Common Law - Absence for short periods of time

[cbrown89]

Hello,

Ive been a member of a seperate forum but they cannot answer my question.

I will be moving to Canada to live with my girlfriend (Canadian citizen) in June/July of this year. I currently work offshore which I intend to continue, whether it be for a Canadian company or UK company. I also hold a LOI through the IEC scheme for this year.

My worry is that although we will be living together in Calgary, with joint bills etc, I will work 1 month on 1 month off. Does this absence "cancel" out my continuous 1 year co inhabitance? Also can you apply for the common law visa if you do not a have a working visa in Canada? I ask because if I was to get an offshore job in the UK then there would be no need for a visa as I would just visit when I was off?

Any help would be great!

 

[Rob_TO]

I will work 1 month on 1 month off. Does this absence "cancel" out my continuous 1 year co inhabitance?

Unfortunately there is no solid answer for this, as much of the definitions when it comes to common-law are not specific and open to interpretation from the VO reviewing the file.

See here: http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf
5.35. What is cohabitation?
“Cohabitation” means “living together.” Two people who are cohabiting have combined their affairs and set up their household together in one dwelling. To be considered common-law partners, they must have cohabited for at least one year. This is the standard definition used across the federal government. It means continuous cohabitation for one year, not intermittent cohabitation adding up to one year. The continuous nature of the cohabitation is a universal understanding based on case law.
While cohabitation means living together continuously, from time to time, one or the other partner may have left the home for work or business travel, family obligations, and so on. The separation must be temporary and short.

So certainly there are allowances in place for travel for work purposes, and "temporary and short" absences during which a couple is not living together, but can still add that time to the 1-year common-law qualifying time.

However do multiple absences of 1 month each break this? It depends how you define "time to time" and "temporary".

The VO processing the file may agree that you've satisfied practically all conditions of common-law by having a truly joint household, and will allow the trips for work.

However they may also decide that during your time working, you have set up a new residence at your workplace for 1 month each time, and are no longer cohabiting with your partner.

Unfortunately there is nobody you can ask this question to at CIC or with an immigration lawyer/consultant and get a definitive answer, since in the end it will come down to the decision of the VO alone and what they think (although perhaps a very good consultant could dig up case histories of previous times this has happened and what the result was). If it was me, I would be very concerned that multiple 1-month absences for work will cause the VO to reject common-law status. In the end, 1 month together-1 month away is only really 6 months of cohabitation vs the required 12, so goes above and beyond the definition of "short" in the guide. My advice would be to take the sure bet and just get married!

Also can you apply for the common law visa if you do not a have a working visa in Canada? I ask because if I was to get an offshore job in the UK then there would be no need for a visa as I would just visit when I was off?

Applying for PR and having a work visa are 2 completely separate things. There is no need to have a working visa to apply for PR.

If you don't feel you can qualify for common-law, and don't want to get married... then perhaps you can apply for PR via some skilled worker class (though I don't know much about this).

 

[cbrown89]

Thanks for the information.

For me marriage to get a visa is not an option.

Is it possible to contact the CIC or would I be wasting my time.

 

[Rob_TO]

Is it possible to contact the CIC or would I be wasting my time.

IMO you would be wasting your time.

People here seem to get different answers on the same question every time they talk to a CIC customer service rep on the phone, and this is for simple questions.

For an open question like yours that will ultimately come down to the feelings of the VO reviewing your file, it really doesn't matter what any CSR tells you on the phone (whether its a yes or no) as they have zero influence on your case, not to mention often the CSRs don't really know what they're talking about.

 

[cbrown89]

Another hurdle I guess would be applying for the common law visa when technically you have no right to be there other than a visitor.

 

[amikety]

Another hurdle I guess would be applying for the common law visa when technically you have no right to be there other than a visitor.

Nope, not a hurdle at all. Lots of people have done it without an issues. It's perfectly legal.

 

[Rob_TO]

Nope, not a hurdle at all. Lots of people have done it without an issues. It's perfectly legal.

Indeed. I would say the vast majority of applicants applying for PR while in Canada... are doing so while here on a visitor visa.

 

[cbrown89]

It would be great if the CIC could just say yes or no!

I will need to investigate further but I can show the case reviewer that I have been with my girlfriend since 2011 and that we lived together for 11 months in our own flat before she has to leave the UK (youth mobility visa expired). There would be 3 month where by I lived in the UK before I move out in June this year.

Surely if you show a joint account, joint bills, hopefully joint lease (unsure if you can rent a flat as a visitor), management of expenses and I will be partially supporting her through university.... then the reviewer will look at it as being common law!

Separate question how long can you spend in Canada as a visitor per year? For example can I visit for 4 weeks six times a year? This would only be an issue if I didnt work offshore for a Canadian company.

 

[Rob_TO]

It would be great if the CIC could just say yes or no!

I will need to investigate further but I can show the case reviewer that I have been with my girlfriend since 2011 and that we lived together for 11 months in our own flat before she has to leave the UK (youth mobility visa expired). There would be 3 month where by I lived in the UK before I move out in June this year.

Surely if you show a joint account, joint bills, hopefully joint lease (unsure if you can rent a flat as a visitor), management of expenses and I will be partially supporting her through university.... then the reviewer will look at it as being common law!

It's too bad you couldn't have come to Canada for just 1 month after her visa expired, since that would have given you 11 months in UK +1 month in Canada = 1 year living together, and you would have established common-law status so it wouldn't even matter about your work situation now.

The decision on common-law is always FACT based. So while living together 11 months is great proof of a genuine relationship in general, it won't help with proving common-law since once you broke the cohabitation the counter got reset to zero.

Joint bills, accounts, lease etc are all great proofs, but by far the #1 most important FACT you need to prove in common-law is cohabiting for 12 continuous months. Going back to the definitions above, it will all depend how how they interpret the rules needed to meet the 12-month eligibility. If the VO is not convinced you meet the 12-months continuous rules based on the basic facts, then it won't matter how many other proofs you have. This is why your case is very difficult.

Separate question how long can you spend in Canada as a visitor per year? For example can I visit for 4 weeks six times a year? This would only be an issue if I didnt work offshore for a Canadian company.

There is no maximum time. Typically with a visa-exempt passport, you get a 6-month visitor stamp in your passport when you arrive in Canada. Towards the end of the 6 months you can apply for a visitor extension, or you can try to exit/re-enter Canada to get the visa reset and a fresh 6 months.

 

[Sweden]

I would agree with the previous posters, and I don't think you will qualify as common-law. Recently a couple go denied common-law because the sponsor was away twice in the course of 12 months - once for 19 days, and once for 14 days. their application was returned because they didn't qualify as common-law. They have been together for a while, have plenty of proofs etc - but their application was returned at the first stage, because they didn't meet the definition of CL. As the others have said - it depends on the individual VO, but I don't think it will work.
Good luck,
Sweden

 

[cbrown89]

I think the common law is a no go.

However, after searching this morning I may apply for the New Federal Skilled Work Program as I would qualify with 2 years experience in a Civil Engineers role all be it in an offshore environment.

Has anybody read into this new program which opens on the 4th of May?

 

[Rob_TO]

Recently a couple go denied common-law because the sponsor was away twice in the course of 12 months - once for 19 days, and once for 14 days. their application was returned because they didn't qualify as common-law.

Wow that is crazy, and seems like the VO was just being a jerk. If the couple followed the guideline of the less than 3 week absence being for school, work or family reasons... there is no reason that should have been refused. Just goes to show you how any VO can interpret the rules differently.

I think the common law is a no go.

However, after searching this morning I may apply for the New Federal Skilled Work Program as I would qualify with 2 years experience in a Civil Engineers role all be it in an offshore environment.

Has anybody read into this new program which opens on the 4th of May?

Best to post this question in the skilled worker part of this forum: http://www.canadavisa.com/canada-immigration-discussion-board/skilled-worker-professional-immigration-b4.0/