Notarizing statuary declaration for gay common law union

[doriangray27]

I'm in a difficult position and need help. I recently got the provincial nomination from Ontario, however, my partner was not included in the nomination. I now need to apply to CIC and want to include my partner in the application. While my BF and I have been in a relationship for approval 4 years, we have been living consistently together for around 2 years. At the time I submitted the Ontario application, we had not yet been living consistently together for 1 year - AND - I was quite afraid of declaring the relationship as all the documents had to b notarized locally - and given the hardline muslim country I'm in, it would've meant death, imprisonment, lashing...you get the idea.

Now, I'm at the same stage again. I want to include him, we want to move there together - and if I don't mention him in the application then it would be tantamount to misrepresentation, HOWEVER, getting making statuary declaration for a gay union in front of a notary or a legal functionary in a Muslim country is so horrifically dangerous that we can't even consider it.

The question then is: what do we do?

I've tried calling the Canadian consulate, but then don't pick up the phone, or reply to email.

Any advice will be much appreciated. Thanks!

 

[computergeek]

I'm in a difficult position and need help. I recently got the provincial nomination from Ontario, however, my partner was not included in the nomination. I now need to apply to CIC and want to include my partner in the application. While my BF and I have been in a relationship for approval 4 years, we have been living consistently together for around 2 years. At the time I submitted the Ontario application, we had not yet been living consistently together for 1 year - AND - I was quite afraid of declaring the relationship as all the documents had to b notarized locally - and given the hardline muslim country I'm in, it would've meant death, imprisonment, lashing...you get the idea.

Now, I'm at the same stage again. I want to include him, we want to move there together - and if I don't mention him in the application then it would be tantamount to misrepresentation, HOWEVER, getting making statuary declaration for a gay union in front of a notary or a legal functionary in a Muslim country is so horrifically dangerous that we can't even consider it.

The question then is: what do we do?

I've tried calling the Canadian consulate, but then don't pick up the phone, or reply to email.

Any advice will be much appreciated. Thanks!

I think you've pretty much explained exactly what you need to explain to the VO.

Fill out the paperwork. Send them the common law declaration. Explain to them why it isn't notarized - that doing so would be a threat to your personal health and safety. Offer to appear before a consular official to sign a new copy before them.

One of three things is likely to happen:

(1) The VO will accept your unnotarized common law declaration under the circumstances;
(2) The VO will accept your offer to have it signed before a consular official;
(3) The VO will reject your common-law status.

In the case of (1) or (2) they would just process the rest of your application. In the case of (3) you should complete the immigration status and then sponsor your partner for immigration.

I've actually run into a couple with a similar situation before. The reason I suggest moving forward in case (3) is that if the visa office is the one that decides not to examine your partner, then your partner is not barred from being sponsored in the future. The bar to future sponsorship only applies if it is your decision not to have your partner examined.

It is unreasonable for the visa office to require that you do something that would place your life at risk.

Other possible suggestions:

(1) Find a sympathetic notary, one who won't care that you are declaring something that is a criminal offence in your country.
(2) Each of you execute two copies of the document with different notaries and then put them together. This isn't exactly ideal, but it might be enough to get the VO to move ahead with processing.
(3) Use a notary that does not read or understand the language of the declaration (it is available in both French and English). Note that a notary need not understand the meaning of the document they are witnessing - they are witnessing your signatures only, not attesting to the truth or falseness of the document itself.

I did a quick search and couldn't find any Federal Court cases dealing with a rejection of this type. This suggests that nobody has ever challenged a refusal for this reason; this could mean it has never arisen, or it could mean that a VO has never refused someone for this reason.

You might wish to contact legit.ca - http://legit.ca - they are an NGO that assists same-sex couples immigrating to Canada.

 

[doriangray27]

Hey, thanks for the response. So here's the update:

I approached the consular office - I have to say, given the content of the declaration, I was very very stressed, HOWEVER, They *may* be able to witness the signatures given the sensitivity of the declaration. They have called me back in a week with some additional documentation - let's see how that goes.

But this brings me to the second point: How long should I declare that we have been in a common-law union? We have been in a relationship since Sept/2008 and moved in together in early 2010. Given the nature of my work, for most of 2010 and early 2011 I traveled almost every week, but was back on weekends to spend time with him.

• Should I declare the union starting from 2010 - OR - from mid-2011?
• When I filed the Ontario nomination form, I did not mentioned my BF because the entire application form had to be notarized locally and mentioning a gay partner would have been suicidal. If I declare the union now, would CIC reject my application for allegedly 'misrepresenting' in my Ontario nomination form earlier?

HELP!

 

[computergeek]

Hey, thanks for the response. So here's the update:

I approached the consular office - I have to say, given the content of the declaration, I was very very stressed, HOWEVER, They *may* be able to witness the signatures given the sensitivity of the declaration. They have called me back in a week with some additional documentation - let's see how that goes.

That's excellent news, as I'm sure CIC would accept something witnessed/attested by the consular office in a situation like yours.

But this brings me to the second point: How long should I declare that we have been in a common-law union? We have been in a relationship since Sept/2008 and moved in together in early 2010. Given the nature of my work, for most of 2010 and early 2011 I traveled almost every week, but was back on weekends to spend time with him.

• Should I declare the union starting from 2010 - OR - from mid-2011?
• When I filed the Ontario nomination form, I did not mentioned my BF because the entire application form had to be notarized locally and mentioning a gay partner would have been suicidal. If I declare the union now, would CIC reject my application for allegedly 'misrepresenting' in my Ontario nomination form earlier?

HELP!

I'd count from the time you started living together. Your travel was work related so you had trips away from home - but home is where you and your partner lived together. I've traveled much like that before as well - as much as 70% travel time in one year. I never considered the hotels in which I stayed "home" and I always considered the residence I have with my partner to be the place where I'm living. However, if you are concerned about this (e.g., because of the concerns about misrepresentation) I would tell them exactly what you are telling us: I listed the date we started living together, however I spent only 25% of my time at that location until this later date. As long as either date is sufficient to establish the common-law relationship (under Canadian law obviously) it won't matter and by clearly disclosing you won't run any risk of misunderstanding or claims of "misrepresentation".

As for Ontario, I'd explain exactly what you've told us here. What you might do is inform the office in Ontario of your situation - that you did not declare your partner in your previous filings because to do so would have exposed you to serious criminal repercussions in your home country, but you do not wish to misrepresent anything to them. If you have a copy of something witnessed or attested by the consulate, I'd suggest sending a copy of that along to Ontario as well. Then include a copy of your correspondence to Ontario with your application to CIC. By being up front about this and explaining the background of your answer I'd expect Ontario won't change their decision to nominate you and you will not have misrepresented your circumstances to CIC.

I've never been through your exact situation, either. If you need an attorney I can (privately) point you to one who is well versed in same-sex immigration cases and issues and he would be able to better guide you than I can. Even just describing your circumstances and asking for advice might be sufficient at this point.

Here is the text of the law about misrepresentation:

40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation

(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

Source: IRPA Paragraph 40, Misrepresentation

Based upon this, I think it is advisable for you to clear things up with Ontario, since the PNP nomination might be "a relevant matter that induces or could induce an error in the Administration of this Act". Informing them of your partner and explaining why you cannot obtain a notarized statement should be sufficient for them - it shouldn't make any difference to your nomination, but by informing them you give them the opportunity to object if they wish to do so - hence, no withholding of material facts and thus no misrepresentation.

Good luck!

 

[doriangray27]

Dear computergeek,

Thanks for your detailed and well considered response. I also received your personal message regarding the attorney. I agree that I may need consultation to mitigate risk; I have also reached out to Legit and they have been very helpful. In case I need more detailed discussion, I will reach out the lawyer you pointed me to.

I have decided to declare our relationship from the time that we started living together - its the most straightforward way to go and the most honest. I hope the CIC staff understand the situation, especially why I couldn't declare the relationship to Ontario. I'll keep you posted.

Btw, I couldn't reply to your PM. Is it your profile setting, or am I just a tech Luddite?

-DG

 

[computergeek]

Btw, I couldn't reply to your PM. Is it your profile setting, or am I just a tech Luddite?

The site restricts the PM ability until you have posted 10 messages.

I'm glad the information has been helpful, as well as the pointer to legit. If there is any further insight I can provide, let me know. Good luck with your application!