Common Law Marriage in the Canadian Forces - Mega Thread

[aesop081]

  The QR&O is pretty clear and unambiguous.

:rofl:

 

[Occam]

:rofl:

Care to share with us what you find so amusing?

 

[aesop081]

Care to share with us what you find so amusing?

I find it amusing that you said "QR&O" and "clear and unambiguous" in the same sentence. I have been through the military justice system and admin system enough to know and have proven otherwise.

 

[Greymatters]

To clarify, he is sleeps in Canada at our place every night, and travels across the border for work during the day.  With the exception of one six month period where we split up and he returned to he US during that time, we have been cohabiting in Canada for five years. 

We've looked at every avenue to for filing immigration paperwork, but the only one he will qualify for is common law spouse once I can get the ex-husband dealt with.  I really didn't want to rock the boat by filing divorce papers so soon before I leave for basic training, because my ex can be volatile and I could see him getting the bright idea to file for custody of the kids while I'm "indisposed".  Plus, the expense to file is difficult to come up with at the moment.

I dont see how this is possible - shes been co-habitating for five years and she hasnt even filed yet for divorce?  The CF may try to stay out of personal lives, but they dont recognize multiple relationships either.  How can the CF recognize co-habitation when she is is still legally married to her current husband with no demonstrated intent to dissolve the marital status? 

 

[Occam]

I find it amusing that you said "QR&O" and "clear and unambiguous" in the same sentence. I have been through the military justice system and admin system enough to know and have proven otherwise.

I deliberately used "QR&O", as in the singular.  The QR&O we're discussing is clear and unambiguous.

I dont see how this is possible - shes been co-habitating for five years and she hasnt even filed yet for divorce?  The CF may try to stay out of personal lives, but they dont recognize multiple relationships either.  How can the CF recognize co-habitation when she is is still legally married to her current husband with no demonstrated intent to dissolve the marital status? 

Quite simply, she doesn't have to file for divorce, as obtaining a divorce isn't a prerequisite for starting a common law relationship.  The CF only cares insofar as you can only have one marriage or common law relationship on the go at a time and will only recognize the most recent unless a court orders otherwise.

edit: for clarity

 

[Blackadder1916]

I dont see how this is possible - shes been co-habitating for five years and she hasnt even filed yet for divorce?  The CF may try to stay out of personal lives, but they dont recognize multiple relationships either.  How can the CF recognize co-habitation when she is is still legally married to her current husband with no demonstrated intent to dissolve the marital status? 

While the CF does not recognize multiple conjugal relationship, they do permit a member to be in a common-law relationship (and recognizes it to be the current valid relationship) at the same time as being married to, but separated from, someone else.  During my time in, I knew several who were in that boat.  One had even been in a common-law relationship for over 20 years (while still married to someone else) while serving (he's now retired); I think they are still common-law only because the original wife is too mean to die.

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).

The OP seems to have confirmed that her "common-law spouse" is not a permanent resident of Canada and has no legal authority to live or work here (or receive any public benefits like health care etc).  At one time the QR&Os were very clear in its defintion of "common-law" - it expressly stated that being able to live in Canada legally was one of the requirements.  Amendments have made the applicable QR&O much more vague and open to interpretation.

 

[cupper]

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.

Good one! Just don't try calling her that. ;D

 

[aesop081]

  The QR&O we're discussing is clear and unambiguous.

Nope, it is not. One of the key words in that QR&O is "cohabiting".

He is not residing in Canada, thus they are not cohabiting.

 

[Occam]

At one time the QR&Os were very clear in its defintion of "common-law" - it expressly stated that being able to live in Canada legally was one of the requirements.  Amendments have made the applicable QR&O much more vague and open to interpretation.

QR&O 1.075 is currently showing the last effective change being 1 September 2001. 

I also have a copy of the OLTRS July 1997 CD-ROM, which contains the valid QR&Os at the time.  QR&O 1.075 read, in part:

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; and

    (e)  are authorized by law to reside in Canada on a permanent basis.


Disclaimer:  The above text in italics is a superceded version of QR&O 1.075, and is posted to show the changes made to the regulation over time. 

It's pretty easy to see why this particular QR&O was amended.  COs were no doubt driving themselves batty trying to find out legal issues like whether any given two people are prevented by law from entering into a marriage, and immigration law.  Oh, and that pesky opposite sex thing.  ;D

 

[J.J]

He CANNOT be declared a common-law spouse in Canada as he has no legal status here. Living here he is breaking the law (IRPA) and if/when he is caught he can be excluded for up to year or deported and that would make any future legal immigration near impossible.

You guys ought to know that the CF doesn't involve itself in matters which don't concern them.  The guy's immigration status is between him and Citizenship and Immigration Canada.  There's a stat dec that has to be filled out when claiming common law status - I'm nearly certain that there are no questions pertaining to the citizenship and immigration status of the spouse.  The CF doesn't get involved with civil matters, either - such as having one legal spouse and one common-law spouse at the same time.

That is ridiculous statement. What is the difference between this situation and someone serving in Afghanistan and wanting to bring a Afghan citizen home because they fell in love? Would the CF transport the person back to Canada, contrary to Immigration laws?
The person in the CF who would authorize or arrange this can be charged for counselling misrepresentation contrary to IRPA;
Counselling misrepresentation

http://laws.justice.gc.ca/eng/acts/I-2.5/FullText.html

126. Every person who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act is guilty of an offence.

 

[Occam]

He is not residing in Canada, thus they are not cohabiting.

Sure he's residing in Canada.  He has a Canadian mailing address.  He might even legally own land here.  He might sleep on that land every night.

You seem intent on not seeing the difference between residing in Canada, and residing in Canada in compliance with immigration law.  The CF no longer sees the difference between those two scenarios, as my previous post shows.  Citizenship and Immigration Canada does see the difference, however.

 

[aesop081]

So, Para (e) seems to be it. He's not a resident of Canada thus she cannot have him as common-law partner. He is a visitor to canada. He is not authorised by law to reside in Canada.

Sure he's residing in Canada.  He has a Canadian mailing address.  He might even legally own land here.  He might sleep on that land every night.

The CF no longer sees the difference between those two scenarios, as my previous post shows. 

I disagree and nothing you have posted so far points to that.

 

[Occam]

He CANNOT be declared a common-law spouse in Canada as he has no legal status here. Living here he is breaking the law (IRPA) and if/when he is caught he can be excluded for up to year or deported and that would make any future legal immigration near impossible.

That is ridiculous statement. What is the difference between this situation and someone serving in Afghanistan and wanting to bring a Afghan citizen home because they fell in love? Would the CF transport the person back to Canada, contrary to Immigration laws?
The person in the CF who would authorize or arrange this can be charged for counselling misrepresentation contrary to IRPA;
Counselling misrepresentation

http://laws.justice.gc.ca/eng/acts/I-2.5/FullText.html

126. Every person who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act is guilty of an offence.

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).

The example you gave is just silly.  Of course they wouldn't be transported, because people tend to look for things like passports before letting you board a plane.  As I'm sure you're aware, crossing the US border with Canada isn't exactly like trying to board an aircraft in Afghanistan to travel to Canada.

 

[Occam]

So, Para (e) seems to be it. He's not a resident of Canada thus she cannot have him as common-law partner. He is a visitor to canada. He is not authorised by law to reside in Canada.

Are you being deliberately obtuse?

The para (e) you're referring to is out of QR&O 1.075 as it existed back in June 1997.  I posted it to show the changes the QR&O has gone through over the years.  That para no longer exists in the current QR&O.

 

[J.J]

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 example you gave is just silly.  Of course they wouldn't be transported, because people tend to look for things like passports before letting you board a plane.  As I'm sure you're aware, crossing the US border with Canada isn't exactly like trying to board an aircraft in Afghanistan to travel to Canada.

The CF will relocate a person without legal status in Canada? Correct me if I am wrong, relocation is a CF benefit?

Whether you cross a border in a plane or car, you still need legal status to live here. My example is extreme, but not an unfair comparison.

 

[Blackadder1916]

I also have a copy of the OLTRS July 1997 CD-ROM, which contains the valid QR&Os at the time.  QR&O 1.075 read, in part:
. . . . . . .

    (e)  are authorized by law to reside in Canada on a permanent basis.
[/i]

It's pretty easy to see why this particular QR&O was amended.  COs were no doubt driving themselves batty trying to find out legal issues like whether any given two people are prevented by law from entering into a marriage, and immigration law.  Oh, and that pesky opposite sex thing.  ;D

Actually, having that particular item in the QR&O prevented many COs from going batty.  You have to remember that at one time we had a large number of Canadian military members residing outside the country and it was not unheard to have many young men living with local (non-Canadian) young (and not so young) women.  There were even a few Canadian women co-habiting with the local herren.  On more than a few occasions, soldiers received their posting instructions back to Canada and (forgetting that there was another government department called Immigration Canada) started their out-clearance procedures in blissful ignorance that the delightful fraulein who had been sharing their bed for (in some cases) years was not going to be on any flight home unless legally joined in marriage.  That was the immigration rule back then.

 

[Occam]

The CF will relocate a person without legal status in Canada? Correct me if I am wrong, relocation is a CF benefit?

They sure will!  The CF will because the CF won't know that person doesn't have legal status, because proving you have legal status isn't part and parcel of claiming you're in a common law relationship in the CF.  It used to be, as my post of the QR&O as it existed in 1997 shows, but it hasn't been required since 2001.

 

[J.J]

They sure will!  The CF will because the CF won't know that person doesn't have legal status, because proving you have legal status isn't part and parcel of claiming you're in a common law relationship in the CF.  It used to be, as my post of the QR&O as it existed in 1997 shows, but it hasn't been required since 2001.

Then why wouldn't the CF transport Afghans back to Canada if a member said they were common law? By your example and refusal to consider to consider you may be wrong there is nothing in CF regulations to prohibit it....

 

[Occam]

Then why wouldn't the CF transport Afghans back to Canada if a member said they were common law? By your example and refusal to consider to consider you may be wrong there is nothing in CF regulations to prohibit it....

Because the claim would be clearly fraudulent?

The current QR&O 1.075 still states:

“common-law partner”, in relation to an officer or non-commissioned member, means a person who has been cohabiting with the member in a conjugal relationship

(a) for a period of at least one year; or
(b) for a period of less than one year, if the member and the person have jointly assumed the support of a child.

Explain to me how a deployed soldier could possibly meet the criteria of cohabitating with an Afghan for one year.

Your example is not relevant.

 

[J.J]

Are there not CF members at the embassy? Their posting would be 2-3 yrs. Are there not some that are posted to Kabul for up to a year?