I have a very big question left outstanding from a separate discussion regarding what constitutes "Other Serious Barriers" for the Conjugal Partnership class.
In a separate discussion, most of us seemed to agree that the official assessment guide indicates there would not need to be a legal/immigration/religious/sexual orientation barrier to getting married (only an agreement between the couple that they are not getting married).
There does, however, need to be serious barrier(s) preventing at least one year of continuous cohabitation between the Sponsor and PA.
Here is relevant information from CIC:
"A conjugal partner is:
(Am I the only one that sees a gap in the official documentation? i.e. That the conjugal partner barrier requirement only applies to the PA in the definition. Also if the barrier is faced by the Canadian it should be stated as an emigration barrier. Surely it's my oversight and this is clarified elsewhere in the same sources?)
From the assessment guide:
"Although the intention of the conjugal partner category is to accommodate Canadians and permanent residents with foreign partners who can neither marry nor live together, the inability to marry cannot be an absolute requirement, since this could have the effect of “forcing” those couples to marry who may have chosen not to. Persons who have established and maintained a conjugal relationship for one year and who do not intend to marry might be conjugal partners if they have been unable to cohabit because of an immigration impediment or other serious barrier. The key to determining whether an individual is a conjugal partner is whether they are in a conjugal relationship with their sponsor and whether there is a compelling barrier to continuous cohabitation."
Let's imagine the PA barrier is fairly straightforward: the PA cannot get a TRV to Canada and has records of two or more rejections. I am curious in general about the following question (beyond the barriers we are aware of, e.g. discrimination against LGBT people and the fact that some countries do not issue divorces readily or at all):
What means a Sponsor could not live with the Principal Applicant as a couple because of reasons beyond their control (e.g. immigration barrier, religious reasons or sexual orientation)?
Stated another way: What constitutes a "compelling barrier to continuous cohabitation" for the Sponsor (whether moving to the PA's country of residence or a third country that the PA can access)?
My personal opinion:
If a Sponsor has a child in Canada and joint OR full custody of this child there would be a compelling barrier to the Sponsor leaving the country for a minimum of one year (while maintaining only rare breaks from continuous habitation for less than two weeks each) in order to establish continuous cohabitation (in many but not all cases of joint/full custody), for example:
I would be very concerned if CIC required the effective abandonment of a child by a Canadian parent because that parent fell in love with a partner abroad who does not enjoy the privilege of a passport that would allow that partner to get a TRV to Canada.
/end of my personal opinion
One member, who I will not name but who can chime in if desired, disagrees. I will restate those positions to further the discussion:
Re: #1 I doubt it's impossible for the CIC to violate their own written policies. A denial on this basis alone, however, would violate written policy in fact. I would be worried - as a taxpayer not as a potential litigant - about litigation in such a situation. I am not, however, curious about the issue because it is clear cut.
Re: #2: is where the debate lay. I have asked in another thread but I will ask again with greater clarity:
Are there are any examples of the child custody scenario constituting an "other serious barrier" or not?
My understanding is that if it generally does constitute an "other serious barrier" it would get approved and not end up published. Also I think scylla mentioned that if it is rejected on appeal to IAD then it also is not published. It would be greatly appreciated if anybody has any experiences they are willing to share. Same for any policies/guides or any IAD/judicial reviews.
This post does not constitute immigration nor legal advice.
In a separate discussion, most of us seemed to agree that the official assessment guide indicates there would not need to be a legal/immigration/religious/sexual orientation barrier to getting married (only an agreement between the couple that they are not getting married).
There does, however, need to be serious barrier(s) preventing at least one year of continuous cohabitation between the Sponsor and PA.
Here is relevant information from CIC:
"A conjugal partner is:
- a person who is living outside Canada,
- in a conjugal relationship with the sponsor for at least one year, and
- could not live with the sponsor as a couple because of reasons beyond their control (e.g. immigration barrier, religious reasons or sexual orientation).
(Am I the only one that sees a gap in the official documentation? i.e. That the conjugal partner barrier requirement only applies to the PA in the definition. Also if the barrier is faced by the Canadian it should be stated as an emigration barrier. Surely it's my oversight and this is clarified elsewhere in the same sources?)
From the assessment guide:
"Although the intention of the conjugal partner category is to accommodate Canadians and permanent residents with foreign partners who can neither marry nor live together, the inability to marry cannot be an absolute requirement, since this could have the effect of “forcing” those couples to marry who may have chosen not to. Persons who have established and maintained a conjugal relationship for one year and who do not intend to marry might be conjugal partners if they have been unable to cohabit because of an immigration impediment or other serious barrier. The key to determining whether an individual is a conjugal partner is whether they are in a conjugal relationship with their sponsor and whether there is a compelling barrier to continuous cohabitation."
Let's imagine the PA barrier is fairly straightforward: the PA cannot get a TRV to Canada and has records of two or more rejections. I am curious in general about the following question (beyond the barriers we are aware of, e.g. discrimination against LGBT people and the fact that some countries do not issue divorces readily or at all):
What means a Sponsor could not live with the Principal Applicant as a couple because of reasons beyond their control (e.g. immigration barrier, religious reasons or sexual orientation)?
Stated another way: What constitutes a "compelling barrier to continuous cohabitation" for the Sponsor (whether moving to the PA's country of residence or a third country that the PA can access)?
My personal opinion:
If a Sponsor has a child in Canada and joint OR full custody of this child there would be a compelling barrier to the Sponsor leaving the country for a minimum of one year (while maintaining only rare breaks from continuous habitation for less than two weeks each) in order to establish continuous cohabitation (in many but not all cases of joint/full custody), for example:
- Maintaining support for the child in the best interests of the child where such support has been ordered (when moving from Canada to another country, if a downgrade in job salary takes place then this would not be in the best interests of the child and could constitute a legal barrier)
- Exercising custody of the child
- Providing guidance/parenting/companionship/affection
I would be very concerned if CIC required the effective abandonment of a child by a Canadian parent because that parent fell in love with a partner abroad who does not enjoy the privilege of a passport that would allow that partner to get a TRV to Canada.
/end of my personal opinion
One member, who I will not name but who can chime in if desired, disagrees. I will restate those positions to further the discussion:
- A couple wherein both parties are able to get married, but who have decided not to, cannot meet the requirements set out for a conjugal partnership.
- The full/joint custody scenario I have laid out does not constitute an "other serious barrier" (the poster's position is that having children and being in a relationship with a non-Canadian are both "personal choices").
Re: #1 I doubt it's impossible for the CIC to violate their own written policies. A denial on this basis alone, however, would violate written policy in fact. I would be worried - as a taxpayer not as a potential litigant - about litigation in such a situation. I am not, however, curious about the issue because it is clear cut.
Re: #2: is where the debate lay. I have asked in another thread but I will ask again with greater clarity:
Are there are any examples of the child custody scenario constituting an "other serious barrier" or not?
My understanding is that if it generally does constitute an "other serious barrier" it would get approved and not end up published. Also I think scylla mentioned that if it is rejected on appeal to IAD then it also is not published. It would be greatly appreciated if anybody has any experiences they are willing to share. Same for any policies/guides or any IAD/judicial reviews.
This post does not constitute immigration nor legal advice.
