Same Sex Conjugal Partner application
- Thread starter Nerd13
- Start date
Not that I'm aware of but don't know.Thank you, btw do GCMS note request trigger a ghost update on the tracker
this Might help you all there is a huge change: https://cila.co/the-emancipation-of-conjugal-partners/
The requirement of proving an “impediment to cohabitation” was removed from operational instructions by virtue of a Program Delivery Update (PDU)
Also we had interview and it lasted 10 mins and it was all successful and my partner has arrived in Canada.
The requirement of proving an “impediment to cohabitation” was removed from operational instructions by virtue of a Program Delivery Update (PDU)
Also we had interview and it lasted 10 mins and it was all successful and my partner has arrived in Canada.
Congratulations! Did you ever get the gcms notes and did it have any information related to your issues? Could you share the note (w/o identifying details, of course)?
Did the issue of your previous cohabitation / common law come up in the interview?
Thanks for the link, I'm going to read through the operational manual and take a look. I remain skeptical though that this change will be quite so easily interpreted and implemented as the article implies.
(I don't really see that it applies much to your case anyway - the issue was different. The TRV issue is a bit of red herring in your case in that you ... simply hadn't applied for one. [I remain puzzled why some see this as a challenge - it boils down to applying for one, cost <$100.])
Why? Because by law, they also can't discriminate against opposite-sex partners, and opening as widely as the article implies would mean that - effectively - the 'spousal / common-law' sponsorship cases would be effectively reduced to second place after conjugal. I.e. there is no longer a requirement for marriage or common law. (That article seems to me to be written solely from the perspective of LGBTQ couples, and not much consideration given to how IRCC sees their tasks to ensure program integrity overall - that's not a crtiicism of that article's author, that's what the author seems to do for a living, but a caution about reading it out of context).
Now, don't get me wrong. There are points that sometimes come up here, argued at least by some on this board, that 'impediments to cohabitation' should also be argued to include requiring the sponsor to move to the country of the PA and reside there until they become common law; that interpretation was and is clearly absurd (I do not know if IRCC has ever argued this).
But with the exception of couples that cannot get divorced (eg PH citizens), the 'apply for a TRV and at least get refused' (impediment) served not as a test of impediment to cohabitation but more as a test of impediment to marriage, because same-sex marriage permitted in every province of Canada.
There have been occasional cases and challenges regarding couples who just don't want to get married and for complicated reasons can't or won't get to common law (12 months continuous cohabitation). A bit weird, I think mad, because people's personal reasons to not want to get married are their own damn problem and do not require government accommodation. (Jurisprudence does not agree with me on this - I think legal civil marriage is a strictly legal and civil arrangement defined by government and not some church of Disney-defined fantasy, and saying you have 'moral or religious' or whatever objections is irrelevant - as silly as saying you have moral objections to drivers' licenses. Government can require individuals to get drivers' licenses. But again, this is my opinion - Im' not required to agree with the courts, nor they with me)
Anyway back to our sheep: I think the way things end up is that individuals who WISH to apply under the conjugal regime without showing the two impediments traditionally required CAN do so; and IRCC CAN require a lot more (painfully more) proof of relationship, etc. And they can refuse if they're not convinced, and the applicants can appeal; they might even win, at considerable cost of time and $$$.
And those who can demonstrate the two impediments (marriage and immigration) will get approved more quickly with much less chance of refusal. So I'd still recommend trying to show those.
As for how this applies to your case? They could have dinged you both for having been in common law undeclared before you immigrated, and banned from sponsorship forever. They took pity on you. I'm glad of that because I think your mistakes were unintentional. I just don't think it necessarily provides much indication for other (potential) conjugal partners on how to proceed.
Thank you! The GCMS notes I received were heavily redacted, so there wasn't much information to glean from them beyond the details of the next steps in the process.
During our immigration interview, the issue of our previous cohabitation or common-law status did not come up. In our personal statement and the letter from my lawyer submitted with our application, we made it clear that our case was unique. My lawyer and I discussed the advice you provided, and they emphasized that visa officers consider the cultural dynamics of each individual's country when assessing cases involving LGBTQ+ individuals.
It seems that our unique circumstances may have been a factor in the decision. I'm grateful for the outcome, as it suggests that our unintentional mistakes did not lead to harsh consequences. While our experience may not provide a clear roadmap for others in similar situations, I hope it highlights the importance of thorough documentation and legal guidance in immigration cases.
I happened to come across this federal court case on a question of common law that is partially relevant:
https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/525200/index.do
And more importantly, POSSIBLY relevant to other undeclared common law / misrepresentation cases. (And not only)
The case outlines the narrow (repeat: NARROW) exception to misrepresentation, the innocent mistake exception: "The test for the innocent mistake exception is whether an applicant can demonstrate both an honest and reasonable belief that they were not withholding material information."
Anyone interested should read carefully, because in this case, the 'innocent mistake' exception ended up turning upon (and being denied) in part because the applicant thought they understood everything on the form and had or could inquire of others (and had someone who was helping them complete the forms).
So, a danger point is that (for example) anyone working with a rep or anyone completing such forms in Canada already might fail on the reasonable belief part - i.e. that it's (arguably) not reasonable to have not inquired what the term means when completing a form. You're expected to know or find out what terms on the form mean (generally). I'd therefore argue that whether or not IRCC considers a mistake 'innocent' (honest and reasonable) is going to depend a lot on the credibility of the applicant and any goodwill the examining officers might have towards the applicant. Or in other words, if it gets to point where they are challenging an application, it may be too late for innocent mistake arguments.
How this applies to your case: well, perhaps higher chance that because common law is already not a familiar term, and because the societal prohibition on same-sex relationships so strong, that they may have simply given you the benefit of the doubt on this being an innocent mistake.
What I was told by the Solicitor was that if they had looked at this from the point of view of innocent mistake they would have not even moved the file and would have sent an PFL, not even given the sponsorship approval as he had seen cases where at sponsorship approval is declined for similar cases for straight couples.
He said everything is not black and white per se and each and every application is thoroughly scrutinized.
But again I see the point you made which is valid.
This bolded part at least is not true - it's possible it is done this way once in a while, but the vast majority of times (all the ones I've seen) it comes later, after sponsor approval. Honestly it doesn't even make sense and is faulty reasoning. Why?
Because the sponsor remains eligible to sponsor even if the partner was undeclared - he/she just can't sponsor that one specific individual. And I'm at a loss to see how they would determine the sponsor is ineligible to sponsor that individual without the stage of examining the eligibility of the partner.
That said, I obviously can't say that they ahven't seen what they say they've seen.
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