Here is the question, albeit hypothetical at this point and I hope it will ever remain a hypothetical question.
Here is the story.
I am the sponsor. I was sponsored as a spouse myself some 20 years ago. A few years ago, my ex-husband and I left Canada to work in a foreign country (not my home country). While there, our marriage broke down, the ex went back to Canada, I stayed there.
Our marriage took place in my home country, not in Canada.
Since I was not residing in Canada and since I had more connections to my home country at the time and not to Canada (as measured by my frequent visits (about once in every 3 weeks), my citizenship, my birth there, our marriage, and a myriad of relatives of mine), I applied for divorce in my home country.
My ex consented. Divorce was granted.
Fast forward. A year later I am getting married again. In my home country again.
My new spouse and I cohabit in the country where I initially moved to work in with my ex spouse.
3 years later, it was time for me to return to Canada.
And we applied for sponsorship under the family class as a spouse.
The application is in process as we speak.
My second spouse came with me to Canada (on TRV), stayed here for 4 months and is now gone for 2 months but is scheduled to come again in two months.
After reading more and more about recognition of foreign divorces, I am now terrified that my spouse will not be considered a member of family class because my foreign divorce will not be recognized by IRCC and, subsequently, our marriage will not be recognized.
I even hired a lawyer to draft an opinion letter. I still have the draft. The lawyer said I should wait and see what IRCC says first (the lawyer is my regular lawyer, not an immigration lawyer).
I assume that IRCC, if in doubt, will first send me a procedural fairness letter. I will then use the draft letter from the lawyer etc...
But...Question is. What if we are faced with the worst case scenario and our application is refused?
Should we apply as common-law immediately after given that:
1. We cohabited in a third country for almost 3 years (have a rental agreement, kids school bills, country's registration as foreigners at the same address)
2. We then came together to Canada in September 2018 where my spouse stayed until end of January 2019 and left. So we cohabited for 4.5 months (but no proof, other than his entry stamp and return boarding passes. I can ask my teenage child and our neighbors (and perhaps a landlord) write a letter though)
3. Spouse left in January 2019 and will come back to Canada in May 2019 (on TRV) and will stay for 6 months. Once he comes, we can add his name to my bank account.
We will hear yay or nay in about July 2019.
I do plan to task my lawyer with trying to obtain Canadian Court Order recognizing my foreign divorce. But this will take tons of time and could be unsuccessful (who knows. I read tons of case law and it seems very subjective).
I was thinking of applying as common-law right away. But my caveat is lack of proof for Canada's cohabitation, aside from boarding passes, my child's statements, neighbours' letter, landlord's letter (actually, both of our names are on the rental agreement).
My spouse is not eligible for my insurance because he is not PR so I cannot show that (although I should actually ask my HR at work).
Technically, we did live for over 1 year but it was over 1 year ago (provable).
What do you guys think? Or should I have a full-blown court adventure here in Canada to recognize my foreign divorce?
Pros to apply as common-law (from my perspective): we will only have a gap of 4 months of being part out of 4.5 years of the marriage (even though we can only really prove the first 3 years of cohabitation, unless my landlord writes a letter; my child can though, so can our neighbour).
Cons: what if we are refused again...another year will be gone (although by the time I figure out my divorce with CAnadian ex, this same year may go by).
Thank you for reading this long post!
Here is the story.
I am the sponsor. I was sponsored as a spouse myself some 20 years ago. A few years ago, my ex-husband and I left Canada to work in a foreign country (not my home country). While there, our marriage broke down, the ex went back to Canada, I stayed there.
Our marriage took place in my home country, not in Canada.
Since I was not residing in Canada and since I had more connections to my home country at the time and not to Canada (as measured by my frequent visits (about once in every 3 weeks), my citizenship, my birth there, our marriage, and a myriad of relatives of mine), I applied for divorce in my home country.
My ex consented. Divorce was granted.
Fast forward. A year later I am getting married again. In my home country again.
My new spouse and I cohabit in the country where I initially moved to work in with my ex spouse.
3 years later, it was time for me to return to Canada.
And we applied for sponsorship under the family class as a spouse.
The application is in process as we speak.
My second spouse came with me to Canada (on TRV), stayed here for 4 months and is now gone for 2 months but is scheduled to come again in two months.
After reading more and more about recognition of foreign divorces, I am now terrified that my spouse will not be considered a member of family class because my foreign divorce will not be recognized by IRCC and, subsequently, our marriage will not be recognized.
I even hired a lawyer to draft an opinion letter. I still have the draft. The lawyer said I should wait and see what IRCC says first (the lawyer is my regular lawyer, not an immigration lawyer).
I assume that IRCC, if in doubt, will first send me a procedural fairness letter. I will then use the draft letter from the lawyer etc...
But...Question is. What if we are faced with the worst case scenario and our application is refused?
Should we apply as common-law immediately after given that:
1. We cohabited in a third country for almost 3 years (have a rental agreement, kids school bills, country's registration as foreigners at the same address)
2. We then came together to Canada in September 2018 where my spouse stayed until end of January 2019 and left. So we cohabited for 4.5 months (but no proof, other than his entry stamp and return boarding passes. I can ask my teenage child and our neighbors (and perhaps a landlord) write a letter though)
3. Spouse left in January 2019 and will come back to Canada in May 2019 (on TRV) and will stay for 6 months. Once he comes, we can add his name to my bank account.
We will hear yay or nay in about July 2019.
I do plan to task my lawyer with trying to obtain Canadian Court Order recognizing my foreign divorce. But this will take tons of time and could be unsuccessful (who knows. I read tons of case law and it seems very subjective).
I was thinking of applying as common-law right away. But my caveat is lack of proof for Canada's cohabitation, aside from boarding passes, my child's statements, neighbours' letter, landlord's letter (actually, both of our names are on the rental agreement).
My spouse is not eligible for my insurance because he is not PR so I cannot show that (although I should actually ask my HR at work).
Technically, we did live for over 1 year but it was over 1 year ago (provable).
What do you guys think? Or should I have a full-blown court adventure here in Canada to recognize my foreign divorce?
Pros to apply as common-law (from my perspective): we will only have a gap of 4 months of being part out of 4.5 years of the marriage (even though we can only really prove the first 3 years of cohabitation, unless my landlord writes a letter; my child can though, so can our neighbour).
Cons: what if we are refused again...another year will be gone (although by the time I figure out my divorce with CAnadian ex, this same year may go by).
Thank you for reading this long post!
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