Employment Insurance and Common Law Application

[jess_dawn06]

My boyfriend has been living and working in Canada legally for 5+ years and his application for permanent residency is in progress, but a few months ago his immigration lawyer missed a deadline and therefore his work permit expired and he had to stop working. We have been living together for 4+ years and I am a Canadian citizen so the lawyer advised us to apply for common law status, at which point he will be granted an open work permit until his permanent residency comes. That application is in progress as well.

We asked both the immigration lawyer and Service Canada if he is eligible to apply for Employment Insurance, but neither can give us a straight answer. Service Canada said to definitely try, but my question is, will applying for EI have any negative affect on either the common law application or the permanent residency? He has been given a window of 4-10 months during which he will not be able to work, so the EI would help in the meantime, but not if it may impact anything else!

Thanks in advance,

Jess

[Klaus]

Hi Jess,

you don’t need to apply for common-law status, you simply declare it. The CIC Help Centre states:

What does the Government of Canada consider to be a common-law relationship?

You may apply to sponsor a common-law partner, of the opposite sex or the same sex. If so, you have to prove you have been living with your partner for at least 12 consecutive months in a relationship like a marriage.

That means living together for one year without any long periods where you did not see each other. Either partner may have left the home for work or business travel, family obligations, and so on. However, that separation must have been temporary and short.

A common-law relationship ends when at least one partner does not intend to continue it.

You may need to provide some kind of proof that you have been living together, such as a rental agreement with both your names on it, a joint bank account, hydro bills with both your names on them or something similar. Anything that suggests that you really have been living together is acceptable. Personally I didn’t have any bills with both our names on them or written agreements, but we were able to proof that we’ve been living at the same address for a couple of years and it worked.
So I wouldn’t expect too much trouble here.

However, since your BF (or let’s call him your “common-law partner” since it sounds so much more romantic ) is not allowed to work anymore, I don’t think he’s eligible to receive EI benefits. The Service Canada website states:

Am I eligible for EI regular benefits?

You may be entitled to receive EI regular benefits if you:
•are employed in insurable employment;
•lost your employment through no fault of your own;
•have been without work and without pay for at least seven consecutive days in the last 52 weeks;
•have worked for the required number of insurable hours in the last 52 weeks or since the start of your last EI claim, whichever is shorter;
•are ready, willing, and capable of working each day; and
•are actively looking for work (you must keep a written record of employers you contact, including when you contacted them).

You may not be entitled to receive EI regular benefits if you:
•voluntarily left your employment without just cause;
•were dismissed for misconduct; or
•are unemployed because you are directly participating in a labour dispute (strike, lockout, or other type of dispute).

Here’s another excerpt from Digest of Benefit Entitlement Principles - Chapter 10

10.2.4 Expiry of work permit

All foreign workers authorized to enter Canada, do so as temporary residents, visitors, students or workers. When they enter Canada they are given temporary resident status for a limited period of time.

In the majority of cases, if they wish to work in Canada, they are required to obtain a work permit issued by Citizenship and Immigration Canada (CIC) before they begin working, or continue working in Canada. This work permit is also referred to as an Employment Authorization.

Generally, foreign workers can only demonstrate availability to accept work if they possess a work permit which allows them to work in Canada. Temporary foreign workers who are not eligible to extend their stay in Canada, beyond the expiry of their work permit, cannot demonstrate availability for work.

However, a claimant who does not currently possess a work permit is not necessarily unavailable for work. The claimant may be able to obtain a work permit as soon as employment is secured, because of the type of work they perform, or because of the individual’s skills. Consequently, the lack of a work permit is not the only factor to be considered when determining availability. The Commission must take into account all factors normally considered when determining a claimant’s availability.

So, from the looks I don’t think that he’s eligible to receive EI benefits, but I’m not a lawyer, so if Service Canada recommends to give it a try, I would certainly do it.

Regarding your PR application there is nothing to fear. I don’t know under which program you applied, but if you are considered common-law partners, it should be very easy for you to get him his PR status.
Speaking of lawyers: if he advised to “apply for common-law status” and missed a deadline, it may be the time to look for another lawyer or take matters into your own hands. I find it unacceptable to be let down and even pay him for not properly doing his job.

Klaus