Common-Law Sponsorship worries!!!

[sophie100]

Hi, I'm new to this forum but just wanted to get some 'peace of mind'...

Here's my story:
I met my Canadian fiancee almost 2 years ago when some friends of mine moved to his hometown. I took the plunge and came out here in Feb 2009 for 6 months to see how we got on, I had a work permit organised but didn't want to send it till I was sure. In May 2009 my work permit was sent off (through Bunac) and I flew home in July to pick it up.
I've been working ever since and my relationship with my fiancee is going fantastically well, best decision I've ever made and have never looked back.
We submitted my PR/Sponsorship application last week to the Vegreville Office, as we are applying Inland. I'm confident I enclosed everything (Xmas cards to both of us from both sides of the family, joint bills/banking/purchases, photos).

My concerns are:
1.The photos I submitted aren't really from trips (holidays), I'm not allowed to leave the country on my WP and he doesn't have a passport yet. I just sent everyday photos like fishing, horseriding trips, photos from last Xmas. Will they look at that and wonder why we haven't been on a 'real' trip?? I did explain the whole passport thing, and that he changed jobs so right now, a holiday is bottom of the list.

2. I am 24 and my fiancee is 37, neither of us have been married but would the age gap affect their decision?

3. My fiancee has an ex girlfriend (not common-law, just casual), she had a child and at the time she told him it was his and that she wanted to entrap him into living with her full time. She was an alcoholic and my fiancee used to help her out with her rent and stuff. She then decided she didn't want him around anymore (was getting money from somewhere else - never worked a day in her life so who knows where the money was coming from.) My fiancee wanted to arrange visitation and child support but she wasn't interested, she said he has no reason to be around as the child is not his. Will Immigration look into this? There's no proof right now whether the child is his or not, he has a different surname and for whatever reason the mother didn't want to go to court, nor does she want his money.

I'm worrying about everything right now, I want to continue making a life with my fiancee, we're going to buy a house this year and then we plan to get married next year (need to give my family time to save up to attend the wedding). I don't care how long it takes to get PR, I know Outland is quicker but I would wait 5yrs if it meant I could continue to live with my fiancee. We spent 2 weeks apart last year and I hated every minute of it. I just pray to God that the age difference doesn't affect it (so what if I like older men, it legal and perfectly normal!!) and I hope with all my heart we can stay together forever.

 

[iarblue]

Well your app looks good as for the child i wouldnt say anything if she says its not his and she wants nothing to do with him and it has a different surname chances are its not even his.I would not mention nothing about the ex girlfriend or the child.Its not his.(trust me if it was his,his ex would be all over him for money)especially since she has none.

 

[sophie100]

Thank you!! I'm so worried about it. I was just reading another forum and saw some scary things about age gaps. Also someone wrote that you should include pictures of everyday things, even eating out. Well, that's pretty embarassing to pull a camera out in a restaurant! haha!

We want to buy a house this year, I'm thinking I can just send in the paperwork for the house and write the date I sent in my original app along with my client number, hopefully they'll match it up!! We're also going to visit my Fiancee's parents next month so maybe I can send pics of that in too. I did send Xmas greeting cards that were sent to us from both sides of the family to prove our relationship is known to them. And we got written declarations from friends too.

I didn't mention the child, they didn't ask on the applications either.

When did you submit an application??

 

[iarblue]

Dont worry about the age gap it is fine my wife is 25 im 40 but i dont look it.It has never been an issue.
What ever you do for proof or other they just want to see you both in a regular enviorment,so yes if its a picture of you having dinner then so be it.And if you send in proof after you applied it will just go in the file as additional proof.

 

[angelbrat]

There is a 14 year age gap between myself and my partner. This did not cause any problem.

As your partner is the 'so called' father of the child it really will have no bearing on your case, CIC are interested in YOUR dependents, not a current Canadian citizen, which the child is.

Option C printout will also state that your partner is single.

Taking 'proper trips'?.....I doubt CIC expect you to take holidays to Barbados every six months LOL....you will be fine with pictures of your every day life, in fact I am sure CIC would prefer to see that.

Sounds to me like you have a solid application, just remember to send in the OWP with the application as this will give you implied status should your work visa end and let you continue working until you receive AIP.

 

[BeShoo]

My concerns are:
1. The photos I submitted aren't really from trips (holidays), I'm not allowed to leave the country on my WP and he doesn't have a passport yet. I just sent everyday photos like fishing, horseriding trips, photos from last Xmas. Will they look at that and wonder why we haven't been on a 'real' trip?? I did explain the whole passport thing, and that he changed jobs so right now, a holiday is bottom of the list.

This is one thing that I wouldn't worry about. Everyday stuff is more important than vacations. Consider these comments from a judge in an appeal case (http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Federal+-+Immigration+and+Refugee+Board+of+Canada&path=/en/ca/irb/doc/2009/2009canlii72215/2009canlii72215.html):

While the activities the appellant and the applicant participated in were consistent with a marriage-like relationship, during the relevant time their activities were more like a holidaying couple than the everyday life of a married couple. The holiday nature of their relationship during the relevant time period does not assist in clarifying whether they were boyfriend-girlfriend or a couple in a marriage-like relationship. As depressing as it may sound, if the appellant was taking out the garbage and the applicant was washing his socks that would lend more weight to the claim of a marriage-like relationship than lying on the beach in Spain. Under this category, the evidence before me is roughly neutral with respect to whether this was a marriage-like relationship during the relevant time period.

I'm a little concerned about your use of the word "fiance". Under the law, you cannot sponsor a fiance. You need to already be in a marriage-like arrangement (for at least one continuous year prior to the application date), not just planning to be in one in the future.

As far as the vacations go, the most important thing is to show that you do things together. If you took separate vacations, that would be bad, but no vacations cannot be considered a problem.

 

[sophie100]

We have been common-law for almost 18months, living together and financially joint. He proposed to me on New years eve 2009. On my application I said we were common-law, to me being engaged is just a temporary period between being common law partners and being married!
Is that really the law? So are you saying we could be declined because we got engaged???

 

[Kess]

We have been common-law for almost 18months, living together and financially joint. He proposed to me on New years eve 2009. On my application I said we were common-law, to me being engaged is just a temporary period between being common law partners and being married!
Is that really the law? So are you saying we could be declined because we got engaged???

There's nothing against sponsoring a fiance (Canada doesn't have a fiance visa like they do in the US). "Fiance" is just a title. In order for the relationship to qualify it needs to be marriage-like. So living common-law is the next best thing to actually being married. The difference I think is that when in a common-law relationship your partner is your spouse legally and spouse is a better title to use.

 

[can_usa_97]

This is one thing that I wouldn't worry about. Everyday stuff is more important than vacations. Consider these comments from a judge in an appeal case (http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Federal+-+Immigration+and+Refugee+Board+of+Canada&path=/en/ca/irb/doc/2009/2009canlii72215/2009canlii72215.html):

That was an interesting read! Thank you for sharing.

 

[sbwv09]

I have heard of people being turned down if they call their partner a 'fiance' on their application or say they are planning to get married. They were told to get married and then apply as spouses.

 

[rjessome]

I have heard of people being turned down if they call their partner a 'fiance' on their application or say they are planning to get married. They were told to get married and then apply as spouses.

Where?

As long as the couple meets the definition of "common law" for the purposes of immigration, they cannot be refused for using the term fiance. If they are, then the VO has committed an error in law and the couple would win on appeal. It probably wouldn't even get to appeal as they could ask for a reconsideration of the Program Manager quoting the law and if this was the only reason for refusal, they would win.

 

[BeShoo]

On my application I said we were common-law, to me being engaged is just a temporary period between being common law partners and being married! Is that really the law? So are you saying we could be declined because we got engaged???

The applicant's guide carries a stern warning:

Note: There is no fiancé(e) category in Canada's immigration legislation. If you and your sponsor are fiancé(e)s, you must marry before your sponsor submits the sponsorship and immigration applications. Your application may be refused if you apply as a fiancé(e).

You could only be declined if it seems that you do not really consider yourselves married yet. If you consider your relationship to be a step towards marriage, that could send a red flag. From another appeals decision:

The relationship must not be precursor to a conjugal relationship; that is, where the relationship may be described as a precursor to a marriage-like relationship, it will not be considered a conjugal relationship.

The context of that is that it refers to a claimed "conjugal partnership" rather than to a common-law partnership, but the principle could still apply. From the OP2 policy manual (discussing conjugal partners):

Officers should also inquire whether the couple is planning to marry. If they are planning to marry, then they are fiancés and may not have established a conjugal relationship. Officers should explain that there is no fiancé(e) category in Canada’s immigration legislation, and that the foreign national fiancé(e) must be married to their Canadian sponsor and apply to immigrate as a married spouse.

They must be satisfied that you "have already made a significant commitment and intend[ed] to be together for a significant time or even permanently," at least one year before you applied. Using words like "fiancé(e)" or girlfriend/boyfriend suggests that you may not yet be in a permanent relationship and may not consider yourselves spouses yet and therefore could have a negative impact on your case.

 

[rjessome]

Good research! But the error is that it is for consideration of conjugal relationships. Both Conjugal and Common law are legally defined terms in the Immigration and Refugee Protection Act. And yes, you are right that if someone is applying as conjugal yet intend to get married, they are not truly meeting the requirements to qualify as conjugal partners. Common law does not have the same limits or intent under IRPA as conjugal. The test is cohabiting for 12 consecutive months in a conjugal relationship. If they meet this requirement, they cannot be refused because they intend to marry. How can the same principles apply? Common law is NOT for couples who cannot marry or suffer from an immigration barrier to be together.

So I respectfully disagree.

 

[BeShoo]

Common law does not have the same limits or intent under IRPA as conjugal. The test is cohabiting for 12 consecutive months in a conjugal relationship.

I don't mean to suggest that using the wrong word will cause your application to be refused but I think that it may introduce doubts. Cohabiting alone dows not make for a common law partnership. You could cohabit with a roommate or your parents, for instance, and not be in a common law partnership with them. It must be a conjugal relationship as well.

I'm only trying to say that using the word fiancé(e) may cause the IO to doubt whether this is yet a conjugal relationship. The success of the application depends on proof that supports the 7 factors of a conjugal relationship, not on which words you use.

 

[rjessome]

First, I want to compliment you on analyzing this from a legal perspective. Although I still think you are wrong. Isn't it funny how this process changes the way we think? Analytical ability helps a great deal in immigration matters.

As I said, the test is "living together for 12 consecutive months IN a conjugal relationship" so meeting the factors required for conjugal PLUS cohabitation. So two different categories and two different tests. More than that, planning to marry even when applying as conjugal should NOT prevent a positive decision if the relationship has been determined to be conjugal. Read http://www.canlii.org/eliisa/highlight.do?text=%22fiance%22+AND+%22immigration%22+AND+%22conjugal%22&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/irb/doc/2008/2008canlii76624/2008canlii76624.html

No where in the 7 factors for the definiton of a conjugal relationship does it say "but must not intend to marry."

Bottom line is that any couple must meet the requirements of their category to be successful. The Courts have said that CIC can't tell you whether you can or cannot get married. As long as a couple meet IRPA's definition and IRPR's description for their category, the application SHOULD be approved. We all know this isn't always the case but that's how it should be.

Getting back to the OP's concerns, intending to marry will not hurt their application as long as they meet the requirements of their category.