Common Law Marriage in the Canadian Forces - Mega Thread

[SupersonicMax]

WR,

You are talking about a very, very remote possibility.  Common Law with an american in a city close to the border is much, much more likely.  A bit of common sense perhaps?

 

[J.J]

I did state it is an extreme example, but Occam is stating the CF will commit an illegal act because it is not in the policy.

 

[Occam]

I did state it is an extreme example, but Occam is stating the CF will commit an illegal act because it is not in the policy.

I said nothing of the sort.  It is you making that claim, not I.

I said the CF doesn't require its members to prove the immigration status of prospective common law partners for the purposes of obtaining CF benefits, and hasn't for at least the last ten years.

Your example would necessitate that the prospective common law spouse would have to board a civilian aircraft to come to Canada, since that is how someone who is posted to a Canadian embassy would be travelling if they were in the middle of a relocation move.  I suspect that Citizenship and Immigration Canada is going to have something to say about that when they show up at a Canadian airport, assuming they even get that far.

The CF quite clearly decided at the turn of the century that they weren't going to get involved in immigration law when it comes to common law relationships, and so removed the clause requiring someone to prove they were legally authorized to reside here.

 

[Blackadder1916]

Now you're just being silly.  How many times now has it been said that the QR&O dealing with common law status is for the purposes of CF benefits only?  Blackadder1916 put it pretty clearly:

The CF recognition of common-law relationships is only for purposes deriving from the National Defence Act and thus in turn providing eligibility for benefits and such that are affected by having a spouse or spouse-like substitute.  That CF recognition does not convey any concurrent recognition of a common-law relationship for any other purpose that may be outlined in other legislation or regulation or is in the purview of any other entity (federal, provincial, municipal, band, tribe, gang, congregation or rabble).

I wouldn't use my quote as a partial defence of your position.  In my opinion, while the CF recognition of common-law relationships is limited to things deriving from the NDA, the interpretation of that article should probably be similiar to interpretation by immigration authorities.  In that case because the immigration status of the non-Canadian partner precludes him from "living" in Canada (technically he's just visiting) he would probably not be considered a "common-law partner" but a "conjugal partner".  Under immigration rules he might be treated the same (whether he is violating other aspects of immigation law is another matter) but for regulation purposes they are different.  The CF does not have a category of "conjugal partners", there is only "common-law" and in my opinion, he doesn't fit. 

The amendments to that particular QR&O was in response to a number of issues, e.g. same sex relationships being recognized by both the CF and Immigration Canada, changes in immigration regulations that included common-law partners in the family category of sponsorships.  Back in the "old days" a soldier could not legally establish a common-law relationship while serving (and residing) on foreign soil because no Canadian could establish a common-law relationship in similar circumstances and then bring back that partner in the same manner as a legal wife/husband.  Now, any Canadian living overseas can shack up for a year and then try to bring the partner home without having to get that pesky piece of paper.

My suggestion to the OP, if/when she enrolls and is asked about her marital status is to provide a complete and truthful explanation of her relationship circumstances.  It will probably spark a likewise debate in the recruiting centre and the question will likely be referred to a higher authority for a ruling.  Doing anything else would (in my opinion) be an attempt to deceive.

 

[fauntania]

I don't understand how there can even be an immigration category for "common law spouse" which requires you to be cohabiting for a period of at least a year, if its not okay for him to be living here under the same roof with me.  How does that make any sense at all?  If its not legally possible under immigration law to BE common law, then why would the category even exist?

I am swearing in January 19, and the situation will be made crystal clear to the CF.  I do not believe in anything less.  I have every intention of dissolving my former marriage which collapsed five and a half years ago.  We also have every intention of getting married once that is done, and filing all necessary paperwork for his status as a legal Canadian immigrant.

 

[Occam]

I don't have a position on the issue, other than to state that the current QR&O 1.075 does not require a CO to obtain proof that a prospective common law spouse is legally authorized to reside in Canada.  I posted Blackadder1916's passage because it accurately describes what the QR&O is granting - access to CF benefits.  Being deemed in a common law relationship under QR&O 1.075 doesn't confer any additional privileges than CF benefits.

QR&O 1.075 has no bearing on immigration law whatsoever.  I'm sure Citizenship and Immigration Canada would have a pretty good giggle if you tried to use QR&O 1.075 as substantiation to try and bring a spouse into the country (from the USA or otherwise) as a legal immigrant. 

 

[Blackadder1916]

I don't understand how there can even be an immigration category for "common law spouse" which requires you to be cohabiting for a period of at least a year, if its not okay for him to be living here under the same roof with me.  How does that make any sense at all?  If its not legally possible under immigration law to BE common law, then why would the category even exist?

I am swearing in January 19, and the situation will be made crystal clear to the CF.  I do not believe in anything less.  I have every intention of dissolving my former marriage which collapsed five and a half years ago.  We also have every intention of getting married once that is done, and filing all necessary paperwork for his status as a legal Canadian immigrant.

Because a likely scenario (and expectation by immigration aurthorities) is that the co-habitation occurs outside Canada.

 

[Pusser]

One of the things that is clouding the issue is the relative ease with which Americans and Canadians can physically live in the other country.  As long as one returns to one's country of citizenship approximately every six months, then one never needs to obtain landed immigrant status to "live" in Canada or a Green Card in the United States (obtaining legal employment in the other country and dealing with taxes, medical care, etc are an entirely different matter, though).

However, this does not mean that you are actually "living" in the other country.  The fact remains that unless you are a citizen or landed immigrant, you are only visiting Canada and have to leave after six months (at which point you can immediately return).  How can you cohabitate with someone in a country, if you're just visiting that country?  Does the CF investigate immigration status for applications for common-law status?  No, no more than the Mounties or CBSA go around checking for Americans who've overstayed the six month limit.  However, if a CO is aware that something is a little off, he should be asking questions (particularly of the local AJAG).  i suspect that the AJAG would be reluctant to support the granting of common-law status to a couple where one member is not a legal resident of Canada, especially when it would involve the expenditure of public funds (derived from tax revenues to which the visitor does not contribute because he/she cannot legally work in Canada).

 

[fauntania]

Excellent point, Pusser.  It would seem that this is definitely a potential issue, and it would probably be in our best interests to get the necessary paperwork underway in order to bring him to legal immigrant status.

Thank you, everyone, for your opinions and advice on this matter.  It is much appreciated.

 

[cupper]

Further to Pusser's point, be aware that if in the future it was determined that your common-law spouse was indeed not legally allowed in the country, thereby negating the common law status in view of Immigration, Rev Can, etc, the CF may try and recoup any expenditures paid out for benefits for which you were deemed not entitled.

 

[SupersonicMax]

My understanding is that CF Common Law status has nothing to do with Revenue or Immigration Canada Common Law status. 

 

[Occam]

My understanding is that CF Common Law status has nothing to do with Revenue or Immigration Canada Common Law status.

I wouldn't bother, Max.  Everyone seems caught up trying to apply other government departments' definitions to QR&Os.  The applicable QR&O simply says "cohabiting", which likely has completely different meanings depending on which gov't department you ask, and at which level (federal, provincial or municipal).  Hell, the provinces can't even agree on the definition of "cohabiting" - and common law relationships/marriages are a provincial matter.  The only definition that matters here is the one that DND chooses to use - and since the rather explicit reference to being legally authorized to reside in Canada got binned with a past revision of the QR&O, I just don't see how anyone could be expected to meet it. 

That said, the advice given to the OP to get the matter sorted out legally sooner than later will negate the need for a CO to even have to consider this issue.

 

[cupper]

My understanding is that CF Common Law status has nothing to do with Revenue or Immigration Canada Common Law status.

The point I'm making is that if the person was deemed not to be a common law spouse (by whatever measure is used), the CF would be entitled to recover any costs incurred from providing benefits that the person was not entitled to receive.

 

[cupper]

Just to throw it out there, now that Canada recognizes same sex marriage, does part a) of 1.075 still apply?

A commanding officer may, upon application by an officer or
    non-commissioned member in the manner prescribed in orders issued by
    the Chief of the Defence Staff, recognize the member's common-law
    relationship where the member establishes by affidavit or statutory
    declaration signed by both persons in the relationship that they:

    (a)  are of opposite sexes;

    (b)  are not prevented by law, for any reason other than one or both
          of them being legally married, from entering into a legal
          marriage in Canada;

    (c)  have resided together as husband and wife continuously for at
          least one year immediately preceding the application or, if a
          child has been born to them, are residing together as husband and
          wife with the child;

    (d)  undertake to hold each other out as husband and wife

 

[Occam]

Just to throw it out there, now that Canada recognizes same sex marriage, does part a) of 1.075 still apply?

Ugh....go back and read the post again, paying particular attention to the big red bold letters I put underneath.

If you want a current version of QR&O 1.075, see the link partway down the page here - http://www.cmp-cpm.forces.gc.ca/pd/pi-ip/15-06-eng.asp

 

[Occam]

The point I'm making is that if the person was deemed not to be a common law spouse (by whatever measure is used), the CF would be entitled to recover any costs incurred from providing benefits that the person was not entitled to receive.

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.

 

[cupper]

Ugh....go back and read the post again, paying particular attention to the big red bold letters I put underneath.

If you want a current version of QR&O 1.075, see the link partway down the page here - http://www.cmp-cpm.forces.gc.ca/pd/pi-ip/15-06-eng.asp

:sorry:

I didn't realize that the same sex issue was covered in the more recent revisions.

My Bad!

 

[Occam]

:sorry:

I didn't realize that the same sex issue was covered in the more recent revisions.

My Bad!

No worries.  I knew there would be a risk that posting a seriously outdated QR&O could result in someone interpreting it as current policy, but I didn't think it would happen this quickly...  ;D

If you look at the old one I posted and compare it to the current, you'll see it got completely overhauled.

 

[cupper]

No worries.  I knew there would be a risk that posting a seriously outdated QR&O could result in someone interpreting it as current policy, but I didn't think it would happen this quickly...  ;D

If you look at the old one I posted and compare it to the current, you'll see it got completely overhauled.

Yeah, I saw that. I guess we're all persons now.

So now that the US Supreme Court has deemed Corporations to be people, can you claim to live common law with GM? ;D

 

[PMedMoe]

So now that the US Supreme Court has deemed Corporations to be people, can you claim to live common law with GM? ;D

Yeah, but when the relationship is over, GM will want a hand-out.