This case concerned the role of the best interests of the child in deportation proceedings.
LEAF intervened before the Ontario Court of Appeal, in coalition with:
- The African Canadian Legal Clinic
- The Coalition of Visible Minority Women (Ontario) Inc.
- The Congress of Black Women of Canada
- The Metro Toronto Chinese & Southeast Asian Legal Clinic
- The National Action Committee on the Status of Women
The African Canadian Legal Clinic took the lead in preparing this case.
Maria Joyce Francis, a Grenadian woman, lived in Canada for nine years without immigration status. She had three children, one born in Grenada and two born in Canada. Ms. Francis was ordered to bedeported from Canada, and was unsuccessful in trying to have the order set aside under theImmigration Act. Her children brought an application in the Ontario Court (General Division) to have the deportation stopped. The children argued that their mother’s deportation would violate their right to remain in Canada, and their right to remain as part of a family unit. The judge granted the order and stopped the deportation. The Minister appealed to the Ontario Court of Appeal.
The Coalition argued that the judge appropriately exercised jurisdiction to stop the deportation order. The Minister’s order and the proceedings under the Immigration Act failed to consider the children’s interests before ordering Ms. Francis’ deportation. Sections 7 and 15 of the Charter required that any proceedings which could potentially sever a parent-child relationship:
- Take into account the caregiving and interdependent relationship between children and their caregiving parent(s), and between the children and their siblings
- Determine the children’s interests in light of the overlap between those interests and those of the caregiving parent(s)
- Fairly assess any potential for significant harm resulting from the severance of the relationships
Failing to consider those factors had a disproportionately negative impact on dependent minor children of single mothers. It also had a disproportionately negative impact on children of mothers of a race, religion, country of origin, or ethnic background that had historically received unfavourableconsideration for entry into or permanent residence in Canada.
The Ontario Court of Appeal held that the case was an immigration matter, which was generally best addressed under the Immigration Act and through the Federal Court as opposed to the superior court. As a result, it set aside the lower court’s order. However, the Court ruled that Ms. Francis and her Grenada-born son would be allowed to stay in Canada while they made a new application for an exemption under the Immigration Act.
LEAF is grateful to Yola Grant, counsel in this case.
Read the Ontario Court of Appeal’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].