Buying an apartment in Canada to meet residency requirements

[Leo2010]

I got my PR card but I have to go back to my country for personal reasons. If I buy an apartment in Canada in my name and rent it out, would that help me with meeting residency requirements? In other words, would the time spent outside Canada count as residency because I own an apartment in Canada?

 

[imigrate]

No, it will not count.

 

[toby]

I agree with Imigrate's short answer.

However, if you were sponsored by a Canadian citizen, and the reason to be out of Canada is t accompany him/her, then you can count the days abroad toward your PR quota of 730 days. However, if your Canadian spouse is accompanying you, if the main reason to be out of Canada is to attend your personal needs, then the days don't count.

And, renting your residence to a third party (arm's length) means you don't have access to a residence in Canada, and is a major criterion for establishing non-residence in Canada for tax-paying purposes.

Sorry.

 

[Leon]

If you own a home in Canada and have your things, furniture and appliances in that home, that may make you a resident of Canada for tax purposes. However, it will not help you meet the PR residency requirements.

It is very simple for PR. You need to spend 730 days in Canada in your first 5 years as a PR and in any rolling 5 year period after that. Any part of a day spent in Canada counts as a day spent in Canada.

Then come the exceptions: Days spent outside Canada working for a Canadian employer may count, for example if you are a truck driver and have to drive to the US all the time, your boss sends you on many business trips or even transfers you to another office in a foreign country. Time spent outside Canada accompanying a Canadian citizen spouse may count, at least if you are accompanying the spouse and not the other way around. If you are under 22, time outside Canada accompanying a Canadian citizen parent may count. You may also be able to count time accompanying a PR spouse or parent as long as they have a legitimate reason for being outside Canada such as having been transferred to another country by their Canadian employer.

Advice for any PR's, keep good records of your trips, keep boarding cards or other things with dates on them. You will need those dates when you apply for your PR card renewal.

 

[matthewc]

However, if you were sponsored by a Canadian citizen, and the reason to be out of Canada is t accompany him/her...

Actually, for the "accompanying a canadian citizen spouse" exception to work, there is no requirement that the spouse have been the PR's sponsor. For example, a skilled worker could immigrate to Canada, then marry (or enter into a common-law relationship with) a Canadian, and then accompany that Canadian overseas. That would count for preserving the PR's PR status.

Matthew

 

[imigrate]

Actually, for the "accompanying a canadian citizen spouse" exception to work, there is no requirement that the spouse have been the PR's sponsor. For example, a skilled worker could immigrate to Canada, then marry (or enter into a common-law relationship with) a Canadian, and then accompany that Canadian overseas. That would count for preserving the PR's PR status.

Matthew

The Canadian spouse does not have to be the PR's sponsor. The issue here is PR has to be accompanying Canadian citizen, and not Canadian citizen accompanying PR.

So for example: PR holder found a job outside Canada, and the Canadian spouse follows, it would be considered Canadian accompanying PR and this may not be counted towards maintaining PR status.

 

[toby]

That's correct, Imigrate. There are a number of court cases that turned on this very point -- the PR must accompany the Canadian and not vice-versa.

It's a bit unsettling for people in my situation, where I'd prefer to be exploring investment opportunities in China for the next few years, but must be in Canada (or at least my PR wife must be) almost 5 months a year to meet the PR quota. The ideal situation would be to spend 3-4months per year in Canada, deal with these opportunities in CHina, then settle full-time in Canada in year 5. But unless I can use the "accompany" exception, my wife would not meet her PR quota that way.

I don't have a job or any other objective reason to be in China, just my desire to be there, and my wife has family in China, so it might well be debatable to an Immigration Officer whether my wife was accompanying me, or I (the Canadian ) was accompanying my wife (in which case the days abroad don't count toward the quota). If challenged by an Immigration Officer, we'd have to demonstrate her being compliant with the quota, which would take about a year and require her to stay in Canada until resolution. Very inconvenient. Very uncertain.

 

[jenroof]

That is it, you don't have to own an apartment, it is not valid. Anyway, you should go to the embassy and ask them what is a best way to do with your quota.

 

[matthewc]

Sorry, imigrate and toby, you're both incorrect.

Unlike the former Immigration Act, IRPA does not assess intent of a PR, only actions, and a number of appeals to the Immigration Appeals Division have determined that "accompanying" is to be interpreted in the broadest sense, "being with", rather than the narrower "going with". Who is "going with" whom doesn't make any difference, only the fact that the PR and Canadian citizen spouse are together - that alone is sufficient to preserve the PR's status.

I had exactly this discussion on another forum recently, and looked extensively through IAD decisions on the issue.

PMM recalled seeing a decision to the contrary, but I couldn't find it. If you can, please post it as I'd be interested to read it.

 

[toby]

A few points, Matthewc.

In general, if you were right I’d agree with you! ;D But I can’t – at least not until there is more evidence on the table.

The issue (for those who haven’t been following this closely) is this. When a PR is abroad with his/her Canadian spouse, can he/she count those days toward the 730-day quota? The Law states that the PR can count those days if he/she accompanies the Canadian spouse. But what constitutes “accompany”? Does it mean the spouse must have the primary reason for being abroad, and the PR is abroad because of the spouse? Or can “accompany “simply mean that as long as the two are together, abroad, the PR can count those days?

Mathewc believes the latter; I believe the former. Here come the specific points.

1) First, this is a rather subtle legal issue, and professional lawyers have found it necessary to go to court to settle their differing interpretations of the Law. So everyone reading this should take our arguments with a grain of salt.

For every court case, there was a border officer who challenged the PR, an Immigration Officer who concluded that the PR had not met the 730-day quota, and an appeal(court case). My preliminary advice is to try to avoid this morass of challenge, proof, appeal, time delay, and cost -- if at all possible. That is to say, try to avoid relying on the “accompany” clause if one can; spend 730 days in Canada.

2) Second, Mathewc, you say you haven’t found the court case that PMM referred to. Until you do, you aren’t on solid ground to judge the matter validly, and to accept or dismiss another's view is premature. You may be correct, on further analysis, but not on the evidence presented so far.

3) Third, there is a danger to advising a relaxed interpretation of the “accompany” exception to the 730-day quota. You might (inadvertently) encourage PRs to rely on your liberal (and so far unproven) interpretation. If your view is wrong, they might find themselves in default of the 730-day quota, and out of luck.

But enough of the cautions and caveats. Let’s do play “amateur lawyer” and look at the cases. You’re right that many don’t turn exclusively on the meaning of “accompany”; other considerations are included in the judgments -- which confuses the issue for us.

Nevertheless, I found the following case which focuses closely on the issue of “accompany”, and I present some relevant abstracts here. I have underlined and italicized the salient parts, but I hope you’ll go to the case itself, and test my interpretation.

Smith v. Canada (Citizenship and Immigration), 2007 CanLII 67256 (I.R.B.)
[5] The appellant was born in Germany on November 21, 1959, and is a citizen of that country. She became a permanent resident of Canada on June 9, 1967, when she was landed as a seven-year-old accompanying her parents. She remained in Canada for less than three years and then moved to the United States, at the age of ten, with her parents, when her father was transferred by the company he worked for from Mississauga, Ontario, to the Cleveland area in Ohio.
7] In April 1991, the appellant met David Strickland, a citizen of Canada, born in St. John’s, Newfoundland. He worked as a long-distance truck driver. By 1993/1994, their relationship became more serious. They began to see one another more frequently. The appellant gave him a key to her house; he stopped smoking at her urging and they put the money saved into a joint bank account for taking holidays together; and he assumed a parental role in raising the appellant’s daughter, Ashley.
[10] Both the appellant and Mr. Strickland testified that he spent about 70 per cent of his time in the United States between living with the appellant and being on the road. The other 30 per cent of his time he spent in Canada, where he maintained a residence. Mr. Strickland organized his life to spend as much time as possible with the appellant in the United States. From 1996 to 2006 he lived between Ohio and Ontario spending the majority of his time in the United States. Throughout this time period, Mr. Strickland also maintained a residence in Ajax, Ontario. He had his office there and lived there when he was in Canada. The appellant visited him in Canada about one weekend per month.
7] The appellant contested the immigration officer’s determination that she had not complied with the residency obligation under section 28 of IRPA in both law and equity.
Decision
[18] The panel concludes that the immigration officer’s determination is valid in law. However, the panel finds that, taking into account the best interests of a child directly affected by this decision, there are sufficient humanitarian and compassionate considerations to warrant special relief in all the circumstances of this case. The appeal is allowed.
[Note that in Law she had not met the quota, despite her claim that she was accompanying her Canadian husband. Her appeal was granted on other grounds.]
[28] Where the panel does not accept counsel’s argument is around the phrase “outside Canada accompanying a Canadian citizen”. Subparagraph 28(2)(a)(ii) requires that a permanent resident accompany a Canadian citizen outside Canada. The panel is of the view that the common-law relationship in this case involved a Canadian citizen accompanying a permanent resident outside Canada, not vice versa.
30] When the appellant and Mr. Strickland became romantically involved, it was Mr. Strickland, the Canadian citizen, who chose to alter the pattern of his life to spend as much time as possible in the United States with the appellant, the permanent resident.

[31] In the panel’s estimation, Mr. Strickland accompanied the appellant. The appellant did not accompany Mr. Strickland as envisaged by subparagraph 28(2)(a)(ii). They were in one another’s company, but, that in the panel’s opinion that is a different concept from the appellant accompanying Mr. Strickland in the United States.
[Note: this is as close to the nub of the issue as we can come, and I think this at least casts serious doubt on any assurance that the two (PR and Canadian ) need only be together abroad for the days to count toward the quota.]
[32] The panel would draw the analogy of the concept of an accompanying or non-accompanying dependent. Accompanying means to go with.

[33] This is further confirmed by the primary definition of “accompanying” in both the Concise Oxford Dictionary,[3] which includes “go with”, and the Gage Canadian Dictionary[4] which includes “go along with”.

[34] The panel is satisfied that the appellant did not go with or accompany David Strickland to the United States. Consequently, she is not a permanent resident of Canada on the basis that she has been outside Canada accompanying a Canadian citizen who is her common-law partner as intended by subparagraph 28(2)(a)(ii) of IRPA.

[35] In the panel’s view, the scheme of IRPA, in a fact situation such as this case presents, suggests that a Canadian citizen, in a legitimate common-law relationship with a Green Card holder in the United States, should sponsor that person to Canada and not rely on subparagraph 28(2)(a)(ii).

 

[matthewc]

In general, if you were right I'd agree with you! ;D But I can't – at least not until there is more evidence on the table.

Did you read the cases I posted in that other thread?

1. Abraham v. Canada
2. Ahmed vs. Canada
3. Li vs. Canada

Mathewc believes the latter; I believe the former.

I'd like to think it was an opinion based on everything I'd read, rather than a belief. If you read that thread I linked to, you'll notice that I actually held the same opinion as you prior to reading those cases. Now I hold a third opinion, but we'll get to that.

1) First, this is a rather subtle legal issue, and professional lawyers have found it necessary to go to court to settle their differing interpretations of the Law. So everyone reading this should take our arguments with a grain of salt.

For every court case, there was a border officer who challenged the PR, an Immigration Officer who concluded that the PR had not met the 730-day quota, and an appeal(court case). My preliminary advice is to try to avoid this morass of challenge, proof, appeal, time delay, and cost -- if at all possible. That is to say, try to avoid relying on the “accompany” clause if one can; spend 730 days in Canada.

As for the advice, I couldn't agree with you more. Want to stay a PR? Stay in Canada if at all possible. If you absolutely have no choice but to take advantage of one of the exemptions, make sure you know exactly what the exemption is first, and keep a file of "proof" to show you qualify for the exemption when you re-enter Canada.

2) Second, Mathewc, you say you haven't found the court case that PMM referred to. Until you do, you aren't on solid ground to judge the matter validly, and to accept or dismiss another's view is premature. You may be correct, on further analysis, but not on the evidence presented so far.

PMM didn't have the reference either, but I think you found it, or at least something very similar.

3) Third, there is a danger to advising a relaxed interpretation of the “accompany” exception to the 730-day quota. You might (inadvertently) encourage PRs to rely on your liberal (and so far unproven) interpretation. If your view is wrong, they might find themselves in default of the 730-day quota, and out of luck.

I don't think "unproven" is quite fair, as the implication is that my opinion wasn't based on anything relevant. My opinion was based on those three precedents from IAD, and having seen nothing to the contrary.

But enough of the cautions and caveats. Let's do play “amateur lawyer” and look at the cases. You're right that many don't turn exclusively on the meaning of “accompany”; other considerations are included in the judgments -- which confuses the issue for us.

Those three cases do turn on the meaning of "accompany".

Nevertheless, I found the following case which focuses closely on the issue of “accompany”, and I present some relevant abstracts here. I have underlined and italicized the salient parts, but I hope you'll go to the case itself, and test my interpretation.

...

I definitely agree with you that - in Smith - the panel took the exact opposite view to those other cases. For example:

(It is worth reading the full cases, to get an overview.)

ABRAHAM

[13] For all these reasons, I interpret “accompanying” in section 28(2)(ii) of IRPA to have its plain dictionary meaning. As this meaning includes coexisting and as I find that the appellant was coexisting with his Canadian citizen spouse in Dubai after March 2001, I find that the appellant was “accompanying” his Canadian citizen spouse in Dubai after March 2001.

AHMED

The panel reviewed subparagraph 28(2)(a)(ii). It concludes that the visa officer erred in finding that as the appellant’s spouse, as the Canadian citizen, was a dependent of the appellant, rather than the appellant being a dependent of the Canadian citizen, that the section does not apply. The panel finds that on the plain reading of this provision, there is no such requirement. The provision merely requires that the permanent resident accompany a Canadian citizen.

LI

[5] I have looked at two former decisions of this Tribunal which considered this issue. While these decisions are not binding upon me, I consider them to be indicative of the manner in which this Tribunal has interpreted subsection 28(2) of the Act previously.[4] In Mkdsi and Abraham the panels held that the word “accompanying” is to be interpreted according to the common sense and ordinary meaning of the word which includes to “coexist” or “coexisting”.[5] There was no suggestion that the appellant and his wife were not living together in China during the relevant period. Therefore I conclude that the appellant was accompanying his wife. His wife worked for a Canadian company as of November 2005 until she became a Canadian citizen in late December 2006. That adds sufficient additional days for the appellant to maintain his permanent resident status. On the basis of that evidence I find that the appellant has met the residency requirements imposed under section 28 of the Act and the refusal to issue a travel document was not valid in law.

But then in SMITH:

[28] Where the panel does not accept counsel’s argument is around the phrase “outside Canada accompanying a Canadian citizen”. Subparagraph 28(2)(a)(ii) requires that a permanent resident accompany a Canadian citizen outside Canada. The panel is of the view that the common-law relationship in this case involved a Canadian citizen accompanying a permanent resident outside Canada, not vice versa.

[31] In the panel’s estimation, Mr. Strickland accompanied the appellant. The appellant did not accompany Mr. Strickland as envisaged by subparagraph 28(2)(a)(ii). They were in one another’s company, but, that in the panel’s opinion that is a different concept from the appellant accompanying Mr. Strickland in the United States.

[33] This is further confirmed by the primary definition of “accompanying” in both the Concise Oxford Dictionary,[3] which includes “go with”, and the Gage Canadian Dictionary[4] which includes “go along with”.

[34] The panel is satisfied that the appellant did not go with or accompany David Strickland to the United States. Consequently, she is not a permanent resident of Canada on the basis that she has been outside Canada accompanying a Canadian citizen who is her common-law partner as intended by subparagraph 28(2)(a)(ii) of IRPA.

So there we have it - there are clearly conflicting decisions from IAD.

My opinion now (and I thank you for sharing the Smith decision as it's quite significant) is that because there is disagreement over the definition of "accompany" at the appeals level, it isn't completely safe to rely on 28(2)(a)(ii) unless you are certain your circumstances meet both definitions.

One thing I will say, is that because the Smith appeal was approved on H&C, there was no incentive for the appellant to test the validity of the panel's finding that the original decision was valid in law with a judicial review. This is exactly the kind of question of general interest where a judicial review would be appropriate, since there are conflicting findings from appeals. Maybe this has happened, but not that I can find. Unless someone is refused on appeal on exactly this point (and the appeal is not allowed on H&C) it's unlikely to be tested further.

(The H&C consideration is interesting in that it allows decisions that might be considered "bad" to remain unchallenged or tested by judicial review, simply because the applicant got the outcome they wanted.)

 

[toby]

Matthew said:
As for the advice, I couldn't agree with you more. Want to stay a PR? Stay in Canada if at all possible. If you absolutely have no choice but to take advantage of one of the exemptions, make sure you know exactly what the exemption is first, and keep a file of "proof" to show you qualify for the exemption when you re-enter Canada.

My comment:
And even then, if you’ve done everything “by the book”, if you want to convince the border officer on the spot – carry transcripts of the court decisions with you, with the important parts highlighted.

(You know, I was taught in civics class that one difference between a totalitarian regime and a democracy was that in a democracy one knows what the rules are, that rule of law rather than arbitrary bureaucrats rule society. This does not seem to be so in immigration matters in Canada. A lot depends on the subjective judgment of the border officer, and even the courts have – as Matthew has demonstrated – given contradictory decisions. So you just never know, and the less you leave to their discretion, the better. )


Matthew said:
I don't think "unproven" is quite fair, as the implication is that my opinion wasn't based on anything relevant. My opinion was based on those three precedents from IAD, and having seen nothing to the contrary.

My comment:
Good point. I’ll withdraw my “unproven” if you’ll withdraw your “you are wrong”. It appears – in light of the panels’ contradictory decisions – that we’re both right, or wrong.

So what do we all take from this discussion? Be very careful when relying on exceptions, have lots of documentation, and -- at the end of the day -- be prepared for disappointment because it all comes down to an arbitrary decision by some bureaucrat. Kind of makes me yearn for my own desert island!

 

[toby]

And as a final comment on this topic, Matthew, kudos on the rigor of your analysis in the other thread.

 

[matthewc]

As was pointed out to me in the other thread, R61(4) does actually define "accompanying" very clearly, and would make it appear that the Smith decision was erroneous.

"Accompanying outside Canada

(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."

That does actually seem to settle the matter in terms of what the law says. Admittedly the Smith decision goes against that. What I don't understand, is why that regulation (in place since 2002) isn't referenced in any of the IAD decisions on the issue.

Anyway, I do agree on the point of arbitrary bureaucrats - I've certainly heard plenty of examples of bad decisions.

 

[toby]

Thanks for the reference, Matthew.

Matthew:

Where can I get the original of R61(4), please?

And for all PRs who find they must rely on the exception of accompanying a Canadian citizen abroad to meet their PR quota, I'd look up and print out the two following references:

1) R61(4) once Matthew tells us where to find it; and

2) the Li decision, at:
http://www.canlii.org/eliisa/highlight.do?text=Li+v.+Canada+%28citizenship+and+Immigration%29%2C+2009+CanLII+74606&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/irb/doc/2009/2009canlii74606/2009canlii74606.html

(You might have to copy the URL and paste it into your browser, rather than simply click on the URL.)

Heh heh, imagine the consternation of the border officer who wants to deny PR status to an entering PR, when the PR then takes out the full transcript of the Li decision, with appropriate text highlighted!! I'd love to witness that confrontation.