COMMENTS ON FAMILY ISSUES CONSULTATION DISCUSSION DOCUMENT
30 August 2000
COMMENTS ON FAMILY ISSUES CONSULTATION DISCUSSION DOCUMENT
30 August 2000
INTRODUCTION
The CCR approaches family issues from the perspectives
of human rights obligations and the promotion of the integration of refugees
and immigrants in Canada.
The International Covenant on Civil and Political Rights states at Article 23.1: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State". Canada, as a signatory to this Covenant, has an obligation to protect the family, including through the promotion of family reunification.
Canada also has particular obligations for family reunification under the Convention on the Rights of the Child. Article 10.1 states that "... applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner".
The UN Committee on the Rights of the Child in 1995 expressed its concern over Canada's "insufficient measures aimed at family reunification with a view to ensure that it is dealt [with] in a positive, humane and expeditious manner. The Committee specifically regrets the delays in dealing with the reunification of the family in cases where one or more members of the family have been considered eligible for refugee status in Canada as well as cases where refugee or immigrant children born in Canada may be separated from their parents facing a deportation order." (Para. 13)
Policies promoting family reunification are also essential for the integration of newcomers. Being reunited with family members is one of the key elements permitting refugees and immigrants to feel at home in Canada.
COMMENTS ON PROPOSALS
1. Broadening definition of "dependent child" by increasing the age from under 19 to under 22.
The CCR supports increasing the age limit for dependent children. The current cut-off causes great hardship for families, particularly for refugee families, who are forcibly displaced and who find their families torn apart. In the case of young adult daughters, the need for the increase is particularly strong, since in many societies it is completely unacceptable and even dangerous for young single women to live on their own.
However, we note that children 22 years old and older continue to be part of their family and in many cultures cannot safely (or humanely) be left behind. This is especially true for young single women, students and young people with some kind of disability. There needs to be flexibility to deal with this. The age limit should not be used as a hard and fast rule, but rather as a guide.
We also draw attention to the need for consideration for compulsory military service. In many countries this continues to be an obligation, especially for young men. For their period of service (in many countries more than 12 months) they are generally unable to leave the country for immigration to Canada. The period of military service also effectively delays the point at which these young people become independent from their families, since during their service they are generally not earning more than a token amount and are not preparing themselves for the workforce. Young men and women doing military service should be deemed dependants.
The CCR urges that children over 21 who continue to be dependent on their family be considered "dependent children".
2. Opening up family class to adoption-like cases in keeping with Hague Convention principles.
The CCR supports this direction which recognizes that full adoption is not possible in some countries. Consideration should also be given to the situation of displaced families and families from countries affected by war or other massive disruption, where the normal adoption procedures may not be possible.
However, we are concerned that the proposal does not provide any details. For example, the paper says the new categories would be "limited to specific circumstances and subject to a restrictive definition". The CCR would like to be consulted on the proposed "specific circumstances" and the "restrictive definition".
The guiding principle in deciding whether to include children as part of the family must be the best interests of the child. CCR members are aware of many situations where children are effectively adopted into a family, although not formally adopted. They would suffer great hardship if separated from their family. In addition, in refugee and refugee-like situations, children whose parents have died or disappeared are often taken in by relatives or others who become their new family.
CIC must certainly be concerned about the possibility of child abduction. However, this risk must be weighed against the risk of acting against the best interests of children by separating them from what is effectively their family. It will not always be possible to have all the relevant information (such as death certificates of parents), especially in situations of conflict. Rather than denying children entry to Canada, CIC should develop mechanisms to ensure that if new information comes forward, for example, the parents are found, the children can be reunited with their original family.
3. Modernizing the definition
of family class
The CCR welcomes the proposed
introduction of "common law partner" into the definition of family class
and dependant. This will help resolve problems faced by couples married
according to traditional rites and who do not have marriage certificates.
It will also finally provide for family reunification for same sex couples.
The CCR is however concerned about the one-year cohabitation requirement, particularly as it affects same sex couples. As suggested in the discussion paper, same sex partners may not be able to cohabit because of the risk of persecution. The "de facto partner" does not offer a satisfactory solution to this problem, since it is proposed that the "de facto partner" not be included in the definition of dependant. This would mean that refugees who are accepted as refugees in Canada on the basis of their sexual orientation will not be able to include on their landing application their same-sex partners, if they have not cohabited for the required 12 months, even though the relationship may have lasted for years. They will be required first to land themselves and then to apply to sponsor, which in turn requires satisfying the financial criteria, something that is often a challenge to newly arrived refugees. Thus these same-sex partners will face significant delays in family reunification.
This problem would be addressed by including "de facto partner" within the definition of dependant.
4. Creating an in-Canada
landing class for sponsored spouses and common-law partners
The CCR welcomes the proposal
to regularize landing processes for sponsored spouses and partners in Canada.
This will be particularly useful if, as proposed, partners who are overseas
are permitted to travel to Canada for processing in Canada. The CCR is
concerned that the in-Canada processing apply not just to applicants from
countries whose nationals do not need visas to travel to Canada.
However, the CCR opposes restricting the in-Canada class to applicants who are not subject to enforcement or removal proceedings and to applicants who have a valid travel document or passport. These restrictions are particularly important if, as suggested, the H&C guidelines are then narrowed with respect to processing on the basis of a conjugal relationship.
Among those subject to enforcement or removal proceedings are refugee claimants who, while not in the view of the Immigration and Refugee Board meeting the Convention refugee definition, come from countries torn apart by war or massive violations of human rights. Among those without valid travel documents are stateless persons and persons from countries where there are no authorities in place to issue documents. The CCR believes that the Canadian government must not discriminate against such groups in measures designed to protect family unity.
Take, for example, an Algerian citizen who makes a refugee claim, is refused but not deported because of the widespread human rights abuses occurring in Algeria. She marries a Canadian citizen, but is excluded from the proposed class. From the point of view of the CCR, such a person is, on the contrary, someone whose landing should be facilitated, since she not only has strong family ties to Canada (i.e. a Canadian husband) but is a displaced person who cannot safely return home.
The proposed restrictions will have the effect of forcing spouses and common law partners of Canadian residents or citizens to go through the refugee determination system, rather than being sponsored under the family class. A refugee who arrives in Canada and makes a refugee claim would apparently not be eligible under this proposed class, because she is under a conditional removal order and, in many cases, because she does not have a valid travel document. Thus she will be forced to go through the refugee determination system, even though her spouse or partner is a permanent resident or citizen.
The CCR is also concerned at the absence of any provisions to speed the family reunion of Convention refugees recognized in Canada. If there are to be measures to speed family reunification for immigrant families, even more should there be measures for refugee families. Currently refugees can include spouses and dependent children on their permanent residence application form. However, processing is often extremely slow, taking months and often years. The processing time only prolongs a separation that began a long time previously, since refugees can spend quite long periods in the refugee claim process in Canada and may have been separated from their families for some time even before they arrived in Canada. This separation is particularly painful for refugee families, firstly because it is an involuntary separation forced on them by persecution, and secondly, because the family members left behind are often themselves facing persecution or living in harsh and unstable circumstances in a country of asylum.
The discussion paper proposes that once a sponsorship undertaking has been approved, spouses and common-law partners outside Canada would have their entry facilitated. The CCR proposes that, in parallel to this measure, spouses, common-law partners and dependent children of Convention refugees in Canada who have submitted an application for permanent residence have their entry facilitated.
This proposal would help to address shortcomings in Canada's compliance with its international human rights obligations to protect family unity, including the obligation under the Convention on the Rights of the Child to ensure speedy family reunification of children with their parents. As noted above, Canada's record in this area has been criticized by the UN Committee on the Rights of the Child which in 1995 expressed its concern over Canada's "insufficient measures aimed at family reunification with a view to ensure that it is dealt [with] in a positive, humane and expeditious manner. The Committee specifically regrets the delays in dealing with the reunification of the family in cases where one or more members of the family have been considered eligible for refugee status in Canada..."
5. Exempting spouses, common-law partners and their dependants from medical inadmissibility on basis of excessive demand.
The CCR fully supports this recommendation. It is unjust and inhumane to keep families separated on the basis of medical problems. This is routinely recognized by the Immigration and Refugee Board, which as noted, frequently decides in favour of applicants rejected on the basis of medical inadmissibility.
Unfortunately the discussion paper is phrased to suggest that dependent children would not be affected by this proposal, unless they were the dependants of the spouse or common-law partner. The CCR understands that this is simply a confusion in the drafting of the discussion paper, and that sponsored children are also to be exempt from this inadmissibility category.
The April 6 announcement also contained a proposal that refugees selected overseas be exempted from the medical inadmissibility criterion. Although this is not a family class issue, since it is being handled by Selection Branch, the CCR takes this opportunity to emphasize the importance of this recommendation and to urge the government to put it into practice.
Currently, refugees selected abroad are inadmissible if it is considered that they will cause excessive demands on Canada's health or social services. This means that some refugees with particular health problems are denied resettlement, even though the refugees with medical needs are often among the most vulnerable.
6. Reducing the age for sponsorship from 19 to 18 years.
The CCR supports this proposal since it will permit quicker family reunification for a few people.
The CCR notes, however, the need for some measures to respond to the family reunification needs of minor refugee children who are in Canada without their parents and who cannot go to another country to be reunited with their parents. Similarly, there needs to be some mechanism to deal with the situation of minors with refugee status in Canada, whose family members in Canada are facing deportation. While adult refugees in Canada can include spouse and children on their application for landing, the reverse does not apply for minors recognized as refugees.
7. Reducing the length of sponsorship undertaking from 10 to 3 years for spouses and common-law partners.
The CCR welcomes this proposal. It represents a very positive step towards ensuring newcomers' access to rights and services and towards reducing the relationship of dependency created by sponsorship, with all the associated dangers of conjugal violence. For the same reasons, the reduction should also apply to sponsorships of fiancé-e-s and children. The CCR notes that in Québec, this provision has already been extended to fiancé-e-s.
8. Introducing a bank "guarantor" arrangement for sponsors who cannot meet the Low Income Cut-Off
The CCR supports measures to introduce greater flexibility in determining which sponsorship applications are accepted. A bank guarantor arrangement is one way to introduce more flexibility. However, it is not the only way.
The CCR recommends in addition that income figures be adjusted for cost of living variances between centres. The LICO figures apply uniformly across the country: in all cities with populations over 500,000 the income requirements are the same. Yet cost of living, particularly cost of housing, varies significantly between cities of this size. Per capita incomes in different cities vary correspondingly, to reflect the difference in cost of housing. Potential sponsors in cities with lower cost of living therefore face a larger hurdle in meeting LICO than sponsors in cities with higher cost of living (and higher average incomes).
The CCR is also concerned that there be flexibility to take into account of all the circumstances of the case. Potential sponsors who cannot meet LICO may nevertheless have plans in place to ensure that they fulfil the sponsorship undertaking. Discretion should remain with the immigration officer to accept a sponsorship application, based on factors other than LICO or bank guarantees.
9. Simplifying calculation of income for purpose of sponsorship
The CCR supports giving people different options for calculating income.
In addition, the CCR recommends that foreign income be allowed to be part of the calculation (currently only in-Canada income is acceptable). We do not see why foreign income should be excluded, if it can be documented and the money is deposited in Canada.
We also urge that financial resources of the sponsored person(s) be integrated into the income calculation. For example, parents may have significant pensions that they will bring with them and will be used in the support of the household.
10. Sponsorship processing - fee remission
Again, the CCR supports offering flexibility, by offering refused sponsors the option of withdrawing their application and having the rest of the recovery fee refused.
11. Giving five bonus points for Canadian spouse, common-law partner or parent
The CCR supports this proposal which expands possibilities for family reunification. (We understand that the proposal simply formalizes existing policy). Given the importance of a close family member for successful establishment in Canada and the Act's goal of reuniting families, it would make sense to grant more than 5 points.
12. Barring sponsorship for persons in default of court-ordered spousal or child support payments
While there are good reasons for barring from sponsorship people who have defaulted on support payments, the CCR urges that some discretionary authority be retained for case by case review. In particular, where there are children involved, the best interests of the child need to be considered. There will be some cases when the best interests of the child will require family reunification, even though the sponsor has for some reason been in default (maybe simply because of a temporary reduction in income).
13. Barring sponsorship for persons convicted of a crime related to domestic abuse
The CCR supports measures to prevent abusive partners undertaking new sponsorships which will lead to further abuse of vulnerable partners (for example, serial sponsors of "mail-order brides" who abuse their wives). The regulations could also usefully address the situation of victims of abuse who are either sponsored by or sponsors of the abuser. In either of such cases, the sponsorship should be automatically canceled. Since it takes time to achieve a conviction, it is in addition necessary to have effective mechanisms for breaking the sponsorship before there is a conviction.
With respect to barring sponsorships from persons convicted of domestic abuse, the CCR again urges that some discretionary authority be retained. There will be cases when the crime committed was relatively minor and the offender can be considered rehabilitated in under five years. Most importantly, there must also be consideration given to the best interests of the child.
There may also be occasions when the person who suffered the abuse would be the person most negatively affected by a denial of sponsorship. For example, a woman who had been beaten by her husband, but still living with him (perhaps after counseling), might want to sponsor her parents. In order to meet LICO, she may need her husband to be a joint sponsor. Under the proposal, she - the victim of the domestic abuse - would be prevented from bringing her parents to Canada.
An absolute bar on sponsorship might also have the effect of discouraging victims of abuse from cooperating with prosecution of their abusers because they want to avoid this negative consequence.
14. Barring sponsorship for persons in receipt of social assistance other than for reasons of disability.
The CCR is strongly opposed to this proposal, which would deny people their basic right to family unity on the basis of their economic situation. If this proposal is brought into effect, spouses and common-law partners will be kept separated simply because they cannot find employment. Children will be denied their basic right to be with their parents because of their parent's economic situation.
The proposal runs clearly counter to Canada's obligations under the Convention on the Rights of the Child, notably Article 10 which states "applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner".
The suggestion that the intending immigrant can apply independently and receive five bonus points and possible H&C consideration does little to reassure. Current experience suggests that visa officers rarely give positive H&C decisions. The proposal would also tend to offer solutions mostly to the more privileged applicants (who have the education and job experience that Canada is seeking in independent immigrants).
It also offers no solution for parents who are trying to sponsor their minor children, since minor children cannot apply as independents.
The CCR agrees that it is not logical to ask recipients of social assistance to sign an undertaking for their family members. However, it does not follow that they should therefore be denied family reunification. Rather, they should be granted family reunification without the need for a sponsorship undertaking.
15. Improving ability to recover costs of social assistance in cases of sponsorship default.
There are many reasons why sponsored family members may receive social assistance. In some cases the sponsor has failed to live up to his or her obligations. But in other cases the sponsor is not at fault: there may have been illness or loss of employment. In some cases, the sponsor may have been subjected to physical or psychological abuse by the sponsored person. The system for collecting on debts needs to be sensitive to the wide range of possible extenuating factors.
The CCR therefore recommends that a mechanism be created for determining whether there are humanitarian reasons for not collecting on debts associated with a sponsorship undertaking.
16. Increasing the duration of sponsorship undertakings for children from 10 years to 10 years or age 22, whichever is longer
The CCR is completely opposed to this proposal to extend the sponsorship period for children. On the contrary, the CCR calls for it to be reduced to 3 years in line with the proposal for spouses/common law partners.
The rationale given for this proposal does not in our view appear to be at all compelling. The proposed increase in age from under 19 to under 22 for dependent children recognizes that children continue to be part of the family after age 19. This is a "dependent" in the sense of Immigration Act. In this sense, a spouse remains a "dependent" of the sponsor until death or divorce. However, it is not - thankfully - being proposed that undertakings for spouses and partners should last until death or divorce. By analogy, sponsorship of children should not last as long as they fit within the "dependent" definition.
Parents of all children in Canada, whether immigrant or citizens by birth, have legal responsibilities towards their children until they reach the age of majority. These responsibilities already exist and will continue to exist independently of any sponsorship undertaking.
In the interests of promoting integration and healthy family relationships, the length of the sponsorship should be reduced, not lengthened, for sponsored children. Young people growing up in Canada need to know that they are fully accepted as members of society. A prolonged link of dependency on their parents because of their arrival in Canada as an immigrant sends a message that they are not full members, even long after they have become citizens. It also puts an additional strain on what is in any case often a stressful relationship between adolescent and parent.