Canadian immigration law allows Canadian citizens and permanent residents to sponsor their common-law partners.

It requires that:

  • people in relationships who have not married to have cohabited together for at least one year in a conjugal relationship;
  • that the cohabitation during that year be continuous rather than intermittent cohabitation adding up to one year;
  • that the relationship be genuine; and
  • that the relationship not be entered into to acquire an immigration benefit.

While cohabitation means living together continuously, short periods of separation due to work, business travel, family obligations, etc., are permitted.

After the one-year period of cohabitation has been established, the partners may live apart for periods of time without legally breaking the cohabitation, provided that there is evidence that both parties are continuing the relationship. In Chantladze v. Canada (Citizenship and Immigration), 2018 FC 771, Justice Fothergill stated that it was a reviewable error for an officer to consider the reasons why a couple had lived apart after they had previously lived together for one year continuously.

As the Immigration, Refugees and Citizenship Canada guidelines note:

“According to case law, the definition of a 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 while still maintaining a common-law relationship. For example, a couple may have been separated due to illness or death of a family member, adverse country conditions (e.g. war, political unrest), or employment or education-related reasons, and therefore are not cohabiting at the time an application is submitted. Despite the break in cohabitation, a common-law 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.

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Regulation 220.1(1) of the Immigration and Refugee Protection Regulations provides that the holder of a study permit in Canada (a) shall enroll at a designated learning institution and remain enrolled at a designated learning institution until they complete their studies and (b) shall actively pursue their course or program of study.

Non-compliance with this requirement can, subject to certain exceptions that are beyond the scope of this post, result in a person being barred from Canada for one year.

The Immigration, Refugees and Citizenship Canada (“IRCC“) website contains guidelines (the “Guidelines”) on interpreting these requirements.

The guidelines are divided into the following sections:

I have reproduced or paraphrased much of the Guidelines below.

A. Full-time and part-time studies

The Guidelines state that at a minimum, students must have part-time status with their institution to be considered to be actively pursuing their studies.

The definition of full-time or part-time varies depending on the educational institution.

Furthermore, the province of Quebec requires students to maintain full-time status with their institution to be considered to be actively pursuing their studies.

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On December 30, 2018 the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (the “CPTPP“) came into effect.  The CPTPP will result in it being easier for citizens of countries that have ratified the CPTPP to work in Canada.  As of writing, these countries include Australia, Japan, Mexico, New Zealand, Singapore and Vietnam.

The benefits are not the same, however, for all countries.

The categories are:

  • Business Visitors;
  • After – Sales Services;
  • Investors;
  • Intra-Corporate Transferees; and
  • Professionals.

Business Visitors

The Business Visitors category applies to all countries that have ratified the CPTPP.  As well, permanent residents of Australia and permanent residents of New Zealand may also qualify under this category.

Activities that Business Visitors may perform include:

After-Sales Service

The CPTPP’s After-Sales Service provisions apply to citizens of Australia, Mexico and New Zealand.

Personnel who possess specialized knowledge essential to a seller’s or lessor’s contractual obligation (such as installers, repairers and maintenance personnel, and supervisors) may enter Canada for the purpose of performing services and training workers to perform services pursuant to a warranty (during the life of the warranty) or other service contract incidentals (during the life of the service agreement)

These activities come from the sale or lease of commercial or industrial equipment or machinery (including computer software) that has been purchased or leased from an enterprise located in a party other than Canada.

 » Read more about: Work Permits Under the CPTPP  »

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Given the frequency with which Immigration, Refugees and Citizenship Canada (“IRCC“) updates its checklists, forms and website
it is not surprising that people often find some of IRCC’s content to be
unclear.

The Federal Court of Canada, citing rule of law principles, has stated that where IRCC content is objectively unclear that flexibility is required. In Lim v. Canada (Minister of Citizenship and Immigration), 2005 FC 657, Justice von Finkenstein stated that:

The actions of CIC in this instance lack common sense. As Muldoon J. so aptly put it in Taei v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 293 (dealing with a refugee claim rather than a live-in caregiver) “(t)he rule of law does not require that statutes be read and interpreted in a robotic mindless manner. Common sense has not been abolished either by the Charter or by statute”. It is also useful to recall the admonition of Jerome A.C.J. in Thakorlal Hajariwala v. M.E.I. [1989] 2 F.C. 79 that ” the purpose of the statute [then the Immigration Act which is now the Immigration and Refugee Protection Act] is to permit immigration, not to prevent it.”

In Jalota v. Canada (Citizenship and Immigration), 2013 FC 1176, Justice Phelan criticized IRCC for refusing a restoration of student status application because the applicant did not provide financial documents, even though the checklist did not mention such a requirement.  Justice Phelan stated:

The Respondent’s own checklist does not ask for any financial information per se as part of a restoration application, although it is listed as a requirement for study permit applications. For restoration applications,

 » Read more about: Unclear Forms and Checklists  »

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