Immigration Corner | My divorce isn’t final, can I sponsor my girlfriend?

Dear Miss Powell,

I have a girlfriend in Jamaica but I’m not sure if I can sponsor her. We have been dating for over three years but have not been able to spend much time together physically. We Facetime and WhatsAp everyday. She was refused a visitor’s visa three times and I can only visit once a year. I want to sponsor her, but we wouldn’t qualify as being in a common-law relationship since we haven’t really lived together. Also, I have been in a divorce battle with my ex-wife for almost five years, but I am hoping that this will wrap up soon as my youngest is now 18. What can I do to convince the immigration authorities that we are serious about each other and that the only reason we are apart is because of my work commitments, the fact that my divorce isn’t final, and she can’t get a visitor’s visa to visit me? Can you help us?

TB

Dear TB,

You have raised several issues which could affect your ability to sponsor your international girlfriend. Although these factors are important, they do not prevent you from sponsoring her, if you are able to provide all the necessary proof that you are in a committed relationship with her.

The basic requirement is that if an individual would like to sponsor someone from another country to live permanently in Canada, he must first establish that he is a Canadian citizen or permanent resident, 18 years or older, reside in Canada or intends to return to Canada when the spouse or partner becomes a permanent resident, among other factors. There are other important factors such as: you cannot be in default of a court-ordered child or spousal support obligation, cannot be an undischarged bankrupt or receiving social assistance, except for reasons of disability. These are just a few of the bars to making a sponsorship application.

If you can qualify as a sponsor, the issue is whether you are able to satisfy the immigration authorities that you have a committed relationship with your Jamaican girlfriend and that they should recognise it such.

The qualifying spousal relationships under the immigration rules are that you will need to provide proof that you are legally married to the person being sponsored or in a common-law relationship or in a conjugal partner relationship her.

Common law Relationship

You mentioned that you do not think you qualify as being in a common-law relationship. The definition of a common-law relationship for the purposes of Canadian immigration is that the two qualifying persons need to establish that they have continuous cohabitation or lived together for a minimum of one year. That is the basic requirement. You can be separated after the minimum of one-year cohabitation exists, but you would need to have evidence that you are still in a committed relationship, in spite of the temporary separation.

An individual can be married and be in a common-law relationship with someone else, if they are separated from the married partner for the same period of the common-law relationship.

You indicated that you have been separated from your wife for more than five years and that you are involved in a lengthy divorce proceeding. The relationship with your girlfriend has been in existence for over three years but circumstances such as immigration issues and work have kept you apart. Therefore, you may be able to establish that you are in a conjugal relationship.

Conjugal Relationship

A conjugal relationship is one in which there is a significant degree of commitment and attachment between two individuals but that circumstances such as the ones described above have kept you apart. The individuals are deemed to be joined or 'yoked together'. Being joined or yoked is the literal Latin translation of the word conjugal.

The courts in Canada have interpreted such a relationship as one where there is evidence that the parties have shared shelter when they can, there is sexual relations, evidence of commitment to each other, the relationship is known by society (and displayed on social media), there is proof of economic support or shared finances and shared social activities. Your behaviour and conduct must be proof to society and family members you are acting as a couple. This proof of relationship may also be emphasised if you have shared children or have demonstrated a strong relationship with each other’s children.

There must be a genuine display that the relationship is one of permanence. You will need to clearly demonstrate that you are interdependent on each other with a clear indication of financial, social, emotional and physical commitment to one another.

You should bear in mind that absence of cohabitation is not required for couples who are unable to cohabit due to factors beyond their control.

There are many ways to prove that you have a genuine conjugal relationship and so I recommend that you consult directly with an immigration lawyer to assist you with your application.

Deidre S. Powell is an immigration lawyer with office in Ottawa, Ontario, Canada. Submit your questions and comments to info@deidrepowell.com or call 613.695.8777/ 876.922.4092. Visit her websitewww.deidrepowell.com for more information. Connect with her Facebook, Twitter and Instagram for the latest news and special offers.