Help - Undeclared common law by one day off

[degm]

Hello, I'm in a very particular and nightmarish situation and I'd appreciate any feedback. I'm consulting with a lawyer tomorrow but I'd like to have other perspectives as well.

Story in a nutshell:
-Partner and I met in 2016
- In May 15, 2017 we moved in together, with a lease expiring May 14, 2018
- In December 2017 I received my CoPR
- In May 15, 2018 I landed in Canada
- In August 2019 we married in Canada. We submitted spousal application that same month

Today, we received a letter indicating that they may refuse our application because we lived in common law for "at least a year" prior to me landing as a Permanent Resident. However, we only turned one year on the day I landed in Canada. There was no way for me to declare common law status at any day before as we hadn't met eligibility for such status.

The letter indicates that I should submit an explanation and any evidence that common-law didn't happen, but I'm not sure what evidence to submit as they already have copy of the lease. I'm fearful that not only they would reject my spousal application, but also that my status as a PR is at risk.

Any thoughts? I'm desperate, any help would be much appreciated.

 

[k.h.p.]

You were a common-law couple on the day you landed. Not too clear how you landed (did you flagpole?) but you should not have landed that day - you should have contacted IRCC and not landed.

Your lawyer is your best bet.

 

[degm]

You were a common-law couple on the day you landed. Not too clear how you landed (did you flagpole?) but you should not have landed that day - you should have contacted IRCC and not landed.

Your lawyer is your best bet.

Thanks for the feedback. I don't understand though why would I have had to declare common law if co-habitation ended that same day I moved to Canada. Literally the mere fact that I landed in Canada marked the end of cohabitation, didn't it?

 

[scylla]

Hello, I'm in a very particular and nightmarish situation and I'd appreciate any feedback. I'm consulting with a lawyer tomorrow but I'd like to have other perspectives as well.

Story in a nutshell:
-Partner and I met in 2016
- In May 15, 2017 we moved in together, with a lease expiring May 14, 2018
- In December 2017 I received my CoPR
- In May 15, 2018 I landed in Canada
- In August 2019 we married in Canada. We submitted spousal application that same month

Today, we received a letter indicating that they may refuse our application because we lived in common law for "at least a year" prior to me landing as a Permanent Resident. However, we only turned one year on the day I landed in Canada. There was no way for me to declare common law status at any day before as we hadn't met eligibility for such status.

The letter indicates that I should submit an explanation and any evidence that common-law didn't happen, but I'm not sure what evidence to submit as they already have copy of the lease. I'm fearful that not only they would reject my spousal application, but also that my status as a PR is at risk.

Any thoughts? I'm desperate, any help would be much appreciated.

You're in a tough situation unfortunately.

If you could go back in time then we would have told you:

1) Complete the landing process before you have lived together for a year
OR
2) Wait until you are common law, notify IRCC and return your COPR, and add your common law partner to your application - then wait for new COPRs to be issued

At this point you're in a difficult situation since IRCC knows you were common law before landing which means you failed to declare your spouse.

Any chance your spouse qualifies to immigrate independently through an economic immigration program like Express Entry without relying on any points from you? Best option would be to abandon the spousal sponsorship application and go the economic immigration route.

 

[k.h.p.]

Thanks for the feedback. I don't understand though why would I have had to declare common law if co-habitation ended that same day I moved to Canada. Literally the mere fact that I landed in Canada marked the end of cohabitation, didn't it?

No, sadly. A single day doesn't mark a break, nor does a week - it's entirely possible you would have gone back home the next week and continued cohabitating. People can become common-law and then spend a month or two apart - unless the relationship ends, with a breakup etc., the common-law status doesn't immediately evaporate.

Your lawyer is going to give you the best advice. As @scylla says, had I had the chance, I'd have told you to move your flight a week or two earlier, or postpone it a few months so that you could at least advise IRCC that you were now common-law.

 

[scylla]

Thanks for the feedback. I don't understand though why would I have had to declare common law if co-habitation ended that same day I moved to Canada. Literally the mere fact that I landed in Canada marked the end of cohabitation, didn't it?

Landing in Canada may have marked the end of cohabitation however since you had already lived together for a full year, this made you common law. Common law partners must be included and declared in applications. This includes any point ahead of landing - including time time between when your COPR is issued and the time you land.

 

[k.h.p.]

I do think it's almost unreasonable for IRCC to be considering the day you moved as the end of the 12-month period (did your flight somehow last longer than 24 hours...? change time zones????) but at the same time, it is strictly a true interpretation.

 

[degm]

I do think it's almost unreasonable for IRCC to be considering the day you moved as the end of the 12-month period (did your flight somehow last longer than 24 hours...? change time zones????) but at the same time, it is strictly a true interpretation.

I'm sorry for taking more of your time, but do you have any input on the ramifications this would have on my own PR status, beyond the spousal sponsorship process? I'm just so concerned that such an unintended mistake would jeopardize my life here.

 

[scylla]

I'm sorry for taking more of your time, but do you have any input on the ramifications this would have on my own PR status, beyond the spousal sponsorship process? I'm just so concerned that such an unintended mistake would jeopardize my life here.

IRCC could technically come after you for misrepresentation but practically speaking we never see them do this in these cases. Assume you're fine. It's bringing your spouse here that's going to be the problem.

 

[armoured]

Hello, I'm in a very particular and nightmarish situation and I'd appreciate any feedback. I'm consulting with a lawyer tomorrow but I'd like to have other perspectives as well.

Story in a nutshell:
-Partner and I met in 2016
- In May 15, 2017 we moved in together, with a lease expiring May 14, 2018
- In December 2017 I received my CoPR
- In May 15, 2018 I landed in Canada
- In August 2019 we married in Canada. We submitted spousal application that same month

Today, we received a letter indicating that they may refuse our application because we lived in common law for "at least a year" prior to me landing as a Permanent Resident. However, we only turned one year on the day I landed in Canada. There was no way for me to declare common law status at any day before as we hadn't met eligibility for such status.

The letter indicates that I should submit an explanation and any evidence that common-law didn't happen, but I'm not sure what evidence to submit as they already have copy of the lease. I'm fearful that not only they would reject my spousal application, but also that my status as a PR is at risk.

Any thoughts? I'm desperate, any help would be much appreciated.

According to what you stated here, you did reside together one year - May 15 to May 14 is a full year, in the same way that Jan 1 to Dec 31 is a full year. The departure on the (second) May 15 does not change that.

Now if you moved in after the start date of your lease, that would be different. For example if you had documents showing you had other leases that overlapped and didn't move in until later, you might have a case.

But arguing that May 15 to May 14 is not a full year is not correct and likely to lose.

 

[degm]

According to what you stated here, you did reside together one year - May 15 to May 14 is a full year, in the same way that Jan 1 to Dec 31 is a full year. The departure on the (second) May 15 does not change that.

Now if you moved in after the start date of your lease, that would be different. For example if you had documents showing you had other leases that overlapped and didn't move in until later, you might have a case.

But arguing that May 15 to May 14 is not a full year is not correct and likely to lose.

Armoured, in fact the lease for my previous rental ended on May 31st, 2017 and it's only on my name as I lived alone. So there's an overlap of two weeks on the two leases. In fact I have texts with my former landlord indicating that I moved out on the 27th of May, 2017. Do you think that's an argument that could be made? I'd be submitting proof of such lease of course and the texts.

I would also be interested in arguing that besides the overlapping leases, I landed in British Columbia where a partnership is considered common-law after two years of co-habitation which was never the case. Is this something you'd consider smart to argue? I'm very desperate here, I never thought this would be an issue at all. Thanks

 

[scylla]

Armoured, in fact the lease for my previous rental ended on May 31st, 2017 and it's only on my name as I lived alone. So there's an overlap of two weeks on the two leases. In fact I have texts with my former landlord indicating that I moved out on the 27th of May, 2017. Do you think that's an argument that could be made? I'd be submitting proof of such lease of course and the texts.

I would also be interested in arguing that besides the overlapping leases, I landed in British Columbia where a partnership is considered common-law after two years of co-habitation which was never the case. Is this something you'd consider smart to argue? I'm very desperate here, I never thought this would be an issue at all. Thanks

You may have something to argue with the first point. I would strongly recommend you hire a good immigration lawyer to assist you going forward from here. This has stopped being a "do it yourself" application.

You have no leg to stand on with the BC argument. IRCC rules win here and you are definitely common law after just one year. So no, not smart to argue this.

 

[armoured]

Armoured, in fact the lease for my previous rental ended on May 31st, 2017 and it's only on my name as I lived alone. So there's an overlap of two weeks on the two leases. In fact I have texts with my former landlord indicating that I moved out on the 27th of May, 2017. Do you think that's an argument that could be made? I'd be submitting proof of such lease of course and the texts.

I would also be interested in arguing that besides the overlapping leases, I landed in British Columbia where a partnership is considered common-law after two years of co-habitation which was never the case. Is this something you'd consider smart to argue? I'm very desperate here, I never thought this would be an issue at all. Thanks

I fully agree with @scylla above - the question of when you factually moved in is the key, but if this is important to you, best to get a lawyer to assist and confirm.

The BC regs have nothing to do with this, do not attempt to argue that. Also irrelevant what common law rules are in country where you resided together (if there are any).

 

[degm]

Thank you all for your valuable insights. @scylla another (hopefully final) related question: would a certified immigration consultant be as qualified as a trained lawyer to provide advice in a matter such as this? Thanks so much in advance.

 

[scylla]

Thank you all for your valuable insights. @scylla another (hopefully final) related question: would a certified immigration consultant be as qualified as a trained lawyer to provide advice in a matter such as this? Thanks so much in advance.

No - you want to be working with an immigration lawyer. Completely different level of expertise and qualifications. Lawyers have a much higher level of expertise.

Consultants are OK for the basics and applications that are very straight-forward. This is not your situation.

Either deal with this yourself or hire an immigration lawyer.