There is one, it is Mao v. Canada, it is not exactly on point as the person was only there for a certain number of days per week. Since you gave me this mission, I found one: Aguas v Canada, in which two people were living together "each day", however they were perceived by society (including the family they lived with) as just dating.
Counsel for the respondent submitted that the appeal should be dismissed because even though they did not have a separate common residence, the applicant stated at the visa office interview that they were together every night since 2006. Counsel argued that there was no evidence to support that the applicant was nervous at the interview or that the visa officer was asking leading questions. Counsel submitted that the appellant was attempting to make a false distinction by now stressing the lack of indicia of a common law relationship.
I find the indicia of common law and conjugal relationships are in essence very similar with the exception of the requirement for cohabitation that exists in a common law relationship. It is reasonable to conclude that the appellant and applicant were in a close personal and sexual relationship during the period in question. However, I find that the weight of the evidence does not support that there was cohabitation as required by the Regulations. While the appellant and applicant may have slept at each others’ family homes and spent most if not all of their free time together, this does not reach the level of cohabitation: they were not societally perceived as being in a marriage like relationship, they did not share economic support, there were no shared services, they did not share a common residence, there were no common assets.
I find on a balance of probabilities that the appellant and applicant were not in a common law relationship as defined in subsection 1(1) of the Regulations and that the applicant was not a family member as defined in subsection 1(3) of the Regulations. Accordingly, paragraph 117(9)(d) of the Regulations does not apply. The appeal is allowed.
Walia v. Canada defined Cohabitation for Misrepresentation and it was referred to in Jorgbo v. Canada when granting that couple judiciary relief.
Le v Canada is another case where common-law was brought into the equation. In that decision the panel allowed the appeal based on the following factors: shelter, sexual and personal behaviour, services, social activities, economic support, children, societal perception. The reason for their decision based on cohabitation was as follows:
Viewing the evidence as a whole, the panel finds that from 1992 to 1994, the Appellant and Applicant were not in a common-law or conjugal relationship. Their relationship during that time period lacked the requisite qualities of permanence, mutual commitment and interdependence. According to the testimony, they never moved into one household to cohabit together. There is no evidence of financial support or financial interdependence between 1992 and 1994. Although it may be the case that their parents accepted their relationship, there is no evidence that their families and friends elevated the relationship to a common-law or conjugal relationship. The Appellant’s commitment to the Applicant was uncertain at the time he left Vietnam in 1994. The Appellant found out about the pregnancy several months after he landed in Canada, and the child was born after the Appellant landed; hence, there is no evidence on their attitude and conduct towards children from 1992 to 1994. While they had a serious and intimate relationship that resulted in a pregnancy, the relationship from 1992 to 1994 stopped short of being a conjugal or common-law relationship.
As you can see, this relationship in which they lived together even resulted in pregnancy and a child.
Somar v Canada, included much of the same (including a pregnancy)
Parsons v. Canada, they "stayed with each other every day" to the point of using the same address, however made some submission to immigration which caused an officer to address a letter to her regarding her relationship in 2004:
The letter from Nathan Haley, Immigration Officer, indicates that the appellant presented to him the applicant as her boyfriend in August 11, 2004 and that he assessed “that the relationship that existed between her and her boyfriend could be considered a common-law relationship”. I give this letter little weight with respect to a positive finding that they were in a common-law relationship as it is not clear from this letter what facts against what factors led this officer to determine that their relationship was that of common-law. However, I give the letter weight for a finding that the appellant characterized the applicant as her boyfriend back in August 2004. I note that the officer works for Citizenship and Immigration and opinioned “that [the appellant] has always been very forthright and has not knowingly tried to deceive myself or this department.”
It appears they were fairly involved:
The appellant testified that she was not romantically involved with anyone else from 1999 to 2003. She indicated that to her knowledge the applicant was not with anyone else during this period.
The appellant testified that they were not financially interdependent but that the applicant was in a better position and helped her out. I note that the appellant was a single mother living as a refugee in Sierra Leone. She earned money by making and selling cloth. The UN also helped her. The appellant testified that when she left for Canada she did not have a plan regarding them and thought that one day she was going to go back to visit.
The appellant was formally introduced to his family for customary reasons, which I find is understandable as they were living in the same area and she was staying at his place where family would be there. She said there was no exchange of kola nuts. I give more weight to the appellant’s testimony that the applicant met her mother in February 2009, who has been in Liberia, just some months before they got married in May 2009 and that her mom visited Sierra Leone for the wedding.
I give some weight to Debbie Turnbull’s letter dated November 16, 2010 as she has known the appellant since 2004. She is a Social Services professional and is thus disinterested to some extent. Ms. Turnbull indicates that the appellant “consistently described Johannas to [her] as her boyfriend.” Her lengthy letter sets out details such as the applicant “had been a father figure to her son” and “that while they did not live together they did spend time staying at each others home.”
I note that the applicant was not called to testify by teleconference. Minister’s counsel asked that I draw an adverse inference. I note the applicant was examined in a substantial interview by the visa post. Appellant’s counsel initially indicated that the applicant would be called and that they had phone cards. While we were not required to do so given that the onus rests with the appellant, I note that neither Minster’s counsel nor the Panel asked to hear from the applicant. In the case at bar, the testimony of the appellant was sufficient to persuade me that they were not common-law partners. Therefore, the Panel finds that the appellant’s evidence was sufficient to discharge her onus in this appeal.
While the evidence points to them being in a serious girlfriend-boyfriend relationship, the evidence is insufficient to support a conclusion that they were in a common-law relationship as understood in IRPA. I accept her testimony that in hopes of bringing the applicant to Canada she characterized their relationship as common-law and one in which they were cohabitating without fully understanding what they mean in Canadian immigration law. The appellant stated that she did not know what a common-law relationship is until she was in Canada and spoke with others and that the phrase was, therefore, not well understood by her. It is reasonable that living in Canada as she has now for the past number of years could make her more familiar with this concept as understood in Canadian immigration law.
On a balance of probabilities the Panel, especially given the nature of their relationship, their ages at the time she applied for permanent residence, their separate residences, their lack of future plans when she left for Canada and the lack of shared responsibilities for the appellant’s son, finds that the appellant and the applicant were not living together in a conjugal relationship for one year at the time she applied for permanent residence and became a permanent resident.
Liu v. Canada discusses an affair in which CIC attempted to define as a conjugal relationship:
In her submissions, counsel for the Respondent set out the indicia for a conjugal relationship, which originated in the Ontario District Court judgment in Molodowich v. Penttinen[4] and was cited by the Supreme Court of Canada in M. v. H.[5] These criteria have been used by the IAD in assessing conjugal relationships and are as follows:
Shelter: Did the parties live under the same roof? What were the sleeping arrangements? Did anyone else occupy or share the available accommodation?
The parties lived together “on and off” in 1997/1998. The Appellant paid for a residence for the Applicant and their son. They cohabited for periods when the Appellant returned to India.
Sexual and Personal Behavior: Did the parties have sexual relations? If not, why not? Did they maintain an attitude of fidelity to each other? What were their feelings toward each other? Did they communicate on a personal level? Did they eat their meals together? What, if anything, did they do to assist each other with problems or during illness? Did they buy gifts for each other on special occasions?
Services: What was the conduct and habit of the parties in relation to preparation of meals, washing and mending clothes, shopping, household maintenance and any other domestic services?
Many of the aspects under this category were not brought out directly in evidence, or where only hinted at. There is little question that the Appellant and the Applicant had a sexual relationship, their son is proof of that. As well, they evidently, at least during the 1997 to 1998 period, cohabited for periods. The relationship cannot be said to be mutually exclusive, as the Appellant remained married and continued to reside at least part of the time with his wife and at one point, was trying to repair his marriage. However, both testified that they continued to have a physical relationship until the Appellant migrated to Canada.
Social/Societal: Did they participate together or separately in neighbourhood and community activities? What was the relationship and conduct of each of them towards members of their respective families and how did those families behave towards the parties? What was the attitude and conduct of the community towards each of them and as a couple?
The Applicant began using the Appellant’s name in 1997. Her family did not approve of the relationship at this point. The Appellant testified that her family has now accepted him and their marriage and the Applicant testified that her elder sister came to their wedding.
Support (Economic): What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)? What were the arrangements concerning the acquisition and ownership of property? Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
All the evidence suggests that the Appellant has consistently provided financial support to the Applicant and their son. He testified that he gave her money before he went to Canada.
Children: What was the attitude and conduct of the parties concerning children?
The Appellant and Applicant have a child, born July 27, 1999. The Appellant has been continuously involved in his son’s life and his consistently provided financial support for him. He testified that he took him to the doctor when necessary and saw him “every day”.
Given that, and in the absence of evidence that the Appellant had cut the Applicant out of his life completely in order to reconcile with his wife, it is difficult to deny that the couple were in a conjugal relationship in 2000. At that point they had co-habited for periods of time, were financially involved, by both of their admissions continued to have a physical relationship, the Applicant was using the Appellant’s last name and most importantly, they had had a child together.
The panel finds that the Appellant and the Applicant were in a conjugal relationship as of 1997 and that this has continued until 2002 when the Appellant departed for Canada, when, given their physical separation and the Appellant’s alleged attempts, and certainly brief attempt to repair his marriage, it could be argued that there was a break at this point. According to their own evidence, their relationship resumed at some point after that. The Appellant initially testified that he resumed his contact with the Applicant in 2006, and then changed his testimony to 2003. The Applicant indicated in her questionnaire that they cohabited in 2003. The evidence is consistent that by 2006, at the latest, their relationship had resumed. They have formalized their relationship by marrying in 2011.
The most amazing part of this is this final sentance in the summary of decision:
[24] The Appellant and Applicant became conjugal partners in 1997. This relationship continued until 2002, when the Appellant migrated to Canada. It resumed, at the very latest, in 2006.
[25] The fact that the Appellant did not list the Applicant as a family member in his application for permanent residence made in the year 2000 has no bearing on the outcome of this appeal. The Appellant is required to list family members on an application for permanent residence. The definition of “family member” does not include conjugal partners
As same-sex relationships are not permitted in the Phillippines, and common-law same-sex relationships are not recognized there, one could make the argument that this is a conjugal relationship and they are therefore not excluded by R117(9)(d) because they are not technically "family".
Basically, it all depends on the level of "living together" that they did.
As for the other's which dismiss appears, they do mention all those forms of proof, and the result was that since they had that proof at the time, they were in fact common-law. (Examples include proposing before leaving to land as a PR, pledges of support, children together, love letters from the time, admitted in sworn affidavits, had a religious marriage)(Adjewiyi-lambe v. Canada, Olivier v. Canada, Surpris v. Canada, N'Diaye v. Canada,Tano v. Canada,Brayko v. Canada)
TLDR; my head hurts
