Note: This answer is provided by Kristin Marshall, LL.B, past Immigration Staff Lawyer for Downtown Legal Services, Toronto.
Answer: A woman can be deported without her child in some circumstances. Where the child is a Canadian citizen, Immigration leaves it up to the mother to decide whether or not to take her child if she is ordered to leave Canada.
But, she can take the child with her only if there is no family court order preventing this; so, if there is a court order for joint or full custody with the other parent or another individual, she cannot take the child with her.
The Canadian child has a right to remain in Canada, but the child does not have a right to have their mother remain in Canada if she does not have status in Canada and has been ordered deported.
In most cases, even if the child is a Canadian citizen, the woman will choose to bring the child with her, as she does not want to be separated from her child and, often, there are not satisfactory arrangements that can be made for the child’s care in Canada. Occasionally, a woman will leave her child with a trusted relative if she feels that the child will be better off in Canada and she hopes to be able to return in the future. If she chooses to bring her Canadian child with her when leaving, Immigration will facilitate their removal at the same time.
Immigration will also delay their removal from Canada if the woman has to obtain a passport or travel document for the child, but Immigration will not postpone removal indefinitely for this reason.
Making a request to defer the woman’s removal from Canada
If the woman has been to family court, and there is a final or interim order granting joint custody, access to another parent or relative, or a supervision order with a Children’s Aid Society, it is possible to request a deferral of the mother’s deportation from Canada. The request is made to the Canada Border Services Agency (CBSA), the agency responsible for arranging deportations from Canada). The request would highlight the family court proceedings and would state that removal of the mother from Canada would be in breach of the family court order.
For example, if the mother and other parent are separated but they share joint custody or the other parent has regular access to the child, it is possible to request a deferral of the woman’s removal by stating that removal of the woman and child from Canada (and from the other person with joint custody) would be in breach of the family court order.
Removal officers have limited discretion and can only defer in exceptional circumstances, including situations involving safety, risk to life, health concerns or a pending H & C application. Officers can also consider the immediate best interests of children, such as the need to complete the school year before removal from Canada.
Generally speaking, the longer the family court order has been the status quo, the greater the chance of success for a request to the CBSA to defer removal. As well, the woman usually has to have an application for permanent residence pending to succeed with a deferral request, most likely an H & C or spousal sponsorship application (discussed in detail in an earlier FAQ), since the existence of a family court order or proceedings will not defer her removal indefinitely.
Timely immigration legal advice for a woman in this situation is extremely important.
A request to the CBSA to defer removal needs to include any order made by the family court, specifying the relevant conditions in it (joint custody or access) and whether there is another court date pending. It would also have to state that deportation would affect the other parent’s rights as well as the best interests of the child, namely, to have contact and an ongoing relationship with both parents.
If a CAS has been involved with the mother and child, their written support of a request for a deferral of the mother’s removal can be very important. If there is a supervision order, for example, the CAS could comment on the inappropriateness of the mother and child being deported to a place where there may not be the resources or other supports the mother needs, which would have an impact on the child. The CAS could comment on how well the mother is doing in Canada and their prediction for her future in Canada. If the other parent or another relative is involved with the child as part of a family court order, the CAS could write a letter about the child’s best interests in remaining in Canada to have contact with that person.
It is very important that a woman with no status in Canada who has a family court order about a Canadian child speak to an immigration lawyer who understands family law as soon as possible.
If the woman has contemplated going to family court in order to formalize custody and/or access, and she has already been ordered deported from Canada, Immigration may view such a “last-minute” request or application to family court as a way to stall deportation rather than a legitimate application to the family court.
A request for a non-removal order (that the children cannot be removed from the city or province) in these circumstances will similarly be scrutinized by the family court, which has refused such applications where the court believes that there is no genuine family law dispute between the parties, just a desire to avoid a parent’s removal from Canada.
For this reason, it is very important that a woman without status in Canada with a Canadian child get both immigration and family law advice as soon as possible.
Making an application to family court without having made an application for permanent resident status (most often an H & C application) can also be seen with skepticism by both Immigration and the family court. It makes sense that in order to make an application to family court for custody of a Canadian child, a woman also has to demonstrate that she is taking steps to obtain her own status so that she can remain in Canada.
If a woman is incarcerated pending her removal from Canada due to previous criminal convictions in Canada, and her child is in the care of a CAS, it can be difficult to succeed in asking for a deferral of the mother’s removal since the child is already not in her care. The CAS may not be willing to provide information to support her request to defer removal, for example, if they are seeking Crown wardship.
She really needs legal advice in this situation.
If you are supporting a woman who does not have legal status in Canada but whose children do, you can assist her by providing basic legal information about her rights and obligations and can then refer her to a lawyer who does immigration law. Ideally, that lawyer will also be familiar with family law, since the two can intersect and overlap.
Depending on the woman’s situation, she may qualify for legal aid. You may also be able to assist her in obtaining initial legal advice by providing her with a 2-hour certificate or by connecting her with Duty Counsel at family court.
There may also be community resources that can also be of assistance. To access the community legal clinic system, enter the woman’s postal code in Legal Aid Ontario’s website at http://www.legalaid.on.ca/en/contact/contact.asp?type=cl. Legal clinics that do not practice family or immigration law often have referral lists of lawyers that they recommend.