturned in the Federal Court.

Hi PMM,

Do you have the links or key words? Thanks!

 

[toby]

Hi PMM,

Do you have the links or key words? Thanks!

The issue of "must the PR accompany the Canadian spouse while abroad, in order to count the days abroad toward the PR quota" has been discussed at length elsewhere. I summarized the result, in order to put the matter to rest; the upshot is that it is not important who accompanies whom, as long as the couple co-exists while abroad. Proving that co-existence is another matter. Here's the summary:

Topic: Can Permanent Residents (PRs) count time abroad with a Canadian spouse toward their PR quota?

This topic has been discussed in other threads, but only as a secondary issue, buried under a topic heading that has nothing to do with a PR spending time abroad, and counting it toward the 730-day quota. The purpose here is to bring the matter to the attention of any PRs who cannot meet the PR quota by spending 730 days in Canada per five-year period.

This topic is discussed thoroughly in Permanent Residency Obligations, under the topic Buying an Apartment in Canada to Meet Residency Requirements. Thanks go to Matthew for his excellent research on this complex and important issue, and to the many others like PMM who also contributed important information.

In brief, it does seem that a PR may count time spent abroad toward the PR quota as long as the PR was living with a Canadian citizen. It does not seem to matter whether the PR accompanies the citizen while abroad, or the citizen accompanies the PR – as long as they were living together abroad.

I say “seem” because in one court case the judge would have ruled against the PR (only humanitarian considerations led to a decision in favour of the PR), saying that it was the citizen who accompanied the PR, not vice-versa, and therefore the time abroad did not count toward the PR Quota. To understand this narrower, legalistic interpretation of “accompany”, go to

Smith v. Canada (Citizenship and Immigration), 2007 CanLII 67256 (I.R.B.)

All these cases can be looked up on http://www.canlii.org/en/index.php

Notwithstanding the Smith v. Canada case, several others DO allow the PR to count days abroad IF they were living with a Canadian citizen spouse. The most recent case was Li v. Canada (Citizenship and Immigration), 2009 CanLII 74606 (I.R.B.). Most compelling is the judge’s decision mentioning previous cases, and giving a clear rationale:

“I have looked at two former decisions of this Tribunal which considered this issue. While these decisions are not binding upon me, I consider them to be indicative of the manner in which this Tribunal has interpreted subsection 28(2) of the Act previously.[4] In Mkdsi and Abraham the panels held that the word “accompanying” is to be interpreted according to the common sense and ordinary meaning of the word which includes to “coexist” or “coexisting”.[5] There was no suggestion that the appellant and his wife were not living together in China during the relevant period. Therefore I conclude that the appellant was accompanying his wife.”

The point to take from this decision is that it does not matter who (citizen or PR) had the principal reason to be abroad; the only thing that matters is whether they were living together or not.

So, there are several court or panel decisions that allow the PR to count time spent abroad living with a Canadian spouse, and one that (Smith v. Canada) that worries about who accompanied whom. It would be nice to have 100% certainty on this issue, but we don’t.

There may be some PRs who wouldn’t mind the uncertainty, time, and expense of appearing in front of a panel, but I’d prefer to avoid the whole process if possible. Here’s how.

At the border, if an Immigration Officer is dubious that the PR has met the 730-day quota, have at the ready proof of the days spent abroad with the Canadian spouse, and refer the border officer to CIC Operational Manual ENF 23 Loss of Permanent Resident Status, page 18, section 7.5. Here’s the relevant section.


7.5. Accompanying a Canadian citizen outside Canada
R61(4) provides that each day a permanent resident is outside Canada accompanying (that is, ordinarily residing with) a Canadian citizen constitutes a day of physical presence in Canada, provided that the Canadian citizen they are accompanying is a spouse or common-law partner or parent.

In the case of a permanent resident outside Canada accompanying a Canadian citizen, it is not necessary to determine who is accompanying whom, nor is it necessary to determine for what purpose. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met.

For the purposes of A28(2)(a)(ii) and A28(2)(a)(iv), R61(6) defines a child as being a child of a parent referred to in those subparagraphs who is not and has never been a spouse or common-law partner and is less than 22 years of age.

Some may ask themselves why – given the clarity of the Manual – such cases ever go to court, but let that pass. I don’t know either. Maybe the PR did not know the manual, and maybe the Immigration Officer didn’t think to look at it. Who knows?

Of course, the easiest way is to spend the 730 days in Canada, but if that is not possible, have proof that the time abroad was indeed spent with a Canadian spouse, and have the Operational Manual (or the above abstract) at the ready. That should get the PR safely and peacefully through Immigration to the waiting arms of his or her family!!

 

[rjessome]

Thanks Toby.

 

[YorkFactory]

There are 2 actually, 1 was overturned in the Federal Court.

So there's one decision that was overturned...was the other one upheld, or just not appealed?

CanLII can't find any cases that cite Smith. Since Smith was allowed to return to Canada, my guess is that the decision wasn't appealed. That doesn't mean it's good law; it just looks like a real court hasn't looked at it.

 

[Kev]

Wait. Days spent accompanying a Canadian spouse in a foreign country count towards the Canadian residency requirement, but officials might decide that she is accompanying you and not allow the time. As well, to get the PR visa, a sponsor who is living abroad must prove that he or she will be returning to Canada to live with the sponsored person. Your wife won't be able to prove that now.You have to include dependent children, but they can be listed as non-accompanying. I don't think so, because your wife would have to prove she intends to relocate to Canada.

Wow! So she has to prove she intends to return to Canada. I don't know how she does that. All her family lives there. Why would Canada not consider that as proof?

 

[Kev]

So there's one decision that was overturned...was the other one upheld, or just not appealed?

CanLII can't find any cases that cite Smith. Since Smith was allowed to return to Canada, my guess is that the decision wasn't appealed. That doesn't mean it's good law; it just looks like a real court hasn't looked at it.

I can easily prove that I exist with my Canadian wife. We have 11 years of co filed tax returns, bank accounts and loans, cars and houses in both names. Where I see difficulty is in the "am I accompanying her or is she accompanying me" question. I am obviously the dominant earner in the household. For years my wife stayed home when the kids were younger. She only works part time now and earns about 1/5th of my salary. So they would probably make a finding that she accompanies me.

 

[Calvados]

@Kev the proof of intention to return to Canada is either a job offer or signed lease agreement or maybe proof of owning a home in Canada. I do not think that just "having relatives in Canada" proves anything to CIC.

_She_ is Canadian citizen, so no matter your levels of income are, she has to sponsor you (granted, there is no minimal income requirement for spousal cases)

 

[toby]

I can easily prove that I exist with my Canadian wife. We have 11 years of co filed tax returns, bank accounts and loans, cars and houses in both names. Where I see difficulty is in the "am I accompanying her or is she accompanying me" question. I am obviously the dominant earner in the household. For years my wife stayed home when the kids were younger. She only works part time now and earns about 1/5th of my salary. So they would probably make a finding that she accompanies me.

Kev: Re-read my post above. CIC's own operational manual says that "who accompanies whom" is not an issue; the PR needs only show that he or she was together with her Canadian spouse.

On the issue of proving that the PR intends to return to Canada, there are several very good posts on this topic, in which members outlined quite detailed "letters of intention" to CIC: specific plans for looking for a job, even settling in a specific acrea of the city; etc etc. I included a simple lease agreement, and detailed a few plans for what we would do once in Canada. These were sufficient for Mississauga to approve the sponsors. Approval of sponsors seems almost automatic by Mississauga; it is the Visa Office looking at the applicant that takes so long. So, don't sweat either point; just show you were together while abroad, and outline a quick plan for returning to and living in Canada.

 

[heatherusa]

Kev: Re-read my post above. CIC's own operational manual says that "who accompanies whom" is not an issue; the PR needs only show that he or she was together with her Canadian spouse.

On the issue of proving that the PR intends to return to Canada, there are several very good posts on this topic, in which members outlined quite detailed "letters of intention" to CIC: specific plans for looking for a job, even settling in a specific acrea of the city; etc etc. I included a simple lease agreement, and detailed a few plans for what we would do once in Canada. These were sufficient for Mississauga to approve the sponsors. Approval of sponsors seems almost automatic by Mississauga; it is the Visa Office looking at the applicant that takes so long. So, don't sweat either point; just show you were together while abroad, and outline a quick plan for returning to and living in Canada.

I included a letter from my mum and dad stating that they acknowledged that we were planning to move back and that we were welcome to stay with them for as long as necessary. I also included the application and acceptance from the school that we planned to enroll my daughter in. That seemed to be good enough.

Of course 4 months in to the process I actually moved back but since Buffalo never replies to anything I dont know if that made a difference. In our CAIPS notes it mentioned me changing my address to a Canadian one but there was no specific mention of if that made a difference.

 

[Kev]

Kev: Re-read my post above. CIC's own operational manual says that "who accompanies whom" is not an issue; the PR needs only show that he or she was together with her Canadian spouse.

On the issue of proving that the PR intends to return to Canada, there are several very good posts on this topic, in which members outlined quite detailed "letters of intention" to CIC: specific plans for looking for a job, even settling in a specific acrea of the city; etc etc. I included a simple lease agreement, and detailed a few plans for what we would do once in Canada. These were sufficient for Mississauga to approve the sponsors. Approval of sponsors seems almost automatic by Mississauga; it is the Visa Office looking at the applicant that takes so long. So, don't sweat either point; just show you were together while abroad, and outline a quick plan for returning to and living in Canada.

Thannks