Out of proof - should we reapply?

[quokkamole]

Hi everyone,

I am the principal applicant of an inland common-law sponsorship application sent out in March 2020.
I've had my work permit since November, just recently completed my medical and now I received an e-mail saying:

"Based on the limited evidence that you have provided, I am not satisfied that you and your sponsor have been cohabiting in the same residence in a conjugal relationship for a period of at least one continuous year prior to the filing of your application. Canadian courts have set out the generally accepted characteristics of a conjugal relationship. These involve a mutual commitment to a shared life and a relationship of some permanence where the two parties are interdependent and have combined their affairs economically, socially, emotionally and physically. According to information that you have provided, while cohabitation between you and your sponsor began on *date*, multiple periods of non-cohabitation have occurred since that time. Additionally, it does not appear that you and your sponsor cohabited for at least one continuous year prior to or in between the periods of non-cohabitation. Based on the limited evidence relative to your mutual cohabitation for a period of one year, I am not satisfied that you and your sponsor meet the definition of a common-law partnership. "

They have given us 90 days to send any additional proof of cohabitating for at least one continuous year prior to applying. The problem is that we have already sent out everything we have to prove having lived and traveled together for over a year. We met while traveling and there were two short gaps when we were apart during our travels, which we have already explained in our application. After that we spent a few months apart, while I reunited with my family in my home country after being away for over a year and then came to Canada to be with my partner.

We have now cohabitated in Canada since late 2019 without any gaps and believe that we have more evidence to cover this time period. Would it be a good idea to withdraw the application and reapply?

I will also have to renew my passport which expires in May along with my work permit. Would I have to submit and entirely new open work permit application along with the new pr application, or am I able to apply to extend my owp with a new passport?

Any advice on our situation would be greatly appreciated. Thank you.

 

[Ude]

Before applying, did the total days you lived together add up to 365 days?

 

[armoured]

... that you and your sponsor have been cohabiting in the same residence in a conjugal relationship for a period of at least one continuous year prior to the filing of your application. ..."

They have given us 90 days to send any additional proof of cohabitating for at least one continuous year prior to applying. The problem is that we have already sent out everything we have to prove having lived and traveled together for over a year. We met while traveling and there were two short gaps when we were apart during our travels, which we have already explained in our application. After that we spent a few months apart, while I reunited with my family in my home country after being away for over a year and then came to Canada to be with my partner.

We have now cohabitated in Canada since late 2019 without any gaps and believe that we have more evidence to cover this time period. Would it be a good idea to withdraw the application and reapply?

The bolded language is the key - provide additional information about the start of your one-year period of cohabitation prior to the date of your application.

I don't understand your timeline - you say gaps and continuous living since late 2019 but that does not make a year to March 2020. Anyway, focus on answering the question. If you do not have additional proofs, still, provide even some repetitive information about that earlier period, and try to find anything additional. (You can write/add short additional about still living together since application and they might take into account but the one year before application is the actual requirement, period.)

You can consider re-applying down the road but right now, answer the question as best you can and hope they accept. If rejected, you can choose to appeal or re-apply.

Sorry, don't know answers to your other questions.

 

[quokkamole]

The bolded language is the key - provide additional information about the start of your one-year period of cohabitation prior to the date of your application.

I don't understand your timeline - you say gaps and continuous living since late 2019 but that does not make a year to March 2020. Anyway, focus on answering the question. If you do not have additional proofs, still, provide even some repetitive information about that earlier period, and try to find anything additional. (You can write/add short additional about still living together since application and they might take into account but the one year before application is the actual requirement, period.)

You can consider re-applying down the road but right now, answer the question as best you can and hope they accept. If rejected, you can choose to appeal or re-apply.

Sorry, don't know answers to your other questions.

Thank you, I really appreciate your reply. And sorry, I understand our timeline is confusing:

We lived together from October 2017 until December 2018 while traveling, and there were two gaps of a week and a couple of weeks that we spent apart during that time period, which we have explained in our application. This is the time period that we see as adding up to a year of cohabitation.

December 2018 - March 2019 I went to my home country and my partner returned to Canada after our travels
March 2019 - July 2019 I visited my partner in Canada
July 2019 - October 2019 I went back to my home country to spend time with family
October 2019 - to this date, I've lived in Canada with my partner with no gaps in cohabitation

I doubt we'll be able to provide any new evidence of living together continuously for a year before applying in March 2020.
Is it better to be rejected and then reapply, or to withdraw the application and send in a new one while I still have status under my open work permit until May?

 

[armoured]

We lived together from October 2017 until December 2018 while traveling, and there were two gaps of a week and a couple of weeks that we spent apart during that time period, which we have explained in our application. This is the time period that we see as adding up to a year of cohabitation.

Demonstrating that you were 'living together while travelling' can be extraordinarily difficult and you have compounded that by having a few gaps in there, even though the periods were relatively short and your total time more than a year.

I'm not saying they won't accept it but it is very difficult. Note that it's not just 'residing together' but forming a joint household with expenses, etc. Obviously if travelling throughout, it is hard to show a 'joint household.'*

I doubt we'll be able to provide any new evidence of living together continuously for a year before applying in March 2020.

My own personal view, as above - provide what you can and emphasize also (briefly) your continual record of living together from Oct 2019 to present. That period doesn't technically meet the test/is not part of the common law formal minimum - but they can also figure out that if forced to reapply later you will get accepted on this basis. So maybe they'll decide to be a bit generous and save everyone the time and hassle.

Is it better to be rejected and then reapply, or to withdraw the application and send in a new one while I still have status under my open work permit until May?

Very hard to say and I do not know enough / much about the open work permit situation. Again, personal view only, submit what you have ASAP and hope they respond quickly either way, start getting together your info for subsequent new application.



*Some here have strong views about marriage and don't wish to for [whatever reasons they think that are none of my business.] But common law is close to legally equivalent to marriage, and your file a classic case that if you'd just got married before applying, you would almost certainly not be having these issues about open work permit, status in country, etc., and relatively high likelihood you'd be sending your passport in for PR status at about this point. This is not a criticism and it's your business not mine, but these situations come up often enough that those looking at applying under common law need to be aware: applying under common law can be hard and lead to problems, just a fact.

 

[Phalos]

What ircc is saying is get married and reapply as spouses.

 

[canuck78]

What ircc is saying is get married and reapply as spouses.

No they are saying either provide more proof or reapply with your current proof of 1 year of continuous cohabitation as common law or prove that you are married

 

[armoured]

We haven't planned on getting married anytime soon and are afraid doing so in this situation would look suspicious.

I don't think it will look suspicious to get married after three and a half years of mostly residing together.

 

[armoured]

Wouldn't we still have to reapply under a different category? We believe we have strong proof of living together as common-law since October 2019 in the case of having to reapply.

Was only commenting on this statement above about getting married being suspicious.

Whether you have sufficient reason to do so and reapply - separate question.

I would look at the strong proof question differently - burden of proof is sort of reversed when applying as married. Simpler analysis, less subjectivity, easier for all. Your strong proof is even stronger in context of a legal marriage.