There are administrative law decisions (IAD decisions,
Diouf and progeny in particular; no Fed Court decisions however) supporting your observation, and a real risk (though likely a small risk in the OP's situation) of officers and other decision makers applying that version of what constitutes "
accompanying."
However, pursuant to the applicable regulation,
Regulation 61(4) IRPR, and IRCC's operational guidelines (see Section 7.5 in ENF 23), as applied in many IAD decisions (albeit reluctantly some IAD panels explicitly say), a PR is "
accompanying" their spouse "
on each day" the PR "
is ordinarily residing with" their spouse. So,
technically, given that he was living with his spouse in the states,
@TMELL was accompanying his citizen spouse.
But, as you also state, there is a lot of inconsistency in how this credit is interpreted and applied in practice (especially in visa offices handling PR TD applications), so your observations are well taken and yeah, again, there is a risk (but, again, it is a small risk) that approach might be applied to
@TMELL . . . a small risk even in response to a PR card application.
@TMELL can reduce that risk considerably the longer he is settled and staying in Canada, and eliminate that risk altogether if he can wait to apply for a PR card only when he is in RO compliance based on days physically present in Canada. It is probably unnecessary to wait anywhere near that long to proceed with a PR card application, particularly if
@TMELL can avoid international travel for several months and wait to apply for a new PR card when the family's settlement in Canada is well established.
I have recently updated my research in regards to this subject and will further address this, what constitutes accompanying, and another element in play you reference, the influence the availability of being re-sponsored has (this can and has gone both ways, but in most cases this actually has been given negative weight in the H&C assessment), in the topic
Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE.
It has taken almost the full five years to get settled here in Canada, as we just moved here in September. At this point my PR card expires this month and I have accumulated only approximately 90 days physical presence in Canada. However, I have lived for the past five years, and actually many more, with my Canadian wife in the U.S. She has been employed there and I have been retired throughout that time, so I assume the "who is accompanying whom" question is at least not an issue. So, my question: do you think it will be okay with IRCC when I claim that I have fulfilled my RO when almost all of those days are counted from my days accompanying my Canadian spouse in the U.S.?
I do not disagree much with the observations by
@Buletruck and I overtly agree with
@canuck78 that it would be a good idea to wait longer before you make a PR card application.
In particular, I concur to the extent there is
some risk involved if you make a PR card application relying on RO credit for days accompanying your spouse. So it makes sense to wait awhile to apply for a PR card since continuing to have PR status does not depend on having a valid PR card (that is, PR status stays OK even though the PR does not have a valid PR card; so there is no need renew the PR card, at least not in regards to maintaining your status as a PR), and the longer you have been living here in Canada before there is a RO examination the lower the risk of running into a problem with getting the accompanying-citizen-spouse RO credit. Given all that, waiting makes good sense, as long as you can wait.
So it's an easy decision, just wait longer,
as long as you can do that.
. . . but that comes with a big caveat: NO international travel in the meantime.
Even if you can travel without a valid PR card, that is if the passport you carry will allow you to travel and return to Canada without a valid PR card (meaning you either have a U.S. passport or a passport that allows you to travel through the U.S. so you can go to a land border crossing into Canada), even then it will nonetheless be prudent to
NOT travel internationally, not even to the U.S.,
not without a valid PR card to present when returning to Canada, (not until you are unquestionably in RO compliance or have a valid PR card).
In particular, if you are traveling without a valid PR card there is a substantial risk of elevated scrutiny at the Port-of-Entry when returning to Canada, to verify your PR status, and there is at least a significant risk that could lead, potentially, to a negative assessment of your RO compliance.
To be clear, however, the risks of running into a RO compliance problem at a PoE are probably relatively low given your situation (that you are now settled in Canada and have a solid history of residing together with your spouse). Odds are, if asked questions about RO compliance, it goes OK when you explain you were residing with your Canadian citizen spouse in the U.S. before returning to Canada to stay.
But, again, there is
some risk the officers you encounter at the border apply the more strict approach and that leads to a problem.
Additionally, that risk is significantly higher than the risk a PR card application will trigger a problem (again, in your particular situation).
So, if you have a compelling need to travel, that would be a big factor weighing in favour of making a PR card application sooner. That is, if you need to travel that might be a reason to take the risk (probably a low risk) the PR card application runs into a RO compliance problem to avoid the bigger risk (not a high risk, but more of a risk) that a PoE examination into RO compliance leads to a potentially negative decision.
Which brings up the nature and scope of the risk that a PR card application might result in a problematic RO assessment for a PR relying on RO credit for days accompanying their citizen spouse if there is a potential who-accompanied-whom issue, or circumstances in which it could be questioned whether either accompanied the other. How this can go varies considerably depending on the particular facts in the specific individual's case.
As I said, I concur there is "
some" risk
your claim to RO credit for days accompanying your spouse could be questioned, even denied. So if you can wait, it would be prudent to do that and avoid that risk, even though it is probably a low risk.
In particular, there should be a relatively small risk, that is the odds are good it will be OK to make the PR card application if you are in fact settled here now and you make a PR card application including the supporting documentation as described for "
Situation B. Accompanying a Canadian citizen outside Canada" in
the appendix for the instruction guide.
Why I say the risk is low, that the odds are good a PR card application will be OK, no problem getting RO credit for days accompanying your spouse in the U.S., is a complex subject.
I plan to explain further but I will do that in the topic which has covered this issue in detail (with citation and links to official and authoritative sources) for more than the last seven years. So, if you are interested in why the risk is low in your situation, or otherwise learning more about this subject, see the topic
Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE and, in particular, the update I plan to post there.
Meanwhile, in your situation you have the safety net of being re-sponsored in case you lost PR status. That reduces what is at stake considerably (a lot of inconvenience but ultimately you can still be a PR).
