Note: This answer is provided by Kristin Marshall, LL.B, past Immigration Staff Lawyer for Downtown Legal Services, Toronto.
Answer: The timing of a woman’s application to family court can be very important to her immigration case. If she has lived in Canada for many years and has had custody of her Canadian child without formalizing that relationship in family court, a last-minute application to the court when Immigration is making arrangements to deport her from Canada can be seen as an attempt to avoid deportation rather than as a legitimate application.
If the application is brought by the child’s other parent who has joint custody or an ongoing and significant relationship with the child, the prospect of success may be greater, as such an application would appear to be more about the child’s best interests rather than the mother’s interest in trying to avoid removal from Canada.
The same principle applies with an application for permanent residence on H & C grounds. If the woman has lived for several years in Canada without status and makes an H & C application only after she has come to the attention of Immigration authorities who start making arrangements to remove her, the Canada Border Services Agency (CBSA), the agency that arranges deportations from Canada may also refuse to consider a last-minute request to defer her removal pending consideration of her H & C application, even if it involves a Canadian-born child.
This is why timely immigration legal advice is so important.
If it is possible to demonstrate that there has been a family court order in place for some time, that the order either for joint custody or regular access to the child has been in existence and that all the parties have benefited from it, it is more likely that Immigration will take notice of such an order, and consider deferral of the woman’s removal than if it has been hastily obtained at the last minute.
Under immigration law, deportation cannot be ordered where it would be in breach of another court order. This includes a subpoena (an official court request that a person attend court) to appear in either a criminal or family court matter. If someone has been charged with a criminal offence, the requirement that they appear in court at a future date means that Immigration cannot deport them before that court appearance because it is a court-ordered appearance. Sometimes Immigration asks the Crown Attorney’s office to “stay” a pending criminal charge (usually when it is not a serious charge or one involving serious physical injury) so that they can deport a person.
If there is a family court proceeding that could result in an order that would conflict with Immigration’s ability to deport a woman, notice must be given to the Minister of Immigration so that the Minister’s representative, a lawyer from the Department of Justice, has the opportunity to come to the family court to present the Department’s views on whether or not the family court order should be made. While notice has to be given, the Minister of Immigration’s lawyer does not always attend the family court proceeding.
If someone has been asked to be a witness in a criminal trial and they do not have status in Canada, it is essential that the Crown’s office issue a subpoena for the witness to appear at the trial in order for Immigration to consider it a court order that prevents the witness’s deportation. Merely having a letter that states that the person is a witness is often not sufficient to meet the requirement to stop a deportation under immigration law.
Similarly, if a woman is a party in a family law matter that either involves an application for custody or an application in which the CAS is involved, merely being a party may not be enough to stop her removal from Canada. In some cases, she must have a subpoena issued for her to be present at family court in order for Immigration to consider the subpoena an “order” that cannot be breached by her deportation. Somewhat astonishingly, Immigration has held the view that parties to family court proceedings can still participate by teleconference from another country.
How Immigration views or deals with family court proceedings varies widely, depending on the facts of any particular situation. For this reason, it very important that a woman who does not have status in Canada who has a Canadian child get legal advice from an immigration lawyer familiar with family law as soon as possible.
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. Legal clinics that do not practice family or immigration law often have referral lists of lawyers that they recommend.