1

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

2

2

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

3

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

4

3

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…

5

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.

6

4

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

7

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.

8

5

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

9

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

10

6

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

11

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

7

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 in order for the

Court to assume jurisdiction**

13

Other Custody/Access Cases Canabate v Ayala, [2010] OJ No 4156 (OCJ) The Court made an order for custody in favour of the mother who was subject to deportation to Argentina. He

also made a specified access order as he felt that a non-structured access order would leave the child exposed to parental conflict and possible disruption of access. The mother had threatened to take the child to Argentina. The court made a non-removal order. It recognized that there was a pending deportation order, but found that it could not be the court’s dominant consideration since the child’s best interests were at stake. If the mother was deported, she could bring an emergency motion to lift the non-removal order and change the access terms.

Ffrench v Williams, [2011] OJ No 3910 (OCJ) The mother sought custody of her two children and an order that she could take them with her to Jamaica if she

was deported. The father and children were Canadian citizens. The father also sought custody, and in the alternative generous specified access and non-removal. The children had very close relationships with both parents. The Court found that it was in the best interests of the children that the parents share joint custody of them as long as the mother remained in Canada; however, if the mother was deported then the best interests of the children was for the father to have sole custody and facilitate access to the mother in Jamaica. It was not best for them to be removed from their community and be deprived of the opportunities that Canada could offer them. The court made a non-removal Order in fear that the mother might remove the children if she was deported.

McQuabbie v Noel, [2010] OJ No 6203 (OCJ) Martin v Royal, [2012] OJ No 1585 (OCJ)

MAW v JAW, [2013] OJ No 456 (OCJ) The child was a Canadian citizen. The mother was subject to a deportation order to Jamaica. The court found

that it was in the best interest of the child to live with the mother, whether in Canada or Jamaica. The court ordered that the father have reasonable and generous access on reasonable notice, whether in Canada or Jamaica, as well as Skype and telephone contact. The evidence indicated that specified access was not necessary, since the parents were willing to work together on access. The court found that there was no genuine lis between the parties with respect to non-removal, since neither party wanted to voluntarily remove the child from the jurisdiction. A non-removal order was not meant to frustrate deportation. 14

8

Jurisdiction over Non-Citizen Children

Family Courts have jurisdiction to make Orders under the Child and Family Services Act (“CFSA”) re children who are within Ontario, regardless of a child’s immigration status

Children’s Aid Society of Toronto v AZ, [2006] OJ No 1742 (OCJ) Children’s Aid Society of Ottawa v HC, [2003] OJ No 5293 (Ont SCJ)

Whether the children are in the jurisdiction as visitors, tourists, refugees or to attend school should not and does not make a difference when there are protection concerns.

Windsor-Essex Children’s Aid Society v CC, [2000] OJ No 4991 (Ont SCJ) The court determined that the CFSA applies to a child claiming refugee

status and that in protection cases, there is no requirement that the child ordinarily reside in the territory of the Society. Child safety is paramount and societies must protect children within their territories.

Lennox and Addington Family and Children’s Services v TS, [2000] OJ No 1420 (Ont SCJ)

15

Participation in CP Proceedings while subject to Deportation/Removal

In the CP context, parents who are under deportation orders or who

have been deported already may find it difficult to participate in protection proceedings:

Catholic Children’s Aid Society of Hamilton v PH, [2006] OJ No 2461 (Ont SCJ) Children’s Aid Society of Metropolitan Toronto v PW, [1994] OJ No 3250

(OCJ) Children’s Aid Society of the Regional Municipality of Waterloo v MJD,

[2002] OJ No 5877 (Ont SCJ)

16

9

Working with Families/Children and

Access Considerations

• In the CP context, consideration must be given to the need for the family to be here to address any protection concerns, whether or not the child is in their care. This includes the ability of the Society to work with a family, and the ability of the Court to monitor that work, in order to meet the expectations for a possible return of the child to the family

• even if a return to the parent is not contemplated or in the child ’s best interests, the issue of ongoing access to maintain a child’s relationship and emotional ties to a parent or other family member, must be considered – this would also be a factor in the C/A context

• even if a child has been made a Crown ward with a view to adoption, the possibility of on-going access to a family member exists by virtue of the 2011 amendments to the CFSA re openness (ss. 145.1 & 145.1.1)

17

Other Issues

• need for developing an expedited process for obtaining permanent residence and citizenship for Crown wards before they turn 18

• informal policy existed re not deporting Crown wards in care of a Society – may no longer be the case

• Court has held that a Crown wardship Order would not preclude the possibility of a removal of an illegal person from Canada pursuant to the applicable immigration legislation

Children’s Aid Society of Toronto v MM, [2010] OJ No 2550 (OCJ) Children’s Aid Society v REA, [2009] OJ No 4167 (Ont SCJ)

18

10

Participation by Minister in Family Law Proceedings

• s. 50(a) of IRPA –removal order is stayed 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

• Minister must be given the opportunity to make submissions in a family law proceeding in order to invoke the possibility of a stay of a removal order

• the real question is what the scope of the Minister’s participation should be

• different considerations in C/A v. CP cases – C/A matters open to the public whereas CP matters are private (see ss. 45(4), (8) and (10) of CFSA)

• Children’s Aid Society of Toronto v MM, [2010] OJ No 2550 (OCJ) Motion by the Minister of Public Safety and Emergency Preparedness to be added as

a party to the Crown wardship application. The court had before it all of the necessary information to perform its task without adding the Minister as a party. Motion was therefore dismissed.

19

Considerations re Sharing of Information

CFSA

• privacy considerations under the CFSA - ss. 45(4), (8) and (10) of CFSA

• no one can publish or make public info that has the effect of identifying a child who is the subject of a proceeding or the child’s parent or family (s. 45(8))

• no person except a party or party’s solicitor shall be given a copy of a transcript of the hearing, unless the Court orders otherwise (s. 45(10))

• more flexibility if no proceedings before the Court since the prohibition on publication contained at s. 45(8) specifically references the identification of a child or child’s family member who is a witness at or a participant in a hearing or the subject of a proceeding

• also, under 45(4), the Court has the ability to override the presumptive assurance of privacy and order that the hearing be held in public after considering:

(a) the wishes and interests of the parties; and

(b) whether the presence of the public would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding

Solicitor-Client Privilege

20

11

S. 83 of the CFSA

Offence 83. If a child is the subject of an order for society wardship under subsection 57 (1) or an order for

society supervision or Crown wardship under that subsection or subsection 65.2 (1), no person shall,

(a) induce or attempt to induce the child to leave the care of the person with whom the child is placed by the court or by the society, as the case may be;

(b) detain or harbour the child after the person or society referred to in clause (a) requires that the child be returned;

(c) interfere with the child or remove or attempt to remove the child from any place; or (d) for the purpose of interfering with the child, visit or communicate with the person referred

to in clause (a). R.S.O. 1990, c. C.11, s. 83; 2006, c. 5, s. 31.

Offences 85. (1) A person who contravenes,

(i) any provision of section 83 (interference with child, etc.); or and a director, officer or employee of a corporation who authorizes, permits or concurs in such a

contravention by the corporation is guilty of an offence and on conviction is liable to a fine of not more than $1,000 or to imprisonment for a term of not more than one year, or to both. R.S.O. 1990, c. C.11, s. 85 (1); 1999, c. 2, s. 30 (1, 4).

21

Application of the Charter to Child Protection Proceedings

In the child protection context, the Courts have accepted that familial relationships are of fundamental societal importance and worthy of constitutional recognition and protection.

• R.B. v. CAS of Metropolitan Toronto, [1995] 1 S.C.R. 315

• New Brunswick (Minister of Health) v. G.(J.), [1999] 3 S.C.R. 46

• Winnipeg Child & Family Services v. W.(K.L.), [2000] 2 S.C.R. 519

• Canadian Foundation for Children v. Canada (Attorney General), [2004] 1

S.C.R. 76

• Kenora-Patricia Child and Family Services v. A.M., [2003] O.J. No. 3911 (O.C.J.) 22

12

United Nation Convention on the Rights of the Child

Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare

institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 9 1. States Parties shall ensure that a child shall not be separated from his or her parents against their

will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

Article 12 1. States Parties shall assure to the child who is capable of forming his or her own views the right to

express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

23

Other Cases in the Family Law Context

A.M.R.I. v. K.E.R., 2011 ONCA 417 : OCA found that an order of return under the Hague Convention of a

child found to be a Convention refugee has a “profound and often searing impact on the affected child”. Where the proposed return engages the child's s. 7 Charter rights, meaningful procedural protections must be afforded to the child. These include the right to (1) receive notice of the application; (2) receive adequate disclosure of the case for an order of return; (3) a reasonable opportunity to respond to that case; (4) a reasonable opportunity to have his or her views on the merits of the application considered in accordance with the child's age and level of maturity; (5) the right to representation; and (6) the right to reasons for the Hague application judge's decision. By way of relief, the Court directed that the parties, including the Attorney General for Canada, do everything within their power to cooperate and facilitate the youth’s return to Ontario to participate in a new hearing under the Hague.

24

13

Committee on the Rights of the Child – October 2012 Report re Canada’s Compliance with the Convention on the Rights of the Child

The Committee on the Rights of the Child, tasked with monitoring the compliance of signatory states with the UNCRC, issued its most recent report re Canada on October 5, 2012. The Committee expressed concern regarding Canada’s compliance with various provisions of the CRC, including those related to the best interests of the child and Canada’s treatment of asylum-seeking and refugee minors:

Best interests of the child 34. In particular, the Committee is concerned that the best interest of the child is not appropriately applied in asylum -

seeking, refugee and/or immigration detention situations.

Respect for the views of the child 36. The Committee welcomes the State Party’s Yukon Supreme Court decision in 2010 which ruled that all children

have the right to be heard in custody cases. Nevertheless, the Committee is concerned that there are inadequate mechanisms for facilitating meaningful and empowered child participation in legal, policy, environmental issues, and administrative processes that impact children.

37. The Committee recommends that the State Party continue to ensure the implementation of the right of the child to be heard in accordance with article 12 of the Convention. In doing so, it recommends that the State party promote the meaningful and empowered participation of all children, within the family, community, and schools, and develop and share good practices. Specifically, the Committee recommends that the views of the child be a requirement for all official decision-making processes that relate to children, including custody cases, child welfare decisions, criminal justice, immigration, and the environment.

25

Committee on the Rights of the Child – October 2012 Report re Canada’s Compliance with the Convention on the Rights of the Child (Cont’d)

I. Special protection measures (arts. 22, 30, 38, 39, 40, 37 (b)-(d), 32-36 of the Convention) Asylum-seeking and refugee children

73. The Committee is gravely concerned at the recent passage of the law entitled, Protecting Canada’s Immigration System Act, in June 2012 authorizing the detention of children from ages 16 to 18 for up to one year due to their irregular migrant status. Furthermore, the Committee regrets that notwithstanding its previous recommendation (CRC/C/15/Add.215, para. 47, 2003), the State party has not adopted a national policy on unaccompanied and asylum-seeking children and is concerned that the Immigration and Refugee Protection Act makes no distinction between accompanied and unaccompanied children and does not take into account the best interests of the child. The Committee is also deeply concerned about the frequent detention of asylum -seeking children it being done without consideration for the best interests of the child. Furthermore, while acknowledging that a representative is appointed for unaccompanied children, the Committee notes with concern that they are not provided with a guardian on a regular basis. Additionally, the Committee is concerned about the deportation of Roma and other migrant children who previous to that decision often await, in a certain status, for prolonged periods of time, even years, such decision.

74. The Committee urges the State party to bring its immigration and asylum laws into full conformity with the Convention and other relevant international standards. In addition, the Committee urges the State party to:

(a) Reconsider its policy of detaining children who are asylum -seeking, refugees and/or irregular migrants; and ensure that detention is only used in exceptional circumstances, in keeping with the best interests of the child, and subject to judicial review;

(b) Ensure that legislation and procedures use the best interests of the child as the primary consideration in all immigration and asylum processes, that determination of the best interests is consistently conducted by professionals who have been adequately such procedures;

(c) Expeditiously establish the institution of independent guardianships for unaccompanied migrant children; (d) Ensure that cases of asylum-seeking children progress quickly so as to prevent children from waiting long periods

of time for the decisions; and (e) Consider implementing the United Nations High Commission for Refugees Guidelines on International Protection

No.8: Child Asylum Claims under articles 1(A)2 and 1(F) of the 1951 Convention. In implementing this recommendation, the Committee stresses the need for the State party to pay particular attention to ensuring that its policies and procedures for children in asylum seeking, refugee and/or immigration detention give due primacy to the principle of the best interests of the child and that immigration authorities be trained on the principle and procedures of the best interest of the child. 26

14

Practice Tips

• Important to identify immigration status issues a soon as possible when meet with clients, speak to parents and/or Society and when referrals to children’s aid societies and the OCL are made

• verify immigration status of the child/family and stage of any

immigration/refugee and/or removal proceedings as soon as possible, including need to seek out / apply for identity documents for the child ASAP

• liaise, as necessary, to ensure that appropriate information is before the Court – this may include liaising with parent/child’s immigration counsel and/or Designated Representative and considering whether they should be asked to participate (in limited way) / provide evidence in family law proceeding

• consider need for independent legal representation for a child with immigration status issues as soon as possible to ensure compliance with natural justice, rules of procedural fairness and the UNCRC

27

Practice Tips (Cont’d)

• consider any particular linguistic, cultural and/or developmental issues that child may have – also consider potential trauma that parent/child has experienced and the need for supportive services

• consider position re extent of Minister’s participation in family law proceedings

– discuss with OCL • gather information/evidence in family law proceeding re: - nature and strength of child’s relationship with each parent, including the level of dependency between the child & the parent who may be subject to removal from Canada and the effects on child of a loss of that relationship; - the degree of the child’s establishment in Canada having regard to extended family relationships, friendships and activities; - the child’s links to the country of origin, including the plan for the child in that country if he/she were forced to return; - the conditions in the country of origin and the potential impact on the child; - medical issues or any special needs the child may have; - impact to the child’s education; - matters related to the child’s gender

28

15

Practice Tips (Cont’d)

• consider whether there may be benefit to providing / filing

information obtained in family law proceeding in immigration matter – consult with OCL

• consider importance of a child being interviewed separately from a parent by immigration / CBSA staff when there are allegations of abuse/neglect such that a children’s aid society is involved – advocate for independent representation

• need to highlight importance to the child of maintaining a relationship to a family member and effects on child of a loss of that relationship by virtue of a parent’s removal from Canada

29