Options? Is marriage our only hope

[canadianwoman]

It's a bit of a long shot and would be hard to prove, but you can technically co-habit without actually living together. See http://www.canadavisa.com/canada-immigration-discussion-board/spousal-sponsorship-t46995.0.html;msg357760#msg357760 and follow the link to Fantin v. Canada.

The appeal court judge found that the couple in Fantin v. Canada were cohabiting even though they weren't actually living together because they spent every weekend and holiday together. Still, I bet this is an anomalous decision, one that other judges might not follow. Even if you did what this couple did, though, and were successful, you would have a long wait: they eventually won their appeal, but why go through the hassle of an appeal if you don't need to.

 

[MexiCana]

The criteria for common-law is based on Canada federal case law and is one year of continuous co-habitation.

Where is the requirement of one year of continuous co-habitation set out? Is it in the case law also, or in a specific statute? I'm just wondering as I just did a quick scan of the IRPA and didn't see anything. Does that mean it's in the regs to IRPA or in another federal statute or somewhere else entirely?

 

[RobsLuv]

• Where is the requirement of one year of continuous co-habitation set out? Is it in the case law also, or in a specific statute? I'm just wondering as I just did a quick scan of the IRPA and didn't see anything. Does that mean it's in the regs to IRPA or in another federal statute or somewhere else entirely?

  CIC notes that it's in federal "case law" - which would seem to indicate that it is the result of a Supreme Court decision at some point - specifically when/where, I can't find just yet. Maybe dpenabill or somebody else knows. Just from Googling - it appears that there are two standards of common-law "qualification" - depending on whether the issue at hand is a provincial or a federal matter. When it comes to separation of a common-law relationship and what a separated partner might be entitled to, it's a provincial matter. When it comes to CRA or pension benefits, it's federal.
  
  From Common Law Separation Canada FAQs:
  
  "What is a common law relationship?"
  A common law relationship is when two people live together in a marriage-like relationship. The two people can be of the same sex or of the opposite sex. No legal formalities are required.
  
  "How long do we need to live together to be considered common law spouses?"
  It depends on whether the issue is federal or provincial, and in what province you live. Federal issues include items such as federal government pensions and division of the Canada Pension Plan upon separation. Property division is determined by provincial law and each province has its own definition of what a common law spouse is.
  
  • For Ontario family law purposes, you must cohabit 3 years, or have a child and a relationship of some permanence.
    
  • In British Columbia family law, you must cohabit 2 years in a marriage-like relationship.
    
  • Under New Brunswick family law, you must live together continuously in a family relationship for 3 years and one person must be substantially dependant on the other for support, or, where the couple lives together for one year and has a child together.
  • In Nova Scotia, you must live together for two years.
  • (From Wikipedia source) In Alberta, common-law marriage has been subsumed since 2003 under the terms of the Adult Interdependent Relationship Act,[13] which may additionally apply to any two unrelated people living together in a mutually dependent relationship for three years. Only one interdependent relationship is allowed at a time. In the event either of the common law spouses are married to other persons during this time, neither of the common-law couple can begin to be "interdependent" until divorce from other spouses occurs.
  • The Civil Code of Quebec has never recognized a common-law partnership as a form of marriage. However, many laws in Quebec explicitly apply to common-law partners (called conjoints de fait) in "de facto unions" (marriages being "de jure unions"), as they do to marriage spouses.[9] Same-sex partners are also recognized as "conjoints de fait" in de facto unions, for the purpose of social benefit laws.[10] However, common-law partners do not have any legal rights between them, such as alimony, family patrimony, compensatory allowance and matrimonial regime. A 2002 amendment to the Civil Code recognizes a type of domestic partnership called a civil union that is similar to marriage and is likewise available to same-sex partners. No citizen of Quebec can be recognized under family law to be in both a civilly married state and a "conjoints de fait" within the same time frame. Divorce from one conjugal relationship must occur before another conjugal relationship may occur in family law. Same-sex partners can also marry legally in Quebec, as elsewhere in Canada.
  
  Under Federal law, you can request a division of CPP benefits if you have lived together for 12 consecutive months. As well, if you have lived together for 12 consecutive months, the same income tax rules apply to married and unmarried couples.
  
  It's interesting to note, if you read the rest of the information at that link, that everyone (Provincial and Federal) assesses the establishment of a common-law relationship based on the same "behaviours" - it's only the time factor that changes from province to province, and federally. But for all federal benefits and applications (including Immigration matters, as CIC is a federal agency) the timeline is one year. I also noticed that some provinces do not qualify as common-law partners a couple who has been co-habitating if one of the partners is still married to someone else. Immigration Canada does allow the qualification under that situation - at least as it applies to the applicant being married to someone else. (See Section 5.38 of the OP2 Processing Manual.) I also noticed that this info doesn't bear out the OP's original claim that Albertans are considered common-law partners after only 6 months.
  
  So it seems Immigration Canada - in adhering to the federal standard - actually allows common-law qualification earlier than any of the provinces would . . . and also allows the qualification, according to the federal standard, even for couples who co-habitated in a country/province/State where common-law is not recognized.

 

[suzanne_m]

I don't know where it is in the IRPA, but it's on the "who can apply" webpage under common-law:

http://www.cic.gc.ca/english/immigrate/sponsor/spouse-apply-who.asp

 

[PMM]

Hi

I disagree - because Immigration Canada is very specific in its interpretation of common-law as meaning living together in a marriage like relationship for a period of at least one year. They talk about periods of separation being permissible, but only if they are short. This couple is not in a position to live together at all - unless he gets a new LMO and can work in Calgary . . . and she has made the clear decision not to give up her business or her home to move to Jasper.

There is one exception: conjugal partner qualification when there is an immigration barrier, or fear of persecution that makes it impossible for a couple to live together or to marry.

Not only is there not an immigration barrier in this case - both are living in Canada but, because of financial considerations, choose not to live in the same city - there is no impediment to marriage.

Like to add one note, if they marry and live in different cities in Canada, guess how CIC is going to view it?

 

[RobsLuv]

Married couples are not required to be living together to convince an IO of their "genuine" relationship. Considering the fact that he is restricted by Immigration Canada to living in one particular city because of his work permit, and she has a home and a business in another . . . as long as there is evidence of a continuing relationship, time spent together that's consistent with what would be reasonable for a couple living 6 hours apart, and all the evidences of phone calls, emails, chats, etc., it should be no different than assessing any other married couple - no matter how far apart they are.

 

[MexiCana]

• CIC notes that it's in federal "case law" - which would seem to indicate that it is the result of a Supreme Court decision at some point - specifically when/where, I can't find just yet. Maybe dpenabill or somebody else knows. Just from Googling - it appears that there are two standards of common-law "qualification" - depending on whether the issue at hand is a provincial or a federal matter. When it comes to separation of a common-law relationship and what a separated partner might be entitled to, it's a provincial matter. When it comes to CRA or pension benefits, it's federal.
  

• 
  
  Yes, there are two standards and I think it's terribly confusing for a lot of people. One year to sponsor, one year to file taxes as a couple. Three years to apply for spousal support (in Ontario assuming no children).
  
  Every federal body uses the one year requirement. I am vaguely recalling a case involving this but the only name coming to me is M v. H, which as you know was about same sex common law couples. I just skimmed the case to see if there is some jurisprudential history set out in the decision that would be of assistance to find the "case law" that CIC refers to. But alas, the impugned legislation in that case was Ontario's Family Law Act and there appears to be nothing there to assist us.
  
  In any event, I have found the statutory provision where the one year requirement is contained. I knew it had to be around here somewhere.
  
  It's in the definitions section of the Immigration and Refugee Protection Regulations (SOR/2002-227). Specifically, s. 1(1).
  
  Link here: http://laws.justice.gc.ca/eng/SOR-2002-227/page-1.html#anchorbo-ga:l_1-gb:l_1
  

 

[Baloo]

Hi

Like to add one note, if they marry and live in different cities in Canada, guess how CIC is going to view it?

MOC ?

 

[rjessome]

I don't know where it is in the IRPA, but it's on the "who can apply" webpage under common-law:

http://www.cic.gc.ca/english/immigrate/sponsor/spouse-apply-who.asp

It's here in the IRPR (Regulations) http://laws.justice.gc.ca/eng/SOR-2002-227/page-1.html#anchorbo-ga:l_1

The ONLY definition of common-law that matters and is applicable to immigration applications is this one:

“common-law partner”

« conjoint de fait »

“common-law partner” means, in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year.

 

[MexiCana]

It's here in the IRPR (Regulations) http://laws.justice.gc.ca/eng/SOR-2002-227/page-1.html#anchorbo-ga:l_1

The ONLY definition of common-law that matters and is applicable to immigration applications is this one:

“common-law partner”

« conjoint de fait »

“common-law partner” means, in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year.

Thanks, but we located that a couple of posts up. Do you know which "case law" CIC is referring to on its web site?

 

[rjessome]

Thanks, but we located that a couple of posts up. Do you know which "case law" CIC is referring to on its web site?

You were right in your previous post. It is M v. H.

http://www.canlii.org/en/ca/scc/doc/1999/1999canlii686/1999canlii686.html

This case created the test for the definition of a conjugal relationship and is utilized in OP 2.

It was a Supreme Court of Canada decision so it is the precedent used for this definition in all Canadian law.

 

[BeShoo]

M v. H is probably the most important decision in this context, but they cite "case law" because it's decisions of all the cases in history that are relevant. Many cases that are based on M v. H could have bearing on this and even some prior decisions could be relevant.

The appeal court judge found that the couple in Fantin v. Canada were cohabiting even though they weren't actually living together because they spent every weekend and holiday together. Still, I bet this is an anomalous decision, one that other judges might not follow.

Other judges in the same jurisdiction are required to follow this decision, unless they deem the details of their current case to be different from Fantin v. Canada. You have to treat everybody the same where the details of the case are the same.

That being said, an IO is not a judge and they would have to believe that a contrary decision of theirs would not be judged to be proper in a subsequent appeal. Such an application might very well come down to an appeal and you really want to avoid the time and expense this would involve, especially if there is a straight-forward alternative to forcing an appeal. You would have to write an extremely convincing application using such criteria if you wanted to avoid an appeal.

While it might be possible for the original poster to visit Jasper every weekend and do something similar to what the couple did in that case, there is no guarantee that such a strategy would work.

 

[canadianwoman]

While it might be possible for the original poster to visit Jasper every weekend and do something similar to what the couple did in that case, there is no guarantee that such a strategy would work.

I agree. The OP could try something similar, but what would probably happen is that the case would go to appeal, which they might win, but going to appeal takes a lot of time and money. It's better to arrange your life so that you have a straightforward case from the beginning.