Your Legal Rights is a project of CLEO and funded by the Law Foundation of Ontario.

1. This webinar is brought to you by Your Legal Rights: a website of legal information for people in Ontario. www.yourlegalrights.on.ca Your Legal Rights is a project of CLEO and funded by the Law Foundation of Ontario.

2. Please Note: The content of this webinar is based on law or policy that was current on the date the webinar was recorded. Your Legal Rights webinars contain general legal information. They are not intended to be used as legal advice for a specific legal problem. For more information on how to find a lawyer or to contact your local community legal clinic visit: www.yourlegalrights.on.ca/find-services Your Legal Rights is a project of CLEO and funded by the Law Foundation of Ontario.

3. About our presenter… Tamar Witelson is the Legal Director at METRAC.  Her background includes practice in labour and human rights law, and in Constitutional law for the Ontario Ministry of the Attorney General.  She was also counsel at the Human Rights Tribunal of Ontario, and before joining METRAC was staff lawyer at the Women’s Legal Education and Action Fund (LEAF), running an equality rights law and information website. Your Legal Rights is a project of CLEO and funded by the Law Foundation of Ontario.

4. Immigration, Women and Children Part 2: Specific Situations April 12, 2012 Tamar Witelson, Legal Director, METRAC Raoul Boulakia, Immigration and Refugee Lawyer, Toronto, Ontario

5. METRAC METRAC, the Metropolitan Action Committee on Violence Against Women and Children • works to end violence against women, youth and children • a not-for-profit, community-based organization www.metrac.org METRAC’s Community Justice Program • provides accessible legal information and education for women and service providers • focuses on law that affects women, from diverse backgrounds, especially those experiencing violence or abuse FLEW, Family Law Education for Women in Ontario • provides information on women’s rights and options under Ontario family law • in 14 languages, accessible formats, online and in print www.onefamilylaw.ca

6. Presenters Raoul Boulakia Refugee and Immigration Lawyer, Toronto, Ontario Tamar Witelson Legal Director, METRAC

7. Immigration, Women and ChildrenOpening Remarks Barriers to leaving an abusive relationship: • Concern about children and custody • Fear of homelessness and poverty • Controlling partners and other family members • Attitudes of family, friends and community members • Not knowing legal rights • Fear of the legal system • Not knowing about resources or how to find help • Discrimination • Immigration status or lack of status

8. Topics to be Covered • Introduction • Domestic Violence and Abuse • Non-citizens’ Rights in Family Court • Relationship Breakdown: Sponsored Permanent Residents • Sponsorship Breakdown: When Children are Involved • Sponsorship Breakdown: Women Who Sponsor a Partner • Immigration Consequences of a Criminal Conviction • Relationship Breakdown: Refugee Claimants • Travelling with Children • Custody • Abduction • Additional Resources Information is accurate as of April 12, 2012

9. Introduction:Domestic Violence and Abuse

10. Domestic Violence and Abuse  Assess safety: • make a safety plan • ensure she and her children are safe Abuse can be: • physical violence • threats of harm • treatment that causes emotional or psychological suffering In most emergencies, call 911

11. Domestic Violence and Abuse For information, if your partner is abusive or violent: Assaulted Women’s Helpline http://www.awhl.org/ • 24 hours/7 days; multiple languages • Toll-free: 1-866-863-0511;
TTY: 1-866-863-7868 Legal Aid Ontario http://www.legalaid.on.ca/en/getting/type_domesticviolence.asp • Available to every immigration status • Free telephone interpretation services for languages other than English and French • Toll-free: 1-800-668-8258; TTY: 1-866-641-8867 Family Violence Authorization Program (Legal Aid Ontario) • Free 2-hour emergency meeting with a lawyer • Offered through some shelters and community legal clinics • Toll-free: 1-800-668-8258; TTY: 1-866-641-8867 FLEW (Family Law Education for Women) Resources page http://www.onefamilylaw.ca/en/resources/

12. Introduction:Rights in Family Court

13. Rights in Family Court Example: • Naseem and her husband are permanent residents, but her 3 children were born in Canada and are citizens. • She and her husband have been having relationship difficulties for awhile now, and recently he told her he is returning to his home country and leaving her and the kids. She does not currently have a job. She wants to make sure she gets custody of the children and support for them and for herself.

14. Rights in Family Court • Every immigration status can go to Family Court • Possible Family Law Issues (for Naseem) • divorce/separation • child custody • child support • spousal support • Risk for non-status persons

15. Relationship Breakdown: Sponsored Permanent Residents

16. Relationship Breakdown: Sponsored Permanent Residents Example: • Zina is living in Canada and she is in a common law relationship with a Canadian citizen. • Her partner sponsored her and she is a permanent resident. He has always been controlling and jealous, but their problems are getting worse and she can’t take his abuse anymore. • He’s threatening to hurt her and have her deported if she leaves him.

17. Relationship Breakdown: Sponsored Permanent Residents Leaving an Abusive Sponsor • If Permanent Residence has been granted: • Permanent Resident status is not affected • Sponsor cannot withdraw • Government cannot remove her from Canada just because she leaves her sponsor

18. Relationship Breakdown: Sponsored Permanent Residents Leaving an Abusive Sponsor • How she can get financial support: • Sponsor’s obligations • Social Assistance • Look for Work

19. Relationship Breakdown: Sponsored Permanent Residents Example: • Zina is living in Canada and she is in a common law relationship with a Canadian citizen. • Her partner has sponsored her but the process is not complete, and she does not have legal immigration status here. She can’t take his abuse anymore and wants to leave. • He’s threatening to hurt her and have her deported if she leaves him.

20. Relationship Breakdown: Sponsored Permanent Residents Leaving an Abusive Sponsor • If Permanent Resident application in process/no status: • Sponsor can withdraw • Risk of being deported • Options: • Application for Permanent Residence based on Humanitarian and Compassionate (H&C) grounds • get legal advice about a possible refugee claim

21. Relationship Breakdown: Sponsored Permanent Residents Citizenship and Immigration Canada: Inland Processing Manual 5: “Officers should be sensitive where the spouse (or other family member) of a Canadian citizen or permanent resident leaves an abusive situation and, as a result, does not have an approved sponsorship. Officers should consider the following factors: • Information indicating there was abuse such as police incident reports, charges or conviction, reports from shelters for abused women, medical reports, etc.; • Whether there is a degree of establishment in Canada; • The hardship that would result if the applicant had to leave Canada; • The laws, customs and culture in the applicant’s country of origin; • The support of relative and friends in the applicant’s home country; and • Whether the applicant has children in Canada or/and is pregnant.”

22. Sponsorship Breakdown:when Children are Involved

23. Sponsorship Breakdown: when Children are Involved Example: • Zina is living in Canada and she is in a common law relationship with a Canadian citizen. • They have a child together who was born in Canada. Her partner has sponsored her but the process is not complete and she does not have legal status here. She is scared for herself and her child, and wants to leave. • He’s threatening to have her deported if she leaves him.

24. Sponsorship Breakdown: when Children are Involved Leaving an Abusive Relationship with a Child • If Permanent Residence application is in process: • he can withdraw sponsorship; she can be deported • a Canadian-born child cannot be deported • she can make an application to stay, on Humanitarian and Compassionate (H&C) grounds • H&C applications must take into account the “best interests of the child”

25. Sponsorship Breakdown: when Children are Involved Best Interests of the Child Factors: • Child’s physical, emotional, social and cultural welfare • Child’s age • Dependency between child and H&C applicant • Child’s establishment in Canada • Child’s medical or special needs • Child’s education (in/out of Canada) • Child’s gender (if relevant in another country)

26. Sponsorship Breakdown: when Children are Involved Best Interests of the Child Considerations: • Immigration officials should consider ALL children affected by H&C application • Can’t assume young children will adapt to change • Can’t avoid the issue as the parent’s decision to take or leave child in Canada • Medical or community supports to support parenting of child should be considered

27. Sponsorship Breakdown:Women Who Sponsor a Partner

28. Sponsorship Breakdown:Women Who Sponsor a Partner Example: Zina has sponsored her partner, he is abusing her, and she wants to leave • she can leave the relationship • if his application is in process, she can withdraw as sponsor • if his permanent residence is granted, she must fulfill the sponsor’s obligations • if he goes on social assistance, it is likely she will have to repay the government

29. Immigration Consequencesof a Criminal Conviction

30. Immigration Consequences of a Criminal Conviction Example: • Tanya and her boyfriend have been together for many years. Their relationship has always been difficult and at times violent. The last time they argued, the neighbours called the police and Tanya ended up in the hospital. • The police have charged her boyfriend with assault even though Tanya didn’t want them to. Tanya’s boyfriend is a permanent resident. He has sponsored her, but she is still waiting to become a permanent resident.

31. Immigration Consequences of a Criminal Conviction • No risk to Canadian citizens, regardless of country of origin • Unless citizenship based on fraud • Permanent Residents • Can be deported if convicted of “serious” crime

32. Immigration Consequences of a Criminal Conviction When police get involved: • police may check status • if she has no status, police may inform immigration If sponsor is convicted and deported: • and her sponsorship is incomplete, her application is at risk

33. Immigration Consequences of a Criminal Conviction Example: The police have charged Tanya’s boyfriend with assault. They are both permanent residents. • Permanent Residents: • Are not at risk if their partner is deported • If police lay dual charges, immigration status may be at risk from a criminal conviction • If partner reports/lies that her permanent residence was based on fraud, immigration status may be at risk

34. Presenters Raoul Boulakia Refugee and Immigration Lawyer, Toronto, Ontario Tamar Witelson Legal Director, METRAC

35. Relationship Breakdown:Refugee Claimants

36. Relationship Breakdown: Refugee Claimants Example: • Esther fled her home country and came to Canada seeking refugee protection. She is part of an ethnic and religious minority that is being persecuted in her home country. • While she was waiting for her refugee claim to be dealt with, she started living with her boyfriend who is a Canadian citizen. He has a temper and is verbally abusive. She wants to leave him.

37. Relationship Breakdown: Refugee Claimants Refugee Claim: • Is not directly affected by her relationship or by leaving • Esther’s boyfriend could contact immigration officials to undermine information in her refugee claim

38. Relationship Breakdown: Refugee Claimants Example: • Esther and her husbandfled their home country and came to Canada seeking refugee protection. Their refugee claims are connected and her husband has been handling most of the details.The stress has taken a toll on their relationship, and he gets very angry with her for small things. He is verbally abusive and threatens to hit her. She wants to leave him.

39. Relationship Breakdown Refugee Claimants Joint Refugee Claims: • She should get her own lawyer • Ask previous lawyer for file regarding her claim • Discuss domestic abuse with lawyer • Was she forced to agree or sign anything? • Does she fear husband or family in home country? • May cooperate with husband in a joint hearing • Her lawyer may ask for separate hearings

40. Relationship Breakdown: Refugee Claimants Example: • Esther fled her home country with her husband and childrenand came to Canada seeking refugee protection. Their refugee claims are all connected and her husband has been handling most of the details. The stress has taken a toll on their relationship and he gets very angry with her for small things. He is verbally abusive and threatens to hit her. She wants to leave him.

41. Relationship Breakdown: Refugee Claimants Refugee Claims Including Children: • Children will need a Designated Representative • Usually a custodial parent • Relative/Friend/Social worker/Lawyer • Designated Representative chooses lawyer for children

42. Travelling with Children

43. Travelling with Children Example: • Lucia and her husband are both permanent residents. They have a child together, and are recently separated. It was messy and they are not on good terms. • She has sole custody of their child, and he has access. • He is still very angry and accuses her of not letting him see their child. She wants to visit her family back home, but does not know what she has to do, so that the child can travel with her.

44. Travelling with Children If you have custody: • Carry a copy of your custody order or agreement • Get a notarized letter of permission from the other parent, if possible • Find out the laws about child custody in the home country

45. Travelling with Children If you have custody (continued): • Ensure you have all travel documents for you and the children • Ensure you all have a Permanent Resident Card, valid on the return date • Check whether the amount of time abroad will affect permanent residence or delay citizenship application

46. Travelling with Children Example: • Lucia and her husband are both permanent residents. They have a child together, and are recently separated. It was messy and they are not on good terms. • She has sole custody of their child, and he has access. • Lucia is worried that her husband is going to take the child out of Canada and not come back.

47. Travelling with Children Child Abduction • It is easier to prevent an abduction than to recover a child Precautions: • Get a clear, detailed custody order or agreement • It should say that the child cannot travel outside of Canada without your permission • It can say that you or the court holds the child’s or other parent’s passport

48. Travelling with Children Child Abduction • Precautions (continued): • Get detailed travel information, plans, people and places where the child will be • Keep a recent picture of your child • Teach your child how to make a long distance, collect call

49. Travelling with Children Child Abduction • Response: • Contact the local police • Contact an immigration lawyer • Contact the Consular Affairs Bureau in Canada • 1-800-387-3124 or 1-800-267-6788 • (24 hours/7 days a week)

50. Travelling with Children Child Abduction • The Hague Convention on the Civil Aspects of International Child Abduction may apply if: • You have legal custody of the child • The child is under 16 years old • The country where the child was taken has signed the Hague Convention • For more information: • http://www.voyage.gc.ca/publications/child-abductions_enlevements-enfants-eng