THE INTERPLAY BETWEEN IMMIGRATION AND FAMILY Hawthorne v. Canada (Minister of Citizenship and...

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Transcript of THE INTERPLAY BETWEEN IMMIGRATION AND FAMILY Hawthorne v. Canada (Minister of Citizenship and...

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    THE INTERPLAY BETWEEN IMMIGRATION AND FAMILY LAW

    (CUSTODY/ACCESS and CHILD PROTECTION) Caterina E. Tempesta

    Counsel Office of the Children’s Lawyer Fall Professional Development

    November 22, 2013

    Situations where family law and immigration issues may intersect

    include: • cases where a parent, including the child, is subject to a

    removal order; • cases where a parent, but not the child, is subject to

    removal order (ie. Canadian-born child); • cases where a child is in care and his/her family

    members are subject to a removal order (ie. Canadian- born child);

    • cases where a child is in care and does not have his/her immigration status resolved (ie. refugee claimant, etc.); and

    • cases where a child is not a Canadian citizen or permanent resident and may be at risk for removal due to criminal activity

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    Terms

    • CIC = Citizenship and Immigration Canada

    • CBSA = Canada Border Services Agency

    • Minister = Minister of Citizenship, Immigration and Multiculturalism OR Minister of Public Safety and Emergency Preparedness

    • DR = Designated Representative

    • H&C = In-land application for permanent residence on humanitarian and compassionate grounds

    • IRB = Immigration and Refugee Board

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    Designated Representatives (“DR”)

    • the IRB appoints a DR where the person who is the subject of the proceedings is a child under the age of 18 (a minor) or an adult who is unable to appreciate the nature of the proceedings

    • the DR is responsible for protecting the interests of the minor as well as explaining the process to them

    • in the case of a minor, the designated representative is often the child's parent, although another family member, a legal guardian, a friend, or a worker from an agency that provides such services can also act as a designated representative, ie. a CAS worker

    • a DR must not have interests that conflict with those of the person they represent

    • a DR is not the same as counsel but may decide whether to retain/instruct counsel

    • DR program – lawyers who fill role of DR - joint initiative of Pro Bono Law Ontario, IRB, McCarthy Tetrault and RBC

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    IRPA - Objectives

    Some of the objectives of IRPA in regard to immigration and refugees include:

    3(1)

    (d) to see that families are reunited in Canada

    (h) to protect the health and safety of Canadians and to maintain the security of Canadian society

    (2)

    (b) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted

    (c) to fulfill Canada’s international legal obligations with respect to refugees…

    (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system…

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    IRPA - Application

    3(3) IRPA is to be construed and applied in a manner that:

    (d) ensures that decisions taken under this Act are consistent with the Charter, including its principles for equality and freedom from discrimination…

    (f) Complies with international human rights instruments to which Canada is a signatory.

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    IRPA and Best Interests

    There are no overriding “best interests of the child” considerations in the immigration/refugee law context, however there are several sections of the Act that mandate an assessment of best interests, including:

    • S. 25(1) – humanitarian and compassionate considerations at the request of the foreign national

    • S. 25.1 – humanitarian and compassionate considerations on the Minister’s own initiative

    • Ss. 67, 68, 69 – Immigration Appeal Division proceedings

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    Immigration Cases considering Best Interests of the Child

    Baker v. Canada (Minister of Citizenship and Immigration) [1999] S.C.J. No. 39, [1999] 2 S.C.R. 817 The Supreme Court held that, while the best interests of children were not the primary consideration

    in making decisions on humanitarian and compassionate claims, close attention must be given to children's interests and needs.

    Hawthorne v. Canada (Minister of Citizenship and Immigration) [2002] F.C.J. No. 1687, [2003] 2 F.C.

    555 (C.A.); The "best interests of the child" are determined by considering the benefit to the child of the

    parent's non-removal from Canada as well as the hardship the child would suffer from either her parent's removal from Canada or her own voluntary departure should she wish to accompany her parent abroad….

    ... Rather, the interests of the child must be "well identified and defined" ... and "examined ... with a great deal of attention" ... . For, as the Supreme Court has made clear, the best interests of the child are "an important factor" and must be given "substantial weight" ... in the exercise of discretion under subsection 114(2)…

    Rigorous process requirements are fully justified for the determination of subsection 114(2) applications that may adversely affect the welfare of children with the right to reside in Canada: vital interests of the vulnerable are at stake and opportunities for substantive judicial review are limited.

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    Federal Court of Appeal

    • FCA has held that the best interests of the child are but one factor that an immigration officer examines with a great deal of attention, but the presence of a child does not call for a particular result

    Legault v. Canada (Minister of Citizenship & Immigration), 2002 FCA 125

    • FCA has also expressly noted that there are differences in the consideration of the child’s best interests in a family law v. immigration context

    Kisana v. Canada (Minister of Citizenship & Immigration), 2009 FCA 189

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    Factors an Immigration Officer may consider in an in-land H&C context

    • age of the child

    • level of dependency between the child & the H&C applicant or the child

    • the degree of the child’s establishment in Canada

    • the child’s links to the country of origin

    • the conditions in the country of origin and the potential impact on the child

    • medial issues of special needs the child may have

    • impact to the child’s education

    • matters related to the child’s gender

    IP 5 Operation Manual – Immigrant Applications in Canada made on Humanitarian and Compassionate Grounds – updated 2011-04-01

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    IRPA Enforceable removal order 48. (1) A removal order is enforceable if it has come into force and is not

    stayed. Effect (2) If a removal order is enforceable, the foreign national against whom it

    was made must leave Canada immediately and the order must be enforced as soon as possible.

    • the most fundamental principle of immigration law is that non -citizens do

    not have an unqualified right to enter or remain in the country Canada (Minister of Employment and Immigration ) v. Chiarelli , [1992] 1 S.C.R.

    711

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    Stay of Removal

    Stay 50. A removal order is stayed (a) if a decision that was made in a judicial proceeding

    — at which the Minister shall be given the opportunity to make submissions — would be directly contravened by the enforcement of the removal order;

    : **Any disposition, access or non-removal orders,

    however, must be made with a view to the purposes of the CFSA, including the best interests of the child, and not merely to subvert the purposes of IRPA** 12

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    Cases which have considered s. 50(a) of IRPA in the Custody/Access Context

    JH v FA, [2009] OJ No 88 (OCA): The mother and eldest daughter were under a deportation order. Their refugee claims and

    PRRAs were denied. The mother had applied under humanitarian and compassionate grounds, but the application was not yet decided and her request to defer the removal order until a full consideration had been given under the H&C was denied. She applied for custody of the two children and a non-removal order so that she could obtain a court order that would trigger the statutory stay of the removal order under s. 50(a) of the IRPA. The Crt found that there was no family law dispute – one father did not participate and the other did not want custody. The court noted that the purpose of non-removal orders is to prevent parents from removing children from the jurisdiction in contested family law proceedings, not to frustrate deportations. Her appeal of the denial of the non-removal order was dismissed.

    Idahosa v. The Minister of Public Safety and Emergency Preparedness , 2008 FCA 418

    The Federal Court of Appeal held that s. 50(a) does not apply to a provincial court’s order awarding custody to a parent of Canadian-born children for the purpose of delaying or preventing the enforcement of a removal order against the parent, when there is no lis respecting custody that is unrelated to the removal.

    **In other words, there must be a genuine family law lis or dispute in each case