undeclared same sex common law partner

[clearly]

Would they be able to file for family class if they got married?

 

[zardoz]

Would they be able to file for family class if they got married?

Only if it can be shown that they have not violated Regulation 117(9)(d) of the Immigration and Refugee Protection Regulations, which is what this thread really concerns.

 

[CdnandTrini]

Only if it can be shown that they have not violated Regulation 117(9)(d) of the Immigration and Refugee Protection Regulations, which is what this thread really concerns.

Zardoz, there is another case on this forum for another couple (male/female though) and they were living in UAE with several roommates but all at the same address. However it is against the law in UAE for men and women to co-habit. This couple eventually got married but had similar problems as to whether or not they were deemed as "undeclared common law". They were ultimately successful in their PR spousal sponsorship.

There is a section 9.3 (I believe it is in one of the OPS manuals) that talks about how visa officers need to understand the fairness of interpreting various degrees of misrepresentation. I think in countries where laws exist that couples cannot be open or honest about their relationships/marriages this section may be applicable.

9.3. Principles

Officers are to be guided by the following principles when applying the misrepresentation provision:

Procedural fairness: An individual should always be given the opportunity to respond to concerns about a possible misrepresentation. At a visa office, once the applicant has been given the opportunity to respond to the concerns, then the designated officer shall render a final decision regarding the misrepresentation to issue or refuse the visa.

At a port of entry or inland, the Minister‘s delegate shall determine whether or not to refer the case to the IRB for an admissibility hearing. It must be recognized that honest errors and misunderstandings sometimes occur in
completing application forms and responding to questions. While in many cases it may be argued that a misrepresentation has technically been made, reasonableness and fairness are to be applied in assessing these situations.

Material facts are not restricted to facts directly leading to inadmissible grounds. There are varying degrees of materiality. Fairness should be applied in assessing each situation.

Misrepresentations are sometimes made to conceal sensitive personal information to avoid embarrassment. Where the fact is of limited relevance or materiality, it should not affect the outcome of the application.
Applicants are responsible for ensuring that all the information submitted in their application is truthful and that all documents submitted are genuine. The test to be applied in the application of this provision is the balance of
probabilities. This is a higher standard than - reasonable grounds to believe. Where the standard is not met, the provision should not be invoked.

Misrepresentation can either be made orally or in writing (by submitting false supporting documents or writing a false statement or omitting to include the proper information in the application).

 

[zardoz]

I am aware of the case that you identified.

However, as you highlighted in bold, "Misrepresentations are sometimes made to conceal sensitive personal information to avoid embarrassment. Where the fact is of limited relevance or materiality, it should not affect the outcome of the application.".

In a case like this however, where the absolute decision is of whether someone is or is not a member of the Family Class, it cannot be said that it is of "limited relevance or materiality".

 

[CdnandTrini]

I am aware of the case that you identified.

However, as you highlighted in bold, "Misrepresentations are sometimes made to conceal sensitive personal information to avoid embarrassment. Where the fact is of limited relevance or materiality, it should not affect the outcome of the application.".

In a case like this however, where the absolute decision is of whether someone is or is not a member of the Family Class, it cannot be said that it is of "limited relevance or materiality".

I am still wondering then how the other couple managed to get PR approved. It seemed as though they provided their reasoning (and I personally do not believe either of these couples intended to misrepresent) and they were successful in spite of their challenges.

If a country does not recognize any legal status for a SS couple then how can they prove they were CL? And if they cannot prove in fact, they were CL, then doesn't that mean they de facto, were not CL? Does CIC never take these issues into account? What about H&C reasons? Many SS couples are risking their lives if they are "out" in their home countries. I am just curious as to how this should have been handled. If the father or OP had declared any of this at any point would CIC not expect some proof? And it seems that no evidence or paperwork actually existed anyway. So what does CIC do in the case of no proof? It seems to me that this case just may not be so cut and dry. I am no expert, I just see so many variables in how the rules are applied.

 

[myboss]

That was also one of my concerns here, If we just decided to get married in a country/ place where same sex marriage is legal since that is the only way we can get a legal documents to prove our relationship, however I read on one of the threads here about a couple living in UAE who decided to get married but still experienced issues of misrepresentation. I am really confused on what is the best way to handle this, as I don't want to be deemed as misrepresenting something... HELP!

 

[Catou]

If a country does not recognize any legal status for a SS couple then how can they prove they were CL? And if they cannot prove in fact, they were CL, then doesn't that mean they de facto, were not CL? Does CIC never take these issues into account? What about H&C reasons? Many SS couples are risking their lives if they are "out" in their home countries. I am just curious as to how this should have been handled. If the father or OP had declared any of this at any point would CIC not expect some proof? And it seems that no evidence or paperwork actually existed anyway. So what does CIC do in the case of no proof? It seems to me that this case just may not be so cut and dry. I am no expert, I just see so many variables in how the rules are applied.

Common law doesn't have to have a legal status it just has to meet the CIC definitions. A couple can provide evidence from family and friends to prove they were living together as a common-law couple. In myboss case, the country may not have legally recognised the relationship but family did and, presumably, the couple had some friends that would have known they were living together at the same residence. Photos, letters to them jointly or individually at the same address, and any of the other evidence CIC likes to get help to show the status of the relationship.

I agree that there are so many variables. How each country treats same sex relationships is another variable. CIC must have lee-way to take those factors into account.

 

[myboss]

That was aslo another thing i need to point out, we never told my parents about our relationship, i was never introduced to his parents or family either as his partner.we tried to be as casual as possible if my parents were around or in public. I do have some close friends who knows about our relationship but thats about it,

 

[myboss]

So i guess if we dont consider applying as common law since we dont have any proof of cohabitation other than living in the same address and then we get married to a place where SS marriage is legal then we could probably apply for spousal sponsorship? Would it give us any complications?

 

[cranberries]

hi. sorry for butting in...just my 2 cents myboss. if i were in your shoes and I would like to bring my partner to Canada, I would stay with him for 12 months then apply as common law partner.It would be less complicated if you will not mention that you cohabit with him before that...not a 100% guarantee but worth the try.

 

[truesmile]

Yes, OR . . . get "married" and don't mention the previous cohabitation.

Here's the thing, even putting aside misrepresentation there is still the outstanding issue presented by para. 117(9), your spouse/common law partner was "undeclared" when you landed (not when you applied, but when you landed). The VO officers have NO leeway on that, they MUST refuse your application if that should be uncovered. Then you're into a whole long drawn out appeals process and sorry, but I don't believe your case will go the same way as the previously mentioned one for the couple from UAE.

 

[Catou]

That was aslo another thing i need to point out, we never told my parents about our relationship, i was never introduced to his parents or family either as his partner.we tried to be as casual as possible if my parents were around or in public. I do have some close friends who knows about our relationship but thats about it,

I don't understand this - you lived for almost two years together, in a committed sexual and emotional relationship, in the same house as your parents but didn't tell your parents? I think a VO officer would find it hard to believe that you were in a common-law relationship.

Even if you marry, CIC wants to know about your relationship and how it developed. They require proof that you are known as a couple and have a committed relationship. Have you seen each other since 2010? If not, you might have a very hard job trying to prove your relationship is genuine, continuing, and not just being used to get him to Canada.

 

[myboss]

In a place where SS relationship is not legally practiced, it is very hard for us to show ourselves as a couple especially on public, thats why we tried to live as casual as possible, i never really confirmed anything to my parents about our status i introduced him as a friend who needs a place to stay when he moved out. I visited him twice since we moved out here in canada. Thats why im wondering if there is no good chance of proving our relationship as common law?, Maybe getting married will let me asponsor him as my spouse.

 

[myboss]

We have a lot of proof such as email FB logs skypes and long distance charge with his number as proof of our continuous relationship since the day we were separated.

 

[clearly]

Honestly, if you guys love each other, it is worth a shot to get married and try. It sounds like you've both been together a long time and you don't want to lose each other. If it doesn't work out, then you will have to move back to be with him it sounds like.