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Old Jan 30th 2003, 1:25 pm   #1
Arrn
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Default Conjugal partner, Common-law and Same sex partners

Would you please explain what is the difference between Conjugal partner,
common-law and same sex partners? Will appreciate your help.
 
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Old Jan 30th 2003, 2:36 pm   #2
Andrew Miller
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Default Re: Conjugal partner, Common-law and Same sex partners

New law doesn't make any distinction between same and opposite sex partners.
Please see below relevant portions of Immigration Manual dealing with
conjugal partners and common-law spouses and partners:

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5.22 Characteristics of conjugal relationships that apply to married,
common-law and conjugal partner relationships

The term "conjugal" was originally used to describe marriage. Over the
years, the term has expanded to describe "marriage-like" relationships,
i.e., common-law opposite-sex couples. More recently the term was expanded
further to describe common-law same-sex couples in the M. v. H. Supreme
Court decision in 1999.

The word "conjugal" does not mean "sexual relations" alone. It signifies
that there is a significant degree of attachment between two partners. The
word "conjugal" comes from two Latin words, one meaning "join" and the other
meaning "yoke", thus, literally, the term means "joined together" or "yoked
together".

The following characteristics should be present in all conjugal
relationships, married and unmarried:

- mutual commitment to a shared life;

- exclusive - cannot be in more than one conjugal relationship at a time;

- intimate - commitment to sexual exclusivity;

- interdependent - physically, emotionally, financially, socially;

- permanent - long-term, genuine and continuing relationship;

- present themselves as a couple ("here's my other half");

- regarded by others as partners;

- caring for children together (if there are children).


5.23 Assessment of conjugal relationships

The following are key elements that officers may use to establish whether a
couple is in a conjugal relationship:

a) Mutual commitment to a shared life to the exclusion of all other
conjugal relationships:

A conjugal relationship is characterized by mutual commitment, exclusivity,
and interdependence and therefore cannot exist among more than two people
simultaneously. For example, a person cannot have a conjugal relationship
with a legally married spouse and another person at the same time.

Nor can a person have a conjugal relationship with two unmarried partners at
the same time. These would be polygamous-like relationships and cannot be
considered conjugal. Excluded relationships, including polygamy, are
addressed in R117(9). This does not, however, require that an individual in
an unmarried conjugal relationship be divorced from a legally married
spouse. See: What happens if the principal applicant is married to another
person, [section 5.36].

b) Interdependent - physically, emotionally, financially, socially:

The two individuals in a conjugal relationship are interdependent - they
have combined their affairs both economically and socially. The assessment
of whether two individuals are in a conjugal relationship should focus on
evidence of interdependency.

The following list is a set of elements which, when taken together or in
various combinations, may constitute evidence of interdependency. Keep in
mind that these elements may be present in varying degrees and not all are
necessary for a relationship to be bona fide.

** Financial aspects of the relationship:

- Joint loan agreements for real estate, cars, major household appliances;

- Joint ownership of property, other durable goods;

- Operation of joint bank accounts, joint credit cards - evidence that any
such accounts have existed for a reasonable period of time;

- The extent of any pooling of financial resources, especially in relation
to major financial commitments; Whether one party owes any legal obligation
in respect of the other.


** Social aspects of the relationship

- Evidence that the relationship has been declared to government bodies and
commercial or public institutions or authorities and acceptance of such
declarations by any such bodies;

- Joint membership in organizations or groups, joint participation in
sporting, cultural, social or other activities;

- Joint travel;

- Shared values with respect to how a household should be managed;

- Shared responsibility for children; shared values with respect to
child-rearing; willingness to care for the partner's children;

- Testimonials by parents, family members, relatives or friends and other
interested parties about the nature of the relationship and whether the
couple present themselves to others as partners. Statements in the form of
statutory declarations are preferred.


** Physical and emotional aspects of the relationship -the degree of
commitment as evidenced by:

- Knowledge of each other's personal circumstances, background and family
situation;

- Shared values and interests;

- Expressed intention that the relationship will be long term;

- The extent to which the parties have combined their affairs, for example,
are they beneficiaries of one another's insurance plans, pensions, etc.?

- Support for each other when ill and on special occasions - letters, cards,
gifts, time off work to care for other;

- The terms of the parties' wills - wills made out in each other's favour
provide some evidence of an intention that the relationship is long term and
permanent;

- Time spent together;

- Time spent with one another's families.


*** Examples of supporting documents:

- Family memberships, medical plans, documentation from institutions that
provides recognition as a couple;

- Marriage certificate, wedding invitations, commitment ceremony
(certificate, invitations), domestic partnership certificate;

- joint ownership of possessions, joint utility bills, lease/rental
agreement, joint mortgage/loan, property title, joint bank statements;

- documents showing travel together, long distance phone bills;

- insurance policies (documents naming the partner as a beneficiary), wills,
powers of attorney;

- significant photographs;

- statements of support from families, bank manager, employers, financial
professionals, religious leaders, community leaders, professors, teachers or
medical professionals.

The above elements may be present in varying degrees and not all are
necessary for a relationship to be considered conjugal. Whether an element
is present may depend on the culture or preferences of the couple. For
example, in some cultures, women have a limited role in the management of
the family finances; thus there may not be joint ownership of property or
joint bank accounts. Some couples may choose to keep aspects of their
financial affairs separate and yet are clearly in a conjugal relationship
and have merged their affairs in other respects.

Officers should consider each relationship individually and take into
account any other relevant information provided by the applicant (or
information otherwise available to the officer), in order to assess whether
a conjugal relationship exists.

Officers should also take into account to what extent the laws and/or
traditions of the applicant's home country may discourage the parties from
openly admitting the existence of the relationship.

--------------------------------

5.32 Recognition of a common-law relationship

A common-law relationship is fact-based and exists from the day in which two
individuals demonstrate that the relationship exists on the basis of the
facts. The onus is on the applicants to prove that they are in a conjugal
relationship and that they are cohabiting.

A common-law relationship is legally a de facto relationship, meaning that
it must be established in each individual case, on the facts. This is in
contrast to a marriage, which is legally a de jure relationship, meaning
that it has been established in law.

---------------------------

5.33 What is cohabitation?

Cohabitation means living together in one home. Common-law partners must
have ordinarily cohabited for a period of at least one year. They should
have lived together in one home for most of at least one year, although from
time to time, one or the other may have left the home for work or business
travel, family obligations, and so on.

The following is a list of indicators about the nature of the household
which constitute evidence that a couple in a conjugal relationship is
cohabiting:

- Joint bank accounts and/or credit cards;

- Joint ownership of residential property;

- Joint residential leases;

- Joint rental receipts;

- Joint utilities accounts (electricity, gas, telephone);

- Joint management of household expenditures;

- Evidence of joint purchases, especially for household items;

- Correspondence addressed to either or both parties at the same address;

- Important documents of both parties show the same address, e.g.,
identification documents, driver's licenses, insurance polices, etc.;

- Shared responsibility for household management, household chores, etc.;

- Evidence of children of one or both partners residing with the couple;

- Telephone calls.

These elements may be present in varying degrees and not all are necessary
to prove cohabitation. This list is not exhaustive; other evidence may be
taken into consideration.


5.34 How can someone in Canada sponsor a common-law partner from outside
Canada when the definition says "is cohabiting"?

According to case law, the definition of 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 without legally breaking the cohabitation. For example, a
couple may have been separated due to armed conflict, illness of a family
member, or for employment or education-related reasons, and therefore do not
cohabit at present. Despite the break in cohabitation, a common-law
relationship exists if the couple has cohabited in a conjugal relationship
in the past for at least one year and intend to do so again as soon as
possible. There should be evidence demonstrating that both parties are
continuing the relationship, such as visits, correspondence, and telephone
calls.

This situation is similar to a marriage where the parties are temporarily
separated or not cohabiting for a variety of reasons, but still considers
themselves to be married and living in a conjugal relationship with their
spouse with the intention of living together as soon as possible.

For common-law relationships (and marriage), the longer the period of
separation without any cohabitation, the more difficult it is to establish
that the common-law relationship (or marriage) still exists.

-------------------------------

5.42 What is a conjugal partner?

The conjugal partner category applies only to the family class and only to a
foreign national sponsored by a Canadian citizen or permanent resident
living in Canada. This category does not apply to the Spouse and Common-law
Partner in Canada class.

This category allows a Canadian citizen or permanent resident to sponsor a
foreign partner with whom they are in a bona fide conjugal relationship but
with whom they have been unable to cohabit, usually because they were unable
to obtain visas to live together in one another's countries.

Because the partner has not been able to live with the Canadian resident
continuously for at least one year, the partner does not meet the definition
of "common-law partner".

Conjugal partners are exempt from meeting the LICO requirements and the
excessive medical demand criteria. There are no conditions attached to their
permanent resident visas. As members of the family class, they have appeal
rights.

A conjugal partner is not a common-law partner under Canadian law because
the one-year cohabitation requirement has not been met. Applicants should be
counselled that they and their partner will not be considered to be in a
common-law partnership for purposes of other federal benefits and
obligations until they have lived together in Canada for one year. The
applicant's Confirmation of Permanent Residence form will not indicate their
marital status as "conjugal partner" since this is not a legal status in
Canada.

Note: A Canadian citizen residing abroad may sponsor a conjugal partner
provided that the sponsor and applicant will reside together in Canada when
the applicant becomes a permanent resident [R130(2)]


5.43 Assessment of conjugal partner relationships

Officers must determine whether the parties are in a conjugal relationship
(see Assessment of conjugal relationships, [section 5.23]). Conjugal
partners are similar to common-law partners; however, they have not yet
merged their households to the same extent, as they have not been able to
cohabit continuously and permanently. Despite this, they must have
established a long-standing, interdependent attachment and have combined
their affairs to the extent possible.

Without continuous cohabitation and the combining of affairs that takes
place when a couple in a conjugal relationship cohabit, conjugal partner
relationships are more challenging to assess than common-law relationships.
The following list provides some additional elements to consider when
assessing such relationships:

** Length of time relationship has existed

Because a conjugal relationship means interdependency, mutual commitment and
exclusivity, such a relationship is not established when two people meet or
when they start to date or even necessarily when they begin a sexual
relationship. Establishing a conjugal relationship takes a period of time.

Visa officers must assess the facts of each case individually; however, in
general terms, most conjugal partners will likely have known one another for
more than one year.

** Amount of time spent together

The amount of time the partners have spent together. Evidence of time spent
together may take the form of airline tickets, receipts from vacations,
visas, passports, leave forms from work etc.

** Reasons why couple has been unable to cohabit continuously for one year

The applicant should be able to explain why the couple has not been able to
cohabit continuously for one year. For example, there may be legal
impediments to a common country of residence. The partners might not have
been able to obtain long stay visas or immigrant visas for one another's
countries. If they could have lived together, but chose not to, then it is
reasonable for the visa officer to question the nature of the relationship
and its bona fides.

** Evidence showing how the long-distance relationship has been maintained

The volume and style of the communication between partners should be
considered, e.g., long distance calls and other communication, letters,
recognition of each other's significant events, etc.

** Evidence of efforts to live in the same country

Airline tickets, visas, visa denials.

--------------------------

5.46 Internet relationships

An Internet relationship alone without other convincing evidence that the
couple has established and maintained a conjugal relationship for at least
one year and spent time together, will raise serious concerns as to whether
a conjugal relationship exists. Conjugality should be assessed based on the
elements of interdependency as set out in [section 5.23].
----------------------------------------------------------------------------
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--

../..

Andrew Miller
Immigration Consultant
Vancouver, British Columbia
email: AndrewMillerREMOVE@REMOVEcanada.com
(delete REMOVE from the above address before sending email)

For confidential phone consultation go here:

http://members.yahoo.liveadvice.com/andrewmiller_canada
________________________________


"Arrn" wrote in message
news:1Ba_9.144538$sV3.5630396@news3.calgary.shaw.ca...
    > Would you please explain what is the difference between Conjugal partner,
    > common-law and same sex partners? Will appreciate your help.
 
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