Time quota -- confirming with PMM again

[toby]

Sorry for the repetition, PMM, but this issue keeps re-surfacing.

I believe you once conformed to me that the time a Permanent Resident spends abroad with a Canadian spouse souncts toward the two-year quota to maintain residency. True?

The reason for the repetition is that I keep reading from others that this time does NOT count.

For example, an extract from a recent post:

Hi Jeby:

This is an important issue: does time spent with a Canadian sponsor abroad count toward the two-years quota to maintain permanent residency?

You say no, as does Starzibal. Yet PMM (no slouch on Immigration matters) specifically confirmed to me that this time abroad DOES count toward the Residency quota.

(Not so for Citizenship, where one must actually be in Canada.)

So, I think we should verify with PMM once more, to be clear.

 

[PMM]

Hi

quote author=toby link=topic=36486.msg238103#msg238103 date=1268290554]
Sorry for the repetition, PMM, but this issue keeps re-surfacing.

I believe you once conformed to me that the time a Permanent Resident spends abroad with a Canadian spouse souncts toward the two-year quota to maintain residency. True?

The reason for the repetition is that I keep reading from others that this time does NOT count.

For example, an extract from a recent post:

Hi Jeby:


This is an important issue: does time spent with a Canadian sponsor abroad count toward the two-years quota to maintain permanent residency?

You say no, as does Starzibal. Yet PMM (no slouch on Immigration matters) specifically confirmed to me that this time abroad DOES count toward the Residency quota.

(Not so for Citizenship, where one must actually be in Canada.)

So, I think we should verify with PMM once more, to be clear.


[/quote]

1. Going to the horses mouth, the Immigration Act & Regulations:

Division 2
Residency Obligation

Accompanying outside Canada

61(4) For the purposes of subparagraphs 28(2)(a)(ii) and (iv) of the Act and this section, a permanent resident is accompanying outside Canada a Canadian citizen or another permanent resident — who is their spouse or common-law partner or, in the case of a child, their parent — on each day that the permanent resident is ordinarily residing with the Canadian citizen or the other permanent resident.

The Act

Residency obligation
28. (1) A permanent resident must comply with a residency obligation with respect to every five-year period.

Application

(2) The following provisions govern the residency obligation under subsection (1):
(a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are

(i) physically present in Canada,

(ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,

(iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or

The above should end the discussion. There is only one proviso, there has been one case at the IAD where a PR was sponsored by CC spouse. The PR was "landed" and then returned to his employment overseas and his spouse accompanied him, but did not work or study abroad. The IAD ruled that the PR was not accompanying his CC spouse, but she was accompanying him and therefor he did not meet his residency obligations.

PMM

 

[toby]

Thanks PMM.

I was set to be delighted at your answer, until I got to the proviso. It introduces a large element in uncertainty into an otherwise simple word, “accompany”.

For example, I am living in China with my wife, waiting for her Residency Visa. Once granted (if granted), we will spend at least 5 months a year in China, living in the apartment we just bought, and so she can be near her family.

To calculate how much time she may apply to her PR quota, may we use the time spent together in China (i.e. is she accompanying me?) or not (i.e. I am accompanying her)?

Or, won’t we know for sure until she applies to renew her residency? That would be worrisome!

(If we spend the remaining 7 months in Canada, there will be no problem, but I'd like to know how much latitude we have.)

 

[zygurn]

Well, would you be working/studying in China during those months? If you're working/studying there, it can be constructed as her accompanying you since you'd actually have a reason to be in China outside of your wife. I read a similar case where a Canadian PR moved to the US with her family and obtained US citizenship and married a Canadian citizen, they had a daughter and her husband worked in Canada and visited at the US. When she tried to enter Canada with her family, she wasn't allowed to enter as PR but had the chance to appeal. In the appeal, the judge specifically mentioned that she wasn't accompanying the Canadian citizen but the other way around so she didn't get her PR back because of that, she got it back because of their daughter who was a canadian citizen. In this case, the PR wife had been outside of Canada for more than 10 years.

 

[toby]

Thanks, Zygurn. That's useful information. Where do you read these cases? I need to do more studying on the matter.

This is a cautionary point, though. I simplistically assumed that "accompany" meant just that -- two spouses living together, no matter the reason for being outside of Canada. I never dreamed that CIC attached importance to the Canadian's reason for being outside of Canada.

 

[zygurn]

Here you go, it seems I miss-remembered the daughter part wrong, but the rest is as I remembered: http://www.canlii.org/eliisa/highlight.do?text=residency+and+compassionate&language=en&searchTitle=Federal+-+Immigration+and+Refugee+Board+of+Canada&path=/en/ca/irb/doc/2007/2007canlii67256/2007canlii67256.html Paragraphs 28 to 32 should be very important for you to read.

 

[toby]

Thanks a lot, PMM and Zygurn.

What I take from all this is that yes, days spent outside Canada with one's Canadian spouse (either a citizen, or a resident employed by the Canadian government or a Canadian incorporated company) can count toward one's residency quota AS LONG AS it is the resident who accompanies (goes along with) the Canadian spouse.

This means the spouse has to have a primary reason to be outside Canada, other than to be with the permanent resident, and therefore it is the permanent resident who accompanies the spouse. If it is unclear who is accompanying whom, who has the primary reason to be outside Canada, there may be problems at the time of renewing the PR.