Common Law Marriage in the Canadian Forces - Mega Thread

[captloadie]

The person would be deemed a common law spouse by the CF's definition, therefore any other gov't interpretation would be irrelevant.  The person met the CF rule for the benefits and no repayment would be required.

I wouldn't be so quick to jump to this conclusion. Where benefits are concerned, such as relocation, it is the TB policy that will have the last say. Last year's revelation that we weren't entitled to some benefits as they contravened TB policy is proof of this. Just because the CF thinks it is correct, and may have written policy backing certain decisions, doesn't mean at the end of the day an external organization won't look back and say we were wrong. In the Op's current province the rule is (as per Wikipedia):
In British Columbia, a person who has lived and cohabited with another person, for a period of at least two years is considered a common law spouse, unless one or both of them were married to another person during this time, according to the "Estate Administration Act".
By BC definition she cannot be common law. The same restriction is placed on declaring common law status while still married by CRA, Immigration Canada, and all other provinces that I have researched.

It would appear then that the CF regulations on common law status are less stringent. At first glance, one could say this is done to grant members entitlements (Relocation, Health, Pension, etc.) sooner, or that they would not otherwise be entitled to (in the case of not being legally divorced) if other federal or provincial regulations were applied. It would not be out of the realm of possibility that if the OP's particular case were to come up to one of the external organizations (CRA, Immigration Canada) because of perceived irregularities, pointed questions may be asked of  current CF policy.

 

[CountDC]

interesting case and I hope you keep us up to date on this. I hope it works out for you.

A point for consideration.  Common Law requires a stat dec to be completed and one of the lines on it reads:

that we have resided together for at least one year preceding the application for recognition.

As he does not have status in Canada and has to return to his home, the states, every 6 months it could be argued that you could not have resided together for a year.  You also mentioned a break up of 6 months - was that over a year ago as the one year period would be counted from when you got back together.

 

[Occam]

As he does not have status in Canada and has to return to his home, the states, every 6 months it could be argued that you could not have resided together for a year. 

Status is something determined by Citizenship and Immigration Canada, and isn't asked on the Stat Dec.  Hopping across the border, doing a U-turn and coming right back could hardly be used to say that there was an interruption to the period of cohabitation.  Hell, if you can get shacked up, and then one of the couple gets deployed, the 12 month clock doesn't stop counting as long as you still meet the rest of the requirements of the QR&O.

 

[Blackadder1916]

. . . . . .

It would appear then that the CF regulations on common law status are less stringent. At first glance, one could say this is done to grant members entitlements (Relocation, Health, Pension, etc.) sooner, or that they would not otherwise be entitled to (in the case of not being legally divorced) if other federal or provincial regulations were applied. It would not be out of the realm of possibility that if the OP's particular case were to come up to one of the external organizations (CRA, Immigration Canada) because of perceived irregularities, pointed questions may be asked of  current CF policy.

I could reply with a sarcastic "have you read any of the other posts in this thread", but I'm much too nice a guy for that.  The recognition of a common-law relationship by the CF is only for the purpose of the National Defence Act.  It has no bearing on the administration of any other law or regulation by any other federal or provincial government agency (slight correction - it 'may' have some bearing when the other law/regulation is applied to an individual whose only connection to the other law/reg is because of status conferred by the NDA).  That being said, the conditions set for recognition of a common-law relationship by all the agencies falling under federal jurisdiction is consistent (and always has been).  Whether the 'interpretation' of those conditions is consistent  (and enforcement of the laws/regulations pertaining) across all federal departments is another matter.  There is no "irregularity" in the CF definition of common-law.  When the major amendments to that particular QR&O was made (as noted in the differences between the current version v. the circa mid-90s version posted in this thread) similar changes were made to those definitions used by other federal agencies.  As open to interpretation (IMO) as this particular QR&O is (and probably many others) they are not conceived in a vacuum.  Nothing gets published in QR&Os without being vetted by the lawyers (of course I've never accused lawyers of being infallible).

There are two separate and distinct issues raised by the OP's question with regards to common-law recognition.  There is no connection between the CF's recognition for any purposes under it's purview and the requirements of CIC for immigration purposes.

As this question interested me, I posed the circumstances to an acquaintance who worked for immigration.  Though the examination of potential sponsors/immigrants is no longer part of his job, he did inform me that there had been a change a few years ago pertaining to this issue.  At one time recognition of common-law status for the purpose of sponsoring a "Spouse or Common-law Partner in Canada" class of applicant was only given when the foreign national partner was legally in Canada under a student or temporary worker visa (foreigners who can legally be in Canada continually for more than a year).  This has changed in that someone who has overstayed a visitor's visa and has been co-habiting conjugally for more than a year "may" be considered in the same class.  There are a number of other conditions that also have to be met.

When I presented the situation as per the OP (American partner, multiple year relationship, most financial items conjoined, partner frequently returns to USA for employment ,etc), he opined that the common-law relationship "could possibly in some cases depending on the officer examining" be recognized by CIC.  One particular factor that could be a bar to recognition is the frequent returns to the country of origin without the Canadian partner also moving.  He noted that by going back to the USA and returning to Canada, the individual may have been in Canada legally when he was here, but he also likely kept restarting the clock on the one year co-habitation requirement.

What does this have to do with the CF recognizing a common-law relationship?  Absolutely nothing!  However, my expectation would be (if this situation was examined by CF authorities) that a similar view would be held - that leaving Canada without the Canadian partner would restart the clock.

 

[McG]

I wouldn't be so quick to jump to this conclusion. Where benefits are concerned, such as relocation, it is the TB policy that will have the last say. Last year's revelation that we weren't entitled to some benefits as they contravened TB policy is proof of this.

The example you point to is more complicated than you make it out.  Within DND, the hierarchy of policies sees approved DND policy as overriding TB policy.  That is because both policies have to go to the same heights of government for approval, and at those heights, unique policies can be approved for DND to cover the department's unique requirements.  The benefits fiasco from last year was the result of practices that were sanctioned neither by TB nor DND approved policies.  Some of the practices were the result of CANFORGENS (CDS authority as opposed to TB & Cabinet) and others were the DCBA aide-memoire (the work of an NDHQ Col's subordinate).

QR&O are approved from high enough above the department that they will not be overturned by conflict with the policy of another department.

 

[J.J]

Regardless what DND policy is the person that authorized and/or arranged the entry and movement of a person without legal status in Canada would be subject to criminal charges. I doubt a CO would take that chance.

 

[McG]

Regardless what DND policy is the person that authorized and/or arranged the entry and movement of a person without legal status in Canada would be subject to criminal charges. I doubt a CO would take that chance.

The CO is taking no "chance" by recognizing the common law status.  Such recognition does not "authorize entry" into the country.  There are plenty of guys who gain recognition of common law status while living abroad.  The responsibility is on the member and the common law spouse to gain the legal approvals to enter and reside within the country.

 

[J.J]

If a person or organization transports someones belongings when that person has no status and/or assists them entry into Canada is committing a criminal act.
Would DND transport stolen property? How about a grow op?

 

[Fishbone Jones]

Lots of semantics and grade level word play going on in this thread.

Lots of barrack room lawyering.

I'm just going to side with the guy that does immigration for a living.

 

[McG]

If a person or organization transports someones belongings when that person has no status and/or assists them entry into Canada is committing a criminal act.
Would DND transport stolen property? How about a grow op?

Granting of common law status does not invite anyone into the country.  You are ascribing permissions into the recognition that do not exist.

Let's look at it this way - common law status is being granted to service members living outside the country.  It happened in the past, it is happening now, and it will continue to happen.  The sky is not falling and nobody is going to jail.  The responsibility is still on the member and common law spouse to sort out all the other approvals required for gaining entry to the country.  Precedent is in disagreement with your conclusion.

Does DND have mechanisms in place to ensure that moves into the country don't happen unless those entry approvals are in place?  I don't know.  If you care, you can investigate the relocation policies.  At the same time, you can investigate your stolen property question and see if the move policies require service members to provide proof of ownership for vehicles and other property that is transported during a posting.  Regardless of the answers you come to, this issue is separate from the recognition of common law status because granting of common law status does not grant anyone access into the country.

 

[J.J]

Other than offence under IRPA as I already quoted, there are service offences for breaking laws for other Acts of Parliament. The CF is not immune from them and the head in the sand defense would not work.
The Criminal Investigations arm of CBSA would care less what the DND policies are, they only care what legislation says.

http://www.admfincs-smafinsm.forces.gc.ca/qro-orf/vol-02/doc/chapter-chapitre-103.pdf

103.61 – OFFENCES AGAINST OTHER
CANADIAN LAW
103.61 – INFRACTIONS À D’AUTRES LOIS DU
CANADA 
(1) Section 130 of the National Defence Act provides: 
(2)   “130. (1) An act or omission 
(a) that takes place in Canada and is punishable
under Part VII, the Criminal Code or any other Act
of Parliament, or
(b) that takes place outside Canada and would, if it
had taken place in Canada, be punishable under Part
VII, the  Criminal Code or any other Act of
Parliament, is an offence under this Part and every person convicted
thereof is liable to suffer punishment as provided in
subsection (2).
  (2) Subject to subsection (3), where a service tribunal
convicts a person under subsection (1), the service
tribunal shall,
(a) if the conviction was in respect of an offence  a
(i) committed in Canada under Part VII, the
Criminal Code or any other Act of Parliament and
for which a minimum punishment is prescribed,
or
(ii) committed outside Canada under section
235 of the Criminal Code,
impose a punishment in accordance with the
enactment prescribing the minimum punishment for
the offence; or
(b) in any other case
(i) impose the punishment prescribed for the
offence by Part VII, the  Criminal Code or that
other Act, or
(ii) impose dismissal  with disgrace from Her
Majesty’s service or less punishment.
  (3) All provisions of the Code of Service Discipline
in respect of a punishment of imprisonment for life, for
two years or more or for less than two years, and a fine,
apply in respect of punishments imposed under
paragraph (2)(a) or subparagraph (2)(b)(i).
  (4)  Nothing in this section is in derogation of the
authority conferred by other sections of the Code of
Service Discipline to charge, deal with and try a person
alleged to have committed any offence set out in
sections 73 to 129 and to impose the punishment for
that offence described in the section prescribing that
offence.”

 

[Occam]

How's this - I've claimed common law while in the CF.  Twice.

Neither time did the CO (and they were different COs at different units) or anyone else ever ask what nationality my spouse was.  Why?  I'm willing to bet it's because they weren't required to under the QR&O.  I'm also willing to bet that particular QR&O got particularly close scrutiny by AJAG when it was amended due to the other clauses that it used to contain.

If checking that the prospective spouse was legally allowed to reside in Canada was such an important requirement, why was it stricken from the revised QR&O?  Would seem to be a legal oversight of immense proportions, if you ask me.

 

[McG]

I too am aware of Sect 130 of the NDA.  In fact, I have used it.  Your reference to it is about as illogical as suggesting that since it is illegal to shoot someone with a gun it is also illegal to allow a service member to own a gun.

Granting of common law status does not grant/authorize entry into this country.

Recognizing common law status does nothing illegal.  The QR&O requirement for the partner to be eligible for legal entry into Canada would not have been dropped if somehow this would have opened a magical door for entry.

 

[J.J]

I will concede that common law status does not grant you legal status in Canada, but completing a Statutory declaration that you have been living in Canada for 1 yr, without status is a confession to a criminal offence. The penalty is generally deportation, possibly jail and there is nothing that can help you at then to live in Canada.

The world I live in says that legislation always trumps policy. We are living in two different worlds.

I give up....a smart man told me once to stop pissing into the wind

 

[PMedMoe]

I will concede that common law status does not grant you legal status in Canada, but completing a Statutory declaration that you have been living in Canada for 1 yr, without status

Just curious, does it ask on the Stat Dec if you've been "living in the country for a year without status", or if you have been in cohabitation with the person in question?

Who cares if someone has to leave once every six months?  Do you really think that changes the status?  If that's the case, I guess I'm divorced.

 

[J.J]

Just curious, does it ask on the Stat Dec if you've been "living in the country for a year without status", or if you have been in cohabitation with the person in question?

Who cares if someone has to leave once every six months? Do you really think that changes the status?  If that's the case, I guess I'm divorced.

The discussion is concerning immigration issues, not with someone who has status or is a citizen. You don't have a problem with illegal immigration?
FYI the 6moths thing is for someone visiting Canada and intending to leave. It is different for someone who lacks ties or roots in their home country.

It is interesting on the dynamics out here some days. If I was to argue aspects concerning Preventative Medicine or Naval traditions, I would get told to STFU and stay in my lanes, but there seems to be several "experts" and "barracks room lawyers: when it comes to immigration issues....

 

[McG]

The world I live in says that legislation always trumps policy. We are living in two different worlds.

No.  Legislation does always trump policy.

You will note that I have not commented specifically on the OPs scenario, and that is because there are too many information voids for me to do so.

Where you and I have disagreed has simply been on the issue of the CO's recognition of common law status being an act that authorized and/or arranged the entry and movement of a person without legal status in Canada and as such opening the CO to criminal or NDA prosecution.  I think we agree now that such is not the case.

 

[McG]

FYI the 6moths thing is for someone visiting Canada and intending to leave.

Is there a defined period of time that such a person must remain outside Canada before returning?

 

[J.J]

There is no defined time, but it is a bit complicated and a bit Opsec, but I will use an example;

If your parent was from the US, owns a home in the US, has a job or means of income they can stay here up to 6 months. Where it gets confusing is if the parent does a turn around, they cross back into the US and immediately returns to Canada, in essence resetting the "6 month clock". At that point the officer at the border can refuse the person entry because they believe they may be living here, they can allow entry with conditions or they can give a specific amount of time (ie 2 weeks) and they must report upon exit.
The same parents has no job or no permanent residence wants to visit for the day the same conditions as above could apply.g

IRPA has a regulatory and a criminal component and can be used simultaneously. The regulatory portion has a lot of leeway for the officer at the border and their decisions can affect any future immigration issues.

 

[cupper]

I know when leaving the US, the minimum period is 24 hours, but the clock resets as soon as you leave. I believe the same requirement hold for leaving Canada, but don't hold me to that.

The fun part is how do you prove that you were actually out of the country for that period of time, or how can they verify that you were not out for the minimum period.

Unless you actually check in with the agent at the border as you leave, they really have no way of verifying (for land crossings anyway). I know every time I drive back to Canada, I just cruise past the US border inspection station, and pull into the Canadian border line-up. And when I come back to the US, they ask how long I was out, the day I left, but I've never been asked to verify.