Residency Obligations of a Canadian Permanent Resident

We help many clients obtain permanent resident status in Canada and are thrilled to share the news when their approval comes through.

But then what? How do permanent residents maintain their residency status? This article is a refresher of an earlier blog summarizing the residency obligations of a Canadian permanent resident.

Residency Obligation – Physical Presence in Canada

A permanent resident must be physically present in Canada for at least 730 days during the last five years. The five year period to achieve 730 days physically in Canada encompasses the last five years prior to being evaluated by an immigration officer. Evaluations of residency obligations usually take place when a permanent resident makes an application for a new permanent resident card or a permanent resident travel document. They can also be assessed at the port of entry by an officer. 

To calculate the number of days physically in Canada, one should count each day they were in Canada regardless of how much time they spent that day in the country.

Physical Presence Exemptions

There are only three situations that allow a permanent resident to count time spent outside of Canada towards their residency obligations. This exemption to the physical presence requirement is particularly relevant for those who travel often or live in multiple countries due to business or family reasons.

The three scenarios are:

• If a permanent resident is outside of Canada accompanying their spouse or common-law partner who is a Canadian citizen. Or, in the case of a child (younger than 22 years old), they are accompanying their parent(s) who are a Canadian citizen.

• If a permanent resident is outside of Canada employed on a full-time basis by a Canadian business or in the federal or provincial public administration/services.

• If a permanent resident is outside of Canada accompanying a permanent resident spouse/common-law partner, or in a case of a child, accompanying their parent(s) who is employed on a full time basis by a Canadian business or in the federal public administration or the public service of a province.

In the first scenario, to meet the residency obligations while accompanying a Canadian family member (spouse or parent) outside of Canada, the permanent resident must reside with the Canadian family member. Proof of shared residency is required in the application. And, although a child who is a permanent resident may count the days they spent outside of Canada while accompanying their Canadian parent(s) towards meeting the residency obligation, the opposite is not true. A parent who is permanent resident, cannot count the days they spent outside of Canada while accompanying their Canadian child towards meeting their residency requirement.

Claiming days while employed outside of Canada towards meeting the residency obligation would  arguably be the most complex scenario as it is a multifactorial assessment that are based not only the Canadian statutes, but also many years of case law.

These are the general parameters being used when assessing whether time of work outside of Canada can be claimed towards meeting the residency obligations:

• The worker must be assigned on a full-time basis as a term of the employment or contract to a position outside Canada, an affiliated enterprise outside Canada; or a client of the Canadian business or the public service outside Canada (Immigration and Refugee Protection Regulations – s. 61(3)). This means that the decision to reside outside of Canada is the decision of the company, and the assignment is temporary, full time in nature with the expectation for the worker to return to Canada. The worker is also expected to maintain connection with the Canadian entity during their assignment abroad.

• If working for a private business, the Canadian business must have been created under the laws of Canada or a province, has an ongoing operation in Canada, that is capable of generating revenue and is carried on in anticipation of profit … (IRPR s. 61 (1)(a) and (b)). Employment with a holding company or a company that does not have an active, ongoing operation may not be considered.

• Finally, the Canadian entity may not serve primarily to allow a permanent resident to comply with their residency obligations while residing outside Canada (IRPR s. 61(2)). This means a permanent resident may not create a Canadian entity/business for the primary reason to allow them to reside outside of Canada while meeting the residency requirements.

If you have concerns meeting the residency obligations before your permanent resident card expires, we encourage you to speak to our team. We also provide various levels of service for clients who wish to renew their permanent resident card or apply for a permanent resident travel document from outside of Canada. Please reach out to us at immigration@bellalliance.ca