Are you considering applying for a spousal sponsorship? If the spouse who is a foreign national is:
- living with you in Canada, AND
- will have to travel abroad on a fairly regular basis during the application process,
then you will have to make a choice as to which class of sponsorship you want to choose. There are two ways to apply, if you don’t have dependent children. If you do have dependent children, then there is only one choice.
Use this application when you:
- wish to sponsor a spouse or other person who lives outside Canada
- wish to sponsor a spouse or partner who lives with you in Canada but does not plan to remain in Canada during the application process
- plan to appeal if your application to sponsor is refused
- wish to sponsor your conjugal partner or dependent child (a conjugal partner is partner who is outside Canada and has lived with the sponsor for at least 1 year but was unable to live with the sponsor in Canada for some reason or other).
Spouse or Common-law Partner in Canada Class:
Use this application when:
- your spouse lives with you in Canada
- your spouse has valid immigration status in Canada (temporary residence)
- your spouse qualifies for and would like to apply for an open work permit while your application is being processed.
This means that the In-Canada Class has the additional requirement of the sponsored spouse living with the sponsor. The legal definition is continuous co-habitation, and this requires the sponsor and the sponsored spouse to live in the same place for a minimum of 1 year on a continuous basis. You cannot add up different periods of co-habitation to reach a total of 1 year. You have to live together continually for a period of at least 1 year. To prove continuous co-habitation, you should provide:
- joint rental agreement
- joint bank statements
- joint credit card statements
- utility bills
- investment statements, etc.
If you wish to apply under the Spouse or Common-law Partner in Canada Class but your sponsored spouse will need to travel on an ongoing basis then you should keep the trips as short as possible. Although the Immigration and Refugee Protection Act and Immigration and Refugee Protection Regulations (IRPA & IRPR) do not state a specific time that you can be away and still be considering to co-habit continuously, a good rule of thumb is to limit your trips to 2 weeks or less.
This is to ensure that the time spent away from your spouse is both temporary and short. IRPR section 124 states that:
124 A foreign national is a member of the spouse or common-law partner in Canada class if they
- (a) are the spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada;
- (b) have temporary resident status in Canada; and
- (c) are the subject of a sponsorship application.
In other words, you have to convince immigration authorities that you are both a spouse/common-law partner AND that you co-habit together. If your trips abroad become lengthy then you may no longer meet the legal definition of continuous co-habitation and you may be denied entry into Canada when you try to return from one of your trips, which would mean you will no longer be able to co-habit with your sponsor. That in turn means you are no longer an eligible applicant under the In-Canada Class. That’s why your trips should be 2 weeks or less during the application process. In fact, because you have the responsibility of proving to immigration authorities that you are co-habiting with your spouse, the only risk-free way is to avoid travelling abroad during your application process.
So, if you have to travel abroad fairly frequently, you should choose the overseas sponsorship option. As can be seen from the requirements listed at the beginning of this blog, you do not have to co-habit to be eligible for a Family Class sponsorship application. However, please note that if the person sponsoring the spouse is a permanent resident but not a Canadian citizen, they must remain in Canada during the application process.