If you have read the IRCC Help Center Q&A “Can my time abroad count toward my permanent resident status? (canada.ca)”, then you might want to know whether the information on accompanying a Canadian spouse while traveling abroad applies to you.
Consistent with section 28 of the Immigration and Refugee Protection Act, SC 2001, c 27 permanent residents must establish their residence in Canada for 730 days in a five-year period. To meet the residency requirement, the applicants shall construct subparagraph 28(2)(a)(ii) of the Act correctly. Generally, the word accompanying a Canadian spouse means to travel with or be in company of a Canadian spouse. However, this specific term is clarified in subsection 61(4) of the Immigration Refugee Protection Regulations, SOR/2002-227 to ordinarily residing with a Canadian spouse.
The proper legal test is as follows:
Application
(2) The following provisions govern the residency obligation under subsection (1):
(a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are
(ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,
Subparagraph 28(2)(a)(ii) of the Immigration and Refugee Protection Act, SC 2001, c 27
Accompanying a Canadian Spouse outside Canada
(4) For the purposes of subparagraphs 28(2)(a)(ii) and (iv) of the Act and this section, a permanent resident is accompanying outside Canada a Canadian citizen or another permanent resident — who is their spouse or common-law partner or, in the case of a child, their parent — on each day that the permanent resident is ordinarily residing with the Canadian citizen or the other permanent resident.
Subsection 61(4) of the Immigration and Refugee Protection Regulations, SOR/2002-227
In Parikh v Canada (Public Safety and Emergency Preparedness), 2019 FC 13, the court found that the permanent resident must accompany the Canadian spouse and they must live together abroad to comply with the residency obligation at para 26:
[26] First, during the IAD hearing, the member identified the precise legal and factual issue on this question, using words that indicate that he understood the legal test in substance. The transcript shows that relatively early in the hearing, the member said the following:
Alright, and so counsel I am just trying to make this easier for everybody; if the appellant can provide me with sufficient evidence that she accompanied her husband at the time to the United States in June of 2001 and there is proof that he was there… and they were living together, then she meets the elements pursuant to [s. 28(2)(a)(ii) of IRPA].
Parikh v Canada (Public Safety and Emergency Preparedness) , 2019 FC 13, at para 26
Disclaimer
Information provided in this article does not constitute immigration or citizenship advice. Only authorised representatives are allowed to assist applicants with immigration and citizenship services for a fee. In addition, immigration laws, regulations, and policies are changing constantly.
If you need help with the assessment of your case, then obtain sound advice from Mrs. Katharina Kontaxis, RCIC-IRB. Only with a proper case strategy can you reach your goal of Canadian permanent residence or Canadian citizenship.
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