I have been practicing immigration law for over 10 years now, and despite all of my knowledge and expertise, it was still quite a stressful and overwhelming process to prepare and file my own application in 2020. When I help my clients with their applications, I am rational, organized and calm. However, preparing my own application made me realize the anxiety and stress such applications can cause.
If you became a Canadian permanent resident through spousal (or common-law partner) sponsorship and you are no longer with your sponsor, you do not necessarily have to leave Canada.
It is important to note that the two year cohabitation rule that was previously in place in Canada was revoked and no longer applies to new permanent residents. This means that there is no minimum period of time which you need to remain living with your spouse/partner in Canada to keep your immigration status.
In fact, even if you and your spouse separate or divorce, they are still responsible for fulfilling the undertaking they made when they sponsored you for the three X period after you become a permanent resident. This includes being on the hook to the Canadian government to repay any social assistance payments you might receive during that undertaking period of three years.
Your sponsor cannot easily withdraw their undertaking to sponsor you. Once they have been approved as a sponsor (i.e. the first step in the application process) they cannot simply change their mind and decide they no longer want to sponsor you or be responsible for you during the undertaking period. If a sponsor wishes to cancel the undertaking, they must write to the Case Processing Centre in Mississauga before the application for permanent resident is finalized. Afterward, they will no longer have the option to withdraw or cancel their sponsorship.
Once you have been granted permanent resident status, your sponsor cannot have you deported or request that your permanent residence status be revoked on the basis that your relationship did not last. However, your status may become the subject of an investigation if your sponsor tells Immigration, Refugees and Citizenship Canada (“IRCC”) that your relationship was entered into for immigration purposes or that you misrepresented yourself in your initial application. Cases of fraudulent marriage and misrepresentation (either in your written application or any verbal communication with IRCC, including your landing interview) can be grounds to have your permanent resident status revoked and face deportation from Canada.
If your application is still in process and you and your sponsor decide to break up or get a divorce, you must notify the office processing your application immediately and cease to proceed with the application.
If you and your sponsor have separated, or divorced, you should also understand that there is a five year sponsorship bar for anyone who was sponsored as a spouse/common-law partner themselves. This means that you cannot sponsor a new spouse or partner within the first five years of you gaining permanent residence, regardless of whether you left your sponsor and have now remarried. This also applies if you receive your Canadian citizenship within five years of becoming a permanent resident.
If your relationship with your sponsor was genuine during your application and at the time you landed as a permanent resident, but has since dissolved or become abusive, you have the option to separate or leave your partner without having your permanent resident status revoked.
If you are in Canada with your spouse or common-law partner but have not yet been sponsored and landed as a permanent resident, or have not applied for permanent residence and have temporary status only, you may wish to consult with a lawyer about the potential impact to your status and ability to remain in Canada after a separation or divorce.
At Keyork Immigration Law, we often speak to clients who failed to include a partner or dependent family member in their application for permanent residence and later, after their own application has been approved, they decide they want to sponsor their family member to come live in Canada with them.
This is a serious issue and it is a difficult one to overcome. We touched on this issue in one of our earlier blogs this month about misrepresenting in an application for permanent residence and the consequences it could have on your own status. This included the need for a spouse or common-law partner to be admissible to Canada in order for you to also be considered admissible.
If you applied for permanent residence and included details of your common-law partner, but indicated that they would not be accompanying you to Canada, your partner would still need to undergo a medical examination and provide background details so that their admissibility could be determined. You could be considered inadmissible to Canada (and would not be granted permanent residence) if your partner was found inadmissible for health or criminal reasons.
If your partner was not considered inadmissible, but you indicated that they would not be accompanying you to Canada, and you proceed with the application and land as a permanent resident without including them you do not have the option of sponsoring them to come to Canada in the future. This means that they will have to apply to become permanent residents based on their own merits (as an economic immigrant, for example).
This is a very serious consequence when you indicate that a family member is non-accompanying and should only be used in situations where your partner or other family member will not be joining you at any point in the future. If you and your partner have plans to live in Canada in the future, but they are unable to move with you at the time you make your application, you may want to include them and have them travel to Canada and obtain their PR status so the above scenario is avoided. This situation can also be tricky, so we advise speaking with an experienced lawyer before you proceed, as there is still potential for your partner to lose their permanent resident status if they do not meet Canada’s residency requirement for permanent residents within the first five years of becoming a permanent resident.
There is an option of applying to sponsor under humanitarian and compassionate (“H&C”) grounds; however, this is a very difficult case to make and should only be relied on in extenuating circumstances. The best option is to evaluate whether you should include your partner up front, determine the best strategy and timing to bring you both to Canada and ensure that you do not face separation from your family member based on a barrier to their immigration status.
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Spousal sponsorship applications: new guidelines and requirements as of June 13-2017
The short answer and good news are – yes. Couples that are not married, but live together, are called common-law partners in Canada. This applies to you even if you and your partner are engaged, but not yet married. In order to qualify, you must have lived with your partner for at least one year to be considered for common-law spousal sponsorship.
What does it mean to be common-law in Canada?
Immigration, Refugee and Citizenship Canada defines a common-law relationship as:
A person who has been living in a conjugal relationship with another person (opposite or same sex), continuously for at least one year.
That’s right, Canada is a step ahead of many countries around the world – same-sex/LGBTQ marriages and relationships are legal and same-sex partners can sponsor each other for Canadian permanent residence.
What about the “conjugal relationship” in that definition? A conjugal relationship simply means that two people have a relationship with a significant degree of commitment between them. In other words, an intimate and codependent relationship where two people would be considered as a couple publicly.
My partner and I have traveled the world and lived together for 12 months, but it was not consecutive. Do we qualify?
Only common-law relationships where two people have lived together for 12 continuous months count under the common-law category. However, there is a separate conjugal category that might work. The conjugal category is less commonly filed than a spousal or common-law sponsorship and requires a lot more supporting evidence of the relationship. This category is usually used by couples that are unable to live together because of reasons beyond their control. For example, immigration or financial barriers might keep two people from living in the same country for a period of time, but they are truly committed to each other and intend to live together, and perhaps marry, when the circumstances are right.
Careful consideration of the factors in these situations is required – sometimes, it may make more sense to wait until a couple reaches one year of cohabitation before applying if they just started living together, or if they will move in together soon.
How can I prove my common-law relationship?
Common-law sponsorship applications are usually thick packages with a lot of documents. We always encourage our clients to submit as much proof as they have – the more the better. That being said, everything submitted should be relevant and you do not need to submit any intimate details.
Generally, proof of any children you have together, that you had mail sent to the same address for at least one continuous year and that you have joint finances are important to include. What about if you haven’t combined your finances or do not have a joint bank account or any children together? These documents are considered strong evidence but there are other ways to demonstrate that your lives are intertwined depending on your situation. For instance, proof that you present yourselves as a couple and have met each other’s family, friends and coworkers is helpful.
Given the personal nature of relationships, each situation is unique and the combination of documents required for a strong case will be different for each couple.
For conjugal relationships, the documents required are even more specific and it is important to build a very strong case showing that you have been in a genuine relationship for at least one year. This includes providing evidence that you are interdependent with your partner, even though you can’t live together, and showing IRCC what has kept you physically apart.
I was married before and am separated from my ex-spouse. Can I apply without a formal divorce?
You must be legally single before you can apply to sponsor a common-law or conjugal partner. Further, IRCC will only count the start date of your relationship after you are legally single and have finalized your divorce.
For example, if you are still legally married and moved in with your partner during your separation, you cannot count the period that you were separated toward the one year needed for the common-law relationship definition. The one-year qualifying period starts once your divorce is finalized and you are legally single.
Situations can be complicated, and sometimes a previous spouse may not be cooperative in the divorce process. If this is the case, we can discuss the details with you to help you develop a strategy for your partner’s immigration to Canada.
If you submitted an inland application to sponsor your spouse, common-law or conjugal partner, they have an option to work while the application processes.
This does not apply to applications that are filed at visa offices outside of Canada, even if your spouse or partner is living in Canada. However, they may still qualify for a work permit under another category.
Canadian citizens and permanent residents can sponsor their spouse, common-law or conjugal partners for Canadian permanent residence. The sponsored partner must be at least 18 years of age, and you must demonstrate a genuine relationship. Under the inland category, you must reside with your partner in Canada.
There are two steps in the sponsorship application process: (1) the sponsor eligibility stage; and (2) the application for permanent residence.
During the first step, immigration officers will assess the sponsor’s eligibility to sponsor their partner. Once approved, the partner’s application for permanent residence will be sent to another inland immigration office for processing.
Inland partners being sponsored may qualify for an open work permit while the application for permanent residence is being processed.
We strongly suggest that the open work permit application is submitted at the time the sponsorship, and permanent residence application is filed; however, you can also submit the work permit application after if you missed it during your initial filing. The partner being sponsored will need to submit a work permit form and supporting documents.
The open work permit application will be processed within four months from the time the sponsorship application is filed. Your partner is not authorized to work while they wait for processing and will need to receive their approved work permit before they can start work in Canada.
The open work permit option is not available for partners with applications being processed at immigration offices outside of Canada.
Once your partner receives their open work permit, they will be able to work in any province or territory across Canada in almost any occupation.
The restricted occupations include jobs in healthcare and child or elderly care. To have this restriction remove from the work permit, your partner will need to undergo an Up-Front Medical Examination and request that their work permit be unrestricted.
If your partner has an open work permit with these restrictions, they can request to amend the work permit and have the restriction lifted once they have undergone their medical examination.
The duration of the open work permit will depend on the validity of your partner’s passport and other factors, including discretion of the immigration officer reviewing the application; however, the work permit will cover the period until a decision is made on the permanent residence application. It can take at least one year (for applications filed on or after December 7, 2016) for an application to be processed under the in-Canada category.
If you are sponsoring dependent children along with your partner, the children will not be eligible for open work permits while the application processes. They may be eligible for a work permit or study permit under other categories.
Given that it can take a year or longer for an application to process inland, it is important to ensure that you have all of the required information and documents when you file so you do not experience significant delays.
If the sponsor does not include all required details to process the first stage of the application, they could get refused and have to start all over again, including paying the spousal sponsorship application fee a second time. Similarly, you may need to reapply if your partner’s application is refused at the second stage or you may lose time if the reviewing immigration officer needs to request additional documentation.
We strongly suggest ensuring that you have all mandatory documents as well as substantial evidence of your relationship. Even if you and your partner are married and have children, you will demonstrate that your relationship is genuine and the documents to submit can be extensive.
We also tell our clients to maintain a file with ongoing proof of their relationship after the application is filed. This way, if an immigration officer does request an additional proof, you will be ready to submit further documents quickly and will not have to spend time gathering this information.
As of June 13, 2017, new guidelines, checklists and requirements have been introduced by IRCC when it comes to spousal sponsorship applications. Even though IRCC accepts application prepared with according to old checklist until July 15, 2017, there might be a need to revise all requested documents with respect to the genuineness of the relationship and cohabitation, as the new checklist includes more detailed and specific documentation as well as more options to prove that the requirements have been met.
As a common-law partner, first of all, please verify that you use the right checklist: “IMM 5589”. If you apply under Spouse or Common-law Partner in Canada Class, you need to live with your sponsor when submitting the application. If you apply under the Family Class, you need to prove that you previously cohabited with the sponsor in a common-law relationship for a minimum of 12 months.
If you are currently living together, you and your sponsor need to submit two (2) of the following documentation:
1) proof of your joint ownership of a residential property;
2) rental agreement under both of your names;
3) proof of joint utility accounts;
4) proof of vehicle insurances under the same address;
5) copies of government-issued documents, as driving licenses, showing a common address;
6) other documents showing a shared address.
If you are not currently living together, you need to submit also documentation showing a minimum of 12-months of cohabitation, proving your correspondence and mutual contact information, as well as proving your visits to see each other.
In addition, regardless the class under which you apply, you also have to provide photos together as well as two (2) of the following three (3) options: documentation
1) of your mutual financial support;
2) of your recognition as a common-law partner;
3) or letter from your friends and family about the genuineness of your relationship.
The requirements with respect to cohabitation and genuineness have now become quite complex and failure to provide certain specific documentation can result in the entire application being returned to you. We highly recommend that you carefully review the checklist or consult with an immigration lawyer to obtain complete advice and recommendation.
Yes. If you and your husband wish to settle together permanently in Quebec, you will need a Certificat de sélection du Québec (CSQ). This is necessary following the Canada-Quebec Accord of 1991 granting Quebec the exclusive responsibility to select certain of its immigrants. Once you have submitted your application and your husband has been approved as a sponsor, the IRCC will invite you to apply for a CSQ. However, the CSQ does not guarantee the positive outcome of your spousal sponsorship application, as the federal government (IRCC) will be the one processing and approving your application.
I met my husband in Canada, he is a citizen of Mexico and I am a Canadian citizen. He recently got deported to Mexico. Can I sponsor him to Canada?
When a spousal deportation occurs the person is deported from Canada, they are barred from entering Canada, unless they obtain written permission to do so from the Canada Border Services Agency. Your husband will have to make an Application to Re-enter Canada (ARC) alongside a spousal sponsorship application. They will both have to be very carefully prepared.
Given the delicate nature of the situation, it is highly advisable that you instruct an Immigration representative with experience about the specific details of your case as every situation is different in these types of complicated matters.
Your husband can be allowed to re-enter Canada but only if first the sponsorship is approved and then if the ARC is successful. In some cases, ARC’s are not necessary depending on the type of removal from Canada (departure order, deportation etc).
