common law vs just get married already!

[Blueeyes294]

We have been together for 8 years. I am American and he is Canadian. For the first two years, we lived together in the US (he had a work visa) then he moved to Alberta and took a job in the oil sands. He travels back to see me about every 8 weeks (we have passport to prove this) Now we need to move me to the family home in Nova Scotia to care for his parents and the family farm. We have no kids. He will continue to travel back and forth. Do we get married and apply that way? Do we apply as common law even though he lives in Alberta? I want to end up with dual citizenship eventually. Thanks so much for your time and your help!

 

[Rob_TO]

Since you lived together for 2 years you would easily qualify as common-law. Hopefully you kept lots of proofs, evidence and records that show this. So there is no need to wait until you're married if you want speedy processing!

edit: Hmm actually, after seeing the definition of common-law from CIC:
You are a common-law partner if:
you have been living together in a conjugal relationship for at least one year in a continuous 12-month period that was not interrupted. (You are allowed short absences for business travel or family reasons, however.)

.. i'm not 100% sure it still applies to you. You were common-law for the first 2 years of relationship, but over the past 6 years you have been living separately. I'm really not sure if the common-law status follows you indefinitely if you move apart (but are still a couple) afterwards. I would think it does... but hopefully others can confirm.

 

[Sweden]

I think you are in a grey area... because you were common-law for sure before, but because he spends so much of his time out of the US, it could be argued that he is not anymore... it depends on how much time he spends with you between each visit. If it's 8 weeks in Alberta, and then 8 weeks with you, it could still count because it could count short absence for family business etc - but if it's less, it will be come harder to prove. It might still be feasible, but it will most likely delay your file etc.
If you get married on the contrary, you won't have to prove that you live together - you will still have to prove that you are a couple, but with a 8 years relationship and the fact that he comes to see you every time he is off, it would not be difficult.
So - getting married might make your case much easier.
Good luck,
Sweden

 

[DGT]

Getting married would definitely help, and more to the point, it's a great excuse for a hell of a party! Good luck! Whereabouts in Nova Scotia is it that you're off to by the way?

 

[Blueeyes294]

South Branch/Stewiacke area

 

[Rob_TO]

I think the answer is here: http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf , under section 5.36/5.37. It seems like once you live together 1 year... it doesn't matter what happens after that and you will always be common-law AS LONG AS you can prove you're still in a relationship in general.

5.36. How can someone in Canada sponsor a common-law partner from outside Canada when the definition says “is cohabiting”?
According to case law, the definition of common-law partner should be read as “an individual who is (ordinarily) cohabiting”. After the one year period of cohabitation has been established, the partners may live apart for periods of time without legally breaking the cohabitation. For example, a couple may have been separated due to armed conflict, illness of a family member, or for employment or education-related reasons, and therefore do not cohabit at present. Despite the break in cohabitation, a commonlaw relationship exists if the couple has cohabited continuously in a conjugal relationship in the past for at least one year and intend to do so again as soon as possible. There should be evidence demonstrating that both parties are continuing the relationship, such as visits, correspondence, and telephone calls.
This situation is similar to a marriage where the parties are temporarily separated or not cohabiting for a variety of reasons, but still considers themselves to be married and living in a conjugal relationship with their spouse with the intention of living together as soon as possible. For common-law relationships (and marriage), the longer the period of separation without any cohabitation, the more difficult it is to establish that the common-law relationship (or marriage) still exists.
5.37. When does a common-law relationship end?
A common-law relationship is deemed severed or ends upon the death of one partner or when at least one partner does not intend to continue the conjugal relationship. Again, the facts of the case must be examined to determine if the intent of at least one partner is to stop cohabiting in a conjugal relationship

 

[Sweden]

well yes and no - because the "intend to do so as soon as possible" will be hard to argue if the situation has been going on for 6 years ( commuting to Alberta etc) - after 6 years it's difficult to establish that it's a temporary situation and that the parties intended to live together "as soon as possible"...

also the last paragraph:
For common-law relationships (and marriage), the longer the period of separation without any cohabitation, the more difficult it is to establish that the common-law relationship (or marriage) still exists.
but there is also that part:
common-law relationship is deemed severed or ends upon the death of one partner or when at least one partner does not intend to continue the conjugal relationship. Again, the facts of the case must be examined to determine if the intent of at least one partner is to stop cohabiting in a conjugal relationship
so - I agree with Rob_TO : I still think that you qualify as common-law, but you will most likely have a hard time proving it, and if you get a very picky visa officer, it might take quite a lot of time. Where if you're married - then it's OK to be apart, and you become more of a "straight forward case" - so in the end, it's your choice, and it also depends if you're in a hurry or not.

Good luck,
Sweden

 

[Rob_TO]

but you will most likely have a hard time proving it, and if you get a very picky visa officer, it might take quite a lot of time. Where if you're married - then it's OK to be apart, and you become more of a "straight forward case"

Well "employment" is specifically listed as one valid reason to be apart. And since he is travelling back and forth every 8 weeks (and if they could show all the airplane tickets that show this as well as proof of constant communication during this long time) it would easily show they are in a relationship still. If i was the VO looking at this... it would be more than enough proof for me.

However of course i'm not the VO, and as Sweden says it's pretty much completely up to the one VO that reviews your file and who knows what they will think. Getting married will probably eliminate some of the questions... but still it's not a straight-forward case. Either way you will have to prove the legitimacy of your long-distance relationship over the past 6 years. Any married couple who was not cohabiting during a long period of time like 6 years... will need to go above and beyond to convince the VO.

 

[DGT]

South Branch/Stewiacke area

Ah that's cool!

My wife is from up in Truro!

 

[Blueeyes294]

We decided to get married!

 

[Sweden]

well congrats in advance then! and since you know that you will be applying for PR afterwards, you can make sure that you have all the proofs from the wedding ( pictures with family and friends, receipt for booking etc etc!).
Good luck,
Sweden

 

[canadianwoman]

Yeah, take a look at the application forms and the kind of evidence they are asking for. Then make sure you get this evidence during the marriage prep. Of course, don't make it look contrived!

 

[Blueeyes294]

We have been together now going on 9 years so because we are legit, I am not too worried about this anymore. We are getting married this month (Feb) and then he will apply to be my sponsor. Once that is done, I will apply. We have been "in the computer" since our hour long seperate interviews when we moved his stuff to Alberta over 2 years ago for the oil sands job. We are building on the farm (for some reason, the fact that I am moving to the family farm works in our favor somehow - I have been told - but I don't know why). We are moving the majority of our home contents with PODS this summer. I will travel back and forth via planes between our two homes until I get approved to stay. Any idea how long it will take for his sponsorship to be approved? Are we going to have trouble getting our home contents (with inventory etc.) into the country? I plan to show my return ticket each time I go so I don't think that will be a problem. Since we are following all the rules and are completely on the up and up I am hoping this will all work out OK. Am I being naive? Thanks so much for your time.

 

[Rob_TO]

Any idea how long it will take for his sponsorship to be approved?

This depends on if you apply inland or outland.
With inland you must be in Canada, and stay in Canada during entire processing time. Sponsor approval takes around 6 months... and then applicant approval another 6 months to 1.5 years.
With outland you are free to travel back and forth from USA. Sponsor approval takes around 1 month, and then I believe applications go through CPP-Ottawa, so it's best to check on the thread on that office to get an idea of timing.

Are we going to have trouble getting our home contents (with inventory etc.) into the country?

While you with a return ticket on your own shouldn't be a problem, your house contents may be. Remember you are only a visitor to Canada, so you are NOT allowed to "move" or "live" here permanently. If you yourself try to go across the border with a truck full of contents, there is a good chance you will be denied since it would be obvious you are intending to live here.

Now if your husband is the one doing all the moving and saying everything is his, that might be easier.

Also i'm not sure if any of your home contents will be subject to import duties, taxes, tariffs etc when you cross the border. After you get your PR, you are allowed to move your stuff duty-free, so depending on the contents it might be better to wait for some things.

 

[AnaMaria]

We are getting married this month (Feb) and then he will apply to be my sponsor. Once that is done, I will apply. We are moving the majority of our home contents with PODS this summer. I will travel back and forth via planes between our two homes until I get approved to stay. Any idea how long it will take for his sponsorship to be approved? Are we going to have trouble getting our home contents (with inventory etc.) into the country? I plan to show my return ticket each time I go so I don't think that will be a problem. Since we are following all the rules and are completely on the up and up I am hoping this will all work out OK. Am I being naive? Thanks so much for your time.

Congratulations on your upcoming marriage! You will have stronger and more straight forward case. Just as a clarification, you will need to send his sponsor part and your application together. The approval process takes 2 steps but these are considered as one application.

Moving your home contents, I assume furniture, will pose a problem. They will see you as moving to live without permit. You may be denied entry. (You can bring your personal belongings such as clothes without this problem.) Your husband-to-be can bring them but they are subject to custom. If you import them to Canada when you land (getting PR), you can do that without paying taxes.

Always bring evidence that you will return to the US when traveling while waiting.