Rob_TO said:
dpenabill, can you show any cases from CanLII or other sources, that show any actual situations where CIC has tried to ban someone from sponsorship just due to being conjugal, and not legally common-law or married at the time of landing?
Yes. See the
Cai case, for example, which illustrates the contrast between the broad lens sometimes used by CIC versus the Federal Court, which allowed leave to appeal and sent the matter back for a redetermination for CIC to examine if the relationship prior to the sponsor's landing was one in which, at the relevant time (that is prior to the landing), the sponsor shared a “mutual commitment to a shared life” and “enjoyed a permanent long-term relationship” . . . " with the sponsored partner.
There are other cases, but they tend to be like that regarding the Krauchankas (appearing in both an IAD and a Federal Court decision) in which the facts are contested and what ultimately determines the outcome depends on what CIC (and then the IAD) determines the facts to be. For the Krauchankas, for example, the sponsor asserted that the relationship prior to becoming a PR "did not amount to cohabitation." CIC and the IAD, however, determined otherwise (while the underlying facts are minimally revealed in the decisions, it appears that CIC relied extensively on admissions made by the sponsored partner in an interview).
Among one of the more salient cases brought up in forum discussions, was that in which a couple ran into a problem with this had been boarding in the same dormitory for foreign workers, but were not actually living together in that dormitory, and indeed the dormitory required gender separation . . . most who responded to their queries, including me as I recall, suggested they obtain and submit (in their appeal from the denial of the sponsored PR application) statements from the employer, on the employer's letterhead, describing the dormitory as such, as an accomodation for foreign workers in separate rooms, and the policy of not allowing mixed gender sharing of rooms, to further document their own statements to that same effect, to prove that while they had developed a very close relationship while there (they met there after the PR already had the Canadian PR application in process), and had the same "address" during that period of time, they were not "cohabitating," that they had not established a common household. I do not recall seeing any follow-up report from this couple, that is as to whether or not the appeal was successful.
Beyond that, though, I do not understand what you mean by "legally common-law," since by definition a common-law relationship is
de facto, not
de jure, and generally the legality of the relationship is irrelevant.
Remember, CIC recognizes the existence of a common-law relationship based on
facts NOT law (again, common-law is a
de facto marriage not a "legal" marriage, not a "marriage in law"). Note, in particular, very often CIC will recognize a common-law relationship even though common-law relationships are
NOT even legally allowed, let alone recognized, in the jurisdiction where the sponsor and sponsored partner lived together.
In any event, for this issue, the point of the
heads-up is that if a couple was in a conjugal relationship prior to the sponsor landing, there is a
risk CIC will take notice and focus on ascertaining whether there was a relationship which should have been disclosed prior to landing. For couples who clearly did not live together, it is an easy call, no problem. For many, however, it is often not so clear, not so obvious. And that is where the role of CIC comes in, a total stranger bureaucrat looking at all the facts and circumstances and making inferences, drawing conclusions. In the foreign worker dormitory case, for example, they had diligently detailed the extent to which they were in a committed relationship in order to show the relationship was genuine, overlooking the possibility that CIC would consider that level of commitment in conjunction with other facts and circumstances to conclude they were in a relationship the sponsor was required to disclose.
Note that in a number of cases the conjugal nature of the relationship, prior to the sponsor landing, is indicated, or
comes-to-light one might say, due to a child born of the relationship; other times it is the concurrence of residential addresses; but of course the range of contexts which indicate a committed relationship varies as much as the lives of people all over the world vary, as in greatly.
Otherwise, as I have already stated:
dpenabill said:
Overall: I doubt CIC approaches this issue looking for grounds to deny legitimate couples. My observations should not be interpreted to be alarmist just because there was a relationship already well in progress before the first of the couple landed as a PR. My observation is a heads-up. A caution to be aware of the potential pitfall of going a bit overboard in showing how long and committed the couple have been in a relationship.
The tipping point is probably nebulous, if not impossible to define: if CIC perceives there was a deliberate plan along the lines of you-go-first-and-sponsor-me-later, that could dramatically affect how CIC weighs the evidence, draws inferences, and makes conclusions.
Regarding the last observation just quoted, the older cases (many in 2005, 2006) tend to focus on whether there was a
deliberate choice to deceive or conceal. The jurisprudence eventually clearly went in the direction that intent was irrelevant, it did not matter if the sponsor was deliberately attempting to deceive or conceal, what matters is whether the sponsored person was in a relationship with the sponsor that was required to be disclosed and was not disclosed. This goes to the point that even a child who a sponsoring father did not know had been born is precluded by regulation section 117(9)(d).
That said, it is apparent that what is likely to tip the scales, in terms of how deep and far CIC goes digging, how negatively CIC interprets the facts and makes inferences, can depend a lot on whether, as I noted, CIC perceives there was a deliberate plan along the lines of
you-go-first-and-sponsor-me-later.
By the way im single when my FSw pr was approved wayback January 2012 and married august 2012 and had son by aug. 2013. Can I apply a Tourist Visa and PR at the same time for them?