Common-Law partner for Study Permit - Unable to Continuously Cohabit due to COVID-19

[soogwoog]

Hello everyone,

I've had a bit of a search through the forum but didn't find a thread that quite touched on our current situation.

The context;
My partner is from Mexico and I am from Australia, and we have been together for just over a year. We initially met in Australia and began to cohabit at the end of 2019. In March of 2020 (prior to border restrictions), my partner returned to Mexico to see her mother who had been ill. Unfortunately, shortly afterward, COVID took hold and we were unable to travel see each other. In late 2020, I was able to obtain a travel exemption from the Australian government to come to Mexico to be with her in January of 2021 - I did so, and we have been cohabiting since I arrived. All of this is pretty well documented.

My partner and I are now planning on moving to Canada, initially on a study permit for my partner who wishes to pursue postgraduate studies in Canada, and with a view to making an Express Entry application for permanent residency later in the year (with myself as the primary applicant). We have been busy filling forms, and are now at the stage where we would ordinarily be declaring ourselves as a common law union on form IMM 5409.

The question;
Under the circumstances, would we be able to proceed with an application as common-law partners - and if so, how would we go about representing the reality that we were unable to continuously cohabit for a year on the forms provided, but have been in a conjugal partnership in that time (e.g., shared bank accounts, shared payments, cohabitation resumed as soon as possible)?

 

[scylla]

Hello everyone,

I've had a bit of a search through the forum but didn't find a thread that quite touched on our current situation.

The context;
My partner is from Mexico and I am from Australia, and we have been together for just over a year. We initially met in Australia and began to cohabit at the end of 2019. In March of 2020 (prior to border restrictions), my partner returned to Mexico to see her mother who had been ill. Unfortunately, shortly afterward, COVID took hold and we were unable to travel see each other. In late 2020, I was able to obtain a travel exemption from the Australian government to come to Mexico to be with her in January of 2021 - I did so, and we have been cohabiting since I arrived. All of this is pretty well documented.

My partner and I are now planning on moving to Canada, initially on a study permit for my partner who wishes to pursue postgraduate studies in Canada, and with a view to making an Express Entry application for permanent residency later in the year (with myself as the primary applicant). We have been busy filling forms, and are now at the stage where we would ordinarily be declaring ourselves as a common law union on form IMM 5409.

The question;
Under the circumstances, would we be able to proceed with an application as common-law partners - and if so, how would we go about representing the reality that we were unable to continuously cohabit for a year on the forms provided, but have been in a conjugal partnership in that time (e.g., shared bank accounts, shared payments, cohabitation resumed as soon as possible)?

Short answer is no - you unfortunately cannot proceed.

The full year of continuous cohabitation is mandatory for IRCC to consider you as common law. You must physically live at the same address together for at least one full year to qualify. Unfortunately you don't meet this requirement and IRCC will say you do not fall under this definition and can't benefit from it (regardless of the reason for that).

Your options are: (1) get married; (2) defer your travel until such a time as you meet the common law definition; (3) have your partner qualify to travel to Canada independently (i.e. under their own study permit and not as your dependent).

 

[soogwoog]

Short answer is no - you unfortunately cannot proceed.

The full year of continuous cohabitation is mandatory for IRCC to consider you as common law. You must physically live at the same address together for at least one full year to qualify. Unfortunately you don't meet this requirement and IRCC will say you do not fall under this definition and can't benefit from it (regardless of the reason for that).

Your options are: (1) get married; (2) defer your travel until such a time as you meet the common law definition; (3) have your partner qualify to travel to Canada independently (i.e. under their own study permit and not as your dependent).

We really appreciate your quick response! For additional context, we have also submitted an application to register our relationship in Australia (de facto) which is currently processing. Once that is made official, do you think this would allow us satisfy the requirements of (1) - or would this not be recognised by Canada?

 

[scylla]

We really appreciate your quick response! For additional context, we have also submitted an application to register our relationship in Australia (de facto) which is currently processing. Once that is made official, do you think this would allow us satisfy the requirements of (1) - or would this not be recognised by Canada?

No, this won't help you.

IRCC requires that you demonstrate one year of continuous cohabitation. That's the definition of common law for Canadian immigration purposes. You don't have that.

 

[soogwoog]

No, this won't help you.

IRCC requires that you demonstrate one year of continuous cohabitation. That's the definition of common law for Canadian immigration purposes. You don't have that.

Fair enough! Thank you again. We'd been hoping it'd hold similar weight to a marriage certificate! Do you know if there are provisions to allow us to "join on" as dependents later on (e.g. if I were to initiate an Express Entry application now as an individual)? At the moment we are imagining that it would instead become a traditional partner sponsorship as a permanent resident (with the associated longer waiting time), and that it'd be therefore worth waiting until we are married or qualify with 12 months of cohabitation in order to make the application.

 

[scylla]

Fair enough! Thank you again. We'd been hoping it'd hold similar weight to a marriage certificate! Do you know if there are provisions to allow us to "join on" as dependents later on (e.g. if I were to initiate an Express Entry application now as an individual)? At the moment we are imagining that it would instead become a traditional partner sponsorship as a permanent resident (with the associated longer waiting time), and that it'd be therefore worth waiting until we are married or qualify with 12 months of cohabitation in order to make the application.

I'm not clear what you're asking.

If you are asking if someone can apply under EE as a single person and then before processing of the application is complete, add a common law partner or spouse - the answer is yes.

 

[soogwoog]

I'm not clear what you're asking.

If you are asking if someone can apply under EE as a single person and then before processing of the application is complete, add a common law partner or spouse - the answer is yes.

Thank you for replying, again! Sorry for the lack of clarity; that was essentially the question, yes - I did phrase it poorly! The second part I'd be curious about is whether a spouse/partner is eligible for a work permit to support someone on a study permit after they have already obtained it (e.g. obtain the study permit as an individual, and then the dependent applies for the work permit later on )?