Category: Uncategorized

Legal Aid Ontario Eligibility under the new LASA, 2020 Rules

Last year, Ontario passed the Legal Aid Services Act, 2020 (LASA, 2020).1 In October, Legal Aid Ontario (LAO) circulated the new rules implementing LASA, 2020.2

In order to receive LAO services, clients must:

  • You must tell LAO if your situation, or that of your spouse or guardian, changes. Clients must abide by the continuing obligation to provide information, either by directly informing LAO of any changes to their financial situation, and/or by providing LAO with permission to directly consult other agencies (such as social services).3
  • You must cooperate with LAO's re-assessment of your financial eligibility on request.4
  • You must have a limited income and limited assets to receive legal aid. For certificate services, the threshold for single persons is $12,330 for single borders, or $18,795 for single persons otherwise; it goes up with larger families to a maximum of $50,803 for a family of five (or more).5 A client may only have $1,504 in liquid assets if a single person, or up to $3,007 for a household of 3 or more persons.5
  • You may be required to enter into a contribution agreement with LAO. This can happed under various circumstances, including simply that LAO "is satisfied that the individual ... is able to contribute to the cost of providing legal aid services to the individual".6

Notably, the income threshold for a single person is lower than the Low Income Cut-Off for large cities (which for 2019, was $21,899 for a single person).7 If you are receiving the maximum benefits under Employment Insurance,8 as a single person, this is well about the LAO threshold.

  1. S.O. 2020, c. 11, Sched. 15, online: https://www.ontario.ca/laws/statute/20l11. []
  2. LAO, Legal Aid Service Rules, online: https://www.legalaid.on.ca/wp-content/uploads/Legal-Aid-Services-Act-2020_Rules-EN.pdf [LASR, 2020]. []
  3. LASR, 2020, ss. 9-11. []
  4. LASR, 2020, s. 9(3)(a). []
  5. LASR, 2020, TABLE: FINANCIAL ELIGIBILITY. [] []
  6. LASR, 2020, s. 9, especially at s. 9(b). []
  7. Statistics Canada, Table 11-10-0241-01 Low income cut-offs (LICOs) before and after tax by community size and family size, in current dollars, online: https://doi.org/10.25318/1110024101-eng. []
  8. Currently the maximum is $30,940. Canada, Service Canada, "How much you could receive" in "EI regular benefits: How much you could receive", 27 September 2021, online: https://www.canada.ca/en/services/benefits/ei/ei-regular-benefit/benefit-amount.html. []

Proxy marriage in a time of COVID-19, Part II

The Wedding by Proxy of Marie de' Medici to King Henry IV by Peter Paul Rubens (1622–25)

Continued from "Proxy marriage in a time of COVID-19, Part I"

History of the Provision

The exclusion of proxy marriages arises out of a 2015 amendment to the IRPR, such that Reg. 5 excludes proxy marriages from the definition of "spouse". As noted in the Regulatory Impact Analysis Statement (RIAS),1 the same amendment raised the minimum age of marriage from 16 to 18, and tied the two amendments together. Both amendments, according to the RIAS, were meant to prevent early and forced marriages. The RIAS includes a callback to a Private Member's Motion (M-505) from 2014.2 When raising the motion in the House, MP Stella Ambler (Mississauga South, CPC), stated:

...I am honoured to rise in the House today to introduce my motion, which pertains to telephone, fax, Internet or proxy marriages; specifically, as they relate to immigration to Canada.

...My motion is related to forced marriages, in that the sad truth is that these practices can be used to force individuals, usually women and girls, into non-consensual marriages.

...A marriage by proxy is one where one or even both participants are not present at the ceremony and are represented by another person. Sometimes, these marriages are conducted via telephone, the Internet, or even by fax. Some visa offices around the world encounter marriages by proxy on a regular basis, as it is a cultural practice in some parts of the world. Rest assured, such marriages are not legally recognized when performed in Canada.

House of Commons Debates, 41st Parl. 2nd Sess., Vol. 147, No. 130 (23 October 2014), online: https://www.ourcommons.ca/Content/House/412/Debates/130/HAN130-E.PDF, at p. 8747 (Stella Ambler) [Ambler, Debates, 23 October 2014].

The previous applicability of proxy marriages was addressed in the "Family Class" manual posted on the IRCC (then CIC) website in 2015, which itself dated from 2006.3 The definition of marriage included therein stated: "A marriage must be legal both in the country where the couple got married and under Canadian federal law i.e. the Marriage (Prohibited Degrees Act) with respect to consanguinity and the Criminal Code with respect to polygamy and bigamy."4 Elsewhere it said "A marriage that is legally recognized according to the law of the place where it occurred is usually recognized in Canada. ... A marriage, which took place abroad, must be valid both under the laws of the jurisdiction where it took place and under Canadian federal law."5

The same 2006 manual defines proxy marriage as "At a proxy marriage one of the participants is not present and has named a proxy to represent him or her. If the law of the country in which the marriage ceremony was performed permits proxy marriages, they are legal marriages for immigration purposes, provided they are legal under Canadian federal law."6

MP Ambler stated that "... the focus of the motion is the increasing concern that some marriages by telephone, fax, Internet or proxy can make it easier for someone to be forced into a marriage to which they do not consent. Indeed, as I have stated, there have been reports of spousal sponsorship cases that were, in fact, cases of forced marriages facilitated by proxy."7 The evidence cited was:

  • "there have been reports"7; and
  • "While not all telephone, fax, Internet, or proxy marriages are forced, it is clear from the information received by visa officers in Canada's regional offices that some most certainly are."7

The RIAS stated that:

The nature of proxy, telephone, fax, Internet and other similar forms of marriage can help to facilitate forced marriages because one or both spouses are not physically present, making it more difficult to determine that they consent to the marriage. In recent years, a small number of cases of forced marriage facilitated by proxy have been brought to the attention of Citizenship and Immigration Canada (CIC).

RIAS, p. 737.

The RIAS also stated - misleadingly it should be said - that "In the existing regulatory framework, proxy, telephone, fax, Internet and other similar forms of marriage, including those forms used to facilitate forced marriage, are not explicitly barred, and there are no grounds to refuse them as long as they are legally valid in the country in which they occurred."8 The existing regulatory network absolutely allowed applications to be refused where consent or genuineness was not shown, and this remains the case today. Furthermore, if consent was the issue, then a section ought to have been introduced requiring proof of the free consent of the parties to the marriage, rather that excluding marriages made with full consent but by proxy.

The RIAS goes on to state:

The proposed amendments would bar marriages conducted by proxy, telephone, fax, or Internet and other similar forms to help the immigration system make it impossible for forced marriages conducted by these means to be a mechanism to gain immigration status in Canada (i.e. through “marriages of convenience,” as described above). They may also help reduce the number of vulnerable individuals who fall victim to forced marriage in order to gain immigration status in Canada.

RIAS, p. 738.

Again, this statement is misleading because there is no evidence that excluding proxy marriages would "help the immigration system make it impossible for forced marriages conducted by these means to be a mechanism to gain immigration status in Canada". The same type of bare assertion is raised where the RIAS touches on why the existing "bad faith" exclusion is allegedly insufficient. It states9:

  • "CIC officers currently have the authority under the 'bad faith' provisions (section 4) of the Regulations to consider an otherwise legally valid marriage as invalid for immigration purposes where there are suspicions that the marriage is not genuine or that it was entered into primarily for the purpose of acquiring any status or privilege under the Act." - this much is accurate
  • "Consideration was given to strengthening only the administrative guidelines that correspond to the “bad faith” provisions in order to direct officers to increase the scrutiny of proxy marriages." - there is no indication of what this "consideration" was, or what its outcome was
  • "Explicitly identifying such a marriage as an 'excluded relationship' through a regulatory amendment to section 5 of the IRPR, however, would strengthen the tools to deny all such marriages for immigration purposes." - this sentence as written is illogical, as if effectively reads "Making it illegal would make it illegal" - the equivalence of proxy marriages and bad faith marriages is here assumed without any evidence
  • "The proposed regulatory amendment would also make clearer the policy intent of denying all such marriages for immigration purposes, given their possible connection to early and forced marriage." - similarly, this sentence illustrates the sudden jump to the conclusion that all proxy marriages are made in bad faith, and tosses out there the accusation, also made without evidence, that proxy marriages are connected to forced and early marriage

Later on in the RIAS, CIC admits that it (a) does not track proxy marriages, and (b) that they comprise a very small proportion of the marriages dealt with in immigration applications - perhaps 0.5%.10

Why are Proxy Marriages Excluded?

Evidence before the Amendment

Evidence at Standing Committee on Citizenship and Immigration Meeting March 25, 2014

Mr. Costas Menegakis (Richmond Hill, CPC) asked a witness:

Proxy marriages are legal right now. It's true that a couple who are married over the phone or even by fax can be eligible for the spousal sponsorship program. I'm under the impression this could or would lead to more forced marriages.

In any event, do you think this practice needs to be stopped? Should proxy marriages be banned from the spousal sponsorship program?

House of Commons, Standing Committee on Citizenship and Immigration, Evidence, 41st Parl., 2nd Sess. (25 March 2014), CIMM No. 17, online: https://www.ourcommons.ca/Content/Committee/412/CIMM/Evidence/EV6484465/CIMMEV17-E.PDF [CIMM 25 March 2014], p. 14.

In response, witness Prof. Audrey Macklin stated: "...It's not my understanding—but I have not studied it—that this is a particularly serious problem with regard to the incidence of forced marriage, but having said that, I confess that I have not done a close study of it."

Witness Elizabeth Long indicated "...I don't know that being married over the phone would be any different from someone standing next to them in the aisle in a church or in a mosque. If there is abuse in a situation, there will be abuse whatever the form of marriage, in my experience. That is just my opinion."

 Witness Ms. Adeena Niazi (Executive Director, Afghan Women's Organization) stated:

...in most of the Muslim countries, and it was mentioned that this also happens in Israel, proxy marriages are a culturally and legally acceptable means for a couple to unite. These practices are most common in countries affected by war. These marriages are legal, binding, and it's with the consent of both parties. We have witnessed many successful proxy-arranged marriages in which the sponsor has provided unconditional support.

CIMM 9 April 2014ibid., p. 12.

Later she added:

Also, I spoke about proxy marriages. Proxy marriages, especially for the refugees who cannot go back to their country or who cannot...this is also something. At the beginning I was also a little worried about that, but now I see many proxy marriages that have been very successful. The sponsor has provided unconditional support for their spouses who are sponsored here. Most of them work because they know each other. They cannot just do it by phone or by...and it doesn't make a difference if you're sitting together at the same table or you are doing it by phone.

CIMM 9 April 2014ibid., p. 15.

SALCO et al. Response, October 2014

A joint response from a number of legal clinics and practitioners led by the South Asian Legal Clinic of Ontario issued a written response to the Standing Committee on Citizenship and Immigration, in reply to Motion M-505.11 In that response, SALCO et. al noted:

[SALCO] has collected data and presented a report on forced marriage in the Canadian context. There has been no indication from the data collection / research done by SALCO that forced marriage victims face “proxy marriages”. In fact, in the majority of the cases surveyed forced marriage victims were married in person and not by proxy marriage. A ban of proxy marriages will do little, if nothing, to protect victims of forced marriage. This proposed motion suggests once again that our law makers and government are focusing on limiting spousal sponsorship under the guise of “protection of victims of forced marriage”. Banning proxy marriage has no nexus to protecting victims of forced marriage based on empirical evidence and data collected about the Canadian experience[.]

SALCO Response, p. 2.

The response also notes that the banning of proxy marriages would be in contravention of the UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages,12 which states:

1. No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law.

2. Notwithstanding anything in paragraph 1 above, it shall not be necessary for one of the parties to be present when the competent authority is satisfied that the circumstances are exceptional and that the party has, before a competent authority and in such manner as may be prescribed by law, expressed and not withdrawn consent.

UN Marriage Convention, Article 1.

While the response fails to mention that Canada is not a state party to that convention, it is nevertheless odd that no consideration was given to to this point, nor to any of the other points raised in the response.

Report of the Standing Committee on Citizenship and Immigration, Strengthening the Protection of Women in Our Immigration System, February 2015

The Report references Private Member's Motion M-505 mentioned above.13 The Report notes "The Committee wanted to know whether the type of marriage – proxy, arranged, 'love' – made any difference in terms of the sponsored spouse’s vulnerability to abuse. Some witnesses stated that abuse happens in all kinds of marriages."14

Evidence at Standing Committee on Citizenship and Immigration Meeting March 31, 2015

Proxy marriages were discussed briefly - again with reference to forced marriages - in March 2015.15 The Department of Justice, in giving evidence, referred to two reports,16 neither of which explicitly mention proxy marriages.

UNICEF Response to the RIAS, May 2015

In May 2014, UNICEF responded to the RIAS.17 That response noted:

While we appreciate that early and forced marriage is a legitimate and serious consideration
and applaud the Government of Canada’s steps to address this violation of children’s rights in the international community, there is no compelling evidence to suggest that the proposed
amendments will decrease the likelihood of early and forced marriage and we are concerned
that the potential for negative impacts on girls and women may be more significant. The
assumption that early and forced marriages take place for immigration purposes has not been
well-researched in the Canadian context. Likewise, there is no cogent evidence to support the
assumption that changing immigration regulations will have a deterrent effect on the occurrence
of early or forced marriage.

UNICEF Response, pp. 1-2.

While the UNICEF Response focused on the increased legal age of marriage for immigration purposes (it was indeed raised to 18,18 which UNICEF correctly noted is 16,19 not 18, in Canada.)

After the Amendment (Post-Hoc "Evidence" and Justifications)

Immigration Department's Operational Bulletin 613, June 2015

In June 2015, CIC (as it then was) published an OB regarding the amendment.20

Interestingly, OB 613 gives the first plausible reason why a proxy marriage might be more facilitative of a forced marriage than an in-person marriage: "The nature of proxy, telephone, fax, Internet and other similar forms of marriage can help to facilitate forced marriages because one or both spouses are not physically present, making it more difficult to determine that they consent to the marriage."

Report of the Standing Committee on Citizenship and Immigration, Family Reunification, March 2017

This Report notes:

In 2015, the Regulations were amended to exclude marriages conducted without the two parties being physically present, as is the case with proxy marriages. The rationale provided by the Department for this change was that the nature of the marriage made it more difficult to determine the validity of the consent of the individual, prompting concerns that this facilitated forced marriages.

House of Commons, Report of the Standing Committee on Citizenship and Immigration, Family Reunification (March 2017) (Chair: Borys Wrzesnewskyj), online: https://www.ourcommons.ca/Content/Committee/421/CIMM/Reports/RP8810563/cimmrp08/cimmrp08-e.pdf, p. 39 [footnote omitted] [Family Reunification].

The Report goes on to note that the CBA argued, in a letter of December 2016, that the exclusion of proxy marriages "speaks to a lack of sensitivity to cultural practices abroad: 'Outside the immigration sphere, these marriages are typically recognized as valid under the laws of the jurisdiction where it took place and under Canadian law.'"21 The CBA argued the provision should be repealed.

Other Evidence?

There does not seem to be evidence - neither that which was put before Parliament nor otherwise - indicating that proxy marriages are more open to abuse or forced marriage.

With certain limits, proxy marriages are considered valid under other countries' immigration rules. For example, in the UK, a proxy marriage may "be accepted as valid in the UK for immigration purposes", so long as it was properly performed under the rules of the jurisdiction where it took place and in which proxy marriages are legal, the parties had capacity, and evidence of the legal validity is presented.22 The Republic of Ireland has taken a similar stance.23

The United States allows immigration based on proxy marriages where they have subsequently been consummated.24 This led to a tragic and bizarre case where a foreign woman was affianced to a US soldier, and upon finding that she was pregnant, a proxy marriage (allowable under certain conditions for members of the military) was conducted. The soldier was killed in action, and the fact that the "consummation" occurred before and not after the proxy marriage meant that she could not immigrate to the United States.25 However, it must also be considered the the US allows temporary status to fiancés.

  1. Regulatory Impact Analysis Statement, Regulations Amending the Immigration and Refugee Protection Regulations (2015) C Gaz I, Vol. 149, No. 14, 4 April 2015, HTML version online: http://www.gazette.gc.ca/rp-pr/p1/2015/2015-04-04/html/reg1-eng.html; PDF version online: http://www.gazette.gc.ca/rp-pr/p1/2015/2015-04-04/pdf/g1-14914.pdf, pp. 735-747 [RIAS]. []
  2. RIASibid., p. 736; Private Member's Motion M-505, 41st Parl., 2nd Sess., 10 December 2014, online at: https://www.ourcommons.ca/members/en/stella-ambler(58833)/motions/6524308. []
  3. Citizenship Immigration Canada, Operation Manual 2, archived online: https://web.archive.org/web/20150217210306if_/http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf [Archived Operation Manual 2].  []
  4. Archived Operation Manual 2ibid. at p. 37. []
  5. Archived Operation Manual 2ibid. at p. 24. []
  6. Archived Operation Manual 2ibid. at p. 37. []
  7. Ambler, Debates, 23 October 2014supra, p. 8747. [] [] []
  8. RIASsupra., p. 737. []
  9. RIAS, p. 740. []
  10. RIAS, p. 742. []
  11. Letter, South Asian Legal Clinic of Ontario et. al, response to M-505, 3 October 2014, online: http://www.salc.on.ca/ResponsetoM-505.pdf [SALCO Response]. []
  12. Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 7 November 1962, 521 UNTS 231 (entered into force 9 December 1964), online: https://www.ohchr.org/EN/ProfessionalInterest/Pages/MinimumAgeForMarriage.aspx [UN Marriage Convention]. []
  13. House of Commons, Report of the Standing Committee on Citizenship and Immigration, Strengthening the Protection of Women in Our Immigration System (February 2015) (Chair: David Tilson), online: https://www.ourcommons.ca/Content/Committee/412/CIMM/Reports/RP6837061/cimmrp04/cimmrp04-e.pdf, p. 5. []
  14. Strengthening the Protection of Women in Our Immigration Systemibid., p. 14. []
  15. House of Commons, Standing Committee on Citizenship and Immigration, Evidence, 41st Parl., 2nd Sess. (31 March 2015), CIMM No. 43, online: https://www.ourcommons.ca/Content/Committee/412/CIMM/Evidence/EV7909556/CIMMEV43-E.PDF, p. 13. []
  16. Department of Justice Canada, Naïma Bendriss, Report on the Practice of Forced Marriage in Canada: Interviews with Frontline Workers: Exploratory Research Conducted in Montreal and Toronto in 2008 (November 2008), online: https://canada.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/fm-mf/fm_eng.pdf; Department of Justice Canada, Zohra Husaini, Ph.D & Jagjeet Bhardwa for Indo-Canadian Women’s Association (31 May 2010), online: https://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/fmwc-mfoc/fmwc-mfoc.pdf. []
  17. UNICEF, "Submission by UNICEF Canada to the Director, Social Immigration Policy and Programs, Citizenship and Immigration Canada", 4 May 2015, online: https://www.unicef.ca/sites/default/files/imce_uploads/unicef_canada_submission_-_proposed_irpa_regs_may_4_2015_final.pdf [UNICEF Response]. []
  18. Immigration and Refugee Protection Regulations, SOR/2002-227, s. 5(a), online: http://canlii.ca/t/54bm8#sec5. []
  19. Civil Marriage Act, SC 2005, c. 33, s 2.2, online: http://canlii.ca/t/52hdt#sec2.2. []
  20. Canada, CIC, "Instructions – Excluded relationship – Proxy, telephone, fax, internet or similar marriage forms where one or both parties not physically present", Operational Bulletin 613, 11 June 2015, online: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/bulletins-2015/613-june-11-2015.html; archived: https://web.archive.org/web/20200517100332/https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/bulletins-2015/613-june-11-2015.html. []
  21. Family Reunificationibid., pp. 39-40. []
  22. CB (Validity of marriage: proxy marriage) Brazil [2008] UKAIT 00080, online: http://www.bailii.org/uk/cases/UKIAT/2008/00080.html; UK Home Office, Family Policy: Partners, divorce and dissolution, v.1, 29 May 2019, online: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/835362/Partner_divorce_and_dissolution_guidance_v.1.0ext.pdf, at pp. 10-11. []
  23. Hamza & anor v Minister for Justice Equality & Law Reform, [2010] IEHC 427, Ireland: High Court, 25 November 2010, online: https://www.refworld.org/cases,IRL_HC,58a6e9155.html; aff'd Hamza & another v Minister for Justice, Equality & Law Reform, [2013] IESC 9, Ireland: Supreme Court, 27 February 2013, online: https://www.refworld.org/cases,IRL_SC,512e0a242.html []
  24. Immigration and Nationality Act of 1952, 8 U.S.C. §1101(a)(35). []
  25. For a legal analysis of this absurdity, see Lucas I. Quass, "Proxy Marriages and the Military Widow Penalty: Excluding Alien-Widows of Fallen Soldiers" (2011) 20:3 Review of Law and Social Justice 501, online: https://gould.usc.edu/students/journals/rlsj/issues/assets/docs/volume20/summer2011/3.Quass.pdf. By the time a special bill was passed allowing for the widow and child to immigrate, it had seized to be practical: Matt Lakin, "Legal barriers gone, but miles still separate fallen Marine's family", Knoxville News Sentinel (online), 19 March 2013, online: http://archive.knoxnews.com/news/local/legal-barriers-gone-but-miles-still-separate-fallen-marines-family-ep-358585291-356036411.html. []

General Information on Afghan Refugee Situation

This is very general information, to give you guidance on what questions to ask when you are able to speak to legal counsel. It will be updated, but is presently current to August 19, 2021.

In this information, “you” is the person who wants to come to Canada.

If you are an Afghan citizen in Canada

  • If you are here as a visitor or have not already done so in the past, you may wish to consider making a refugee claim in Canada
  • If you have already made a refugee claim and been refused, your situation may be reconsidered in a humanitarian and compassionate application or pre-removal risk assessment, depending on the timing and your personal circumstances
  • However, if you are here on a study permit or work permit, you may be eligible to apply under one of the economic categories, and should speak to counsel about this

If you are an Afghan citizen in a third country

  • You may be eligible to be resettled in Canada as a refugee or a member of the country of asylum class
  • At this time, the only special program is for Afghan citizens or their family members whose past “employment involved a significant and/or enduring relationship with the Government of Canada”

If you are an Afghan citizen in Afghanistan

  • At this time, the only special program is for Afghan citizens or their family members whose past “employment involved a significant and/or enduring relationship with the Government of Canada”
  • Family sponsorships, applications for temporary resident permits, and applications for temporary residence on humanitarian and compassionate grounds are also possibilities, but this depends on the specific situation

Who Needs a Study Permit?

Disclaimer

Study Permits are governed by the Immigration and Refugee Protection Act, SC 2001, c. 27 and the Immigration and Refugee Protection Regulations, SOR/2002-227.

Foreign Nationals Except Some Minor Children

IRPA s. 30(1) states that a foreign national - that is to say, any person who is not a Canadian citizen or a permanent resident (but may have some other status such as a temporary resident, a protected person, or a person registered under the Indian Act) requires authorization to work or study in Canada (repeated in IRPR s. 212). IRPA s. 30(1.1) states that the requirements for authorization will be set out in the Regulations, and they are largely set out at IRPR ss. 213-222.

However, IRPA s. 30(2) states unequivocally:

Every minor child in Canada, other than a child of a temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level.

Children without any status, children of refugee claimants, children who are refugee claimants, and the children holding many other forms of status do not need a study permit to study in Canada.

The Regulations add some common-sense clarifications, including that if you are coming to Canada in order to study, you generally need a study permit (IRPR s. 9). Persons on study permits benefit from "implied status", meaning that if they apply to renew/extend their study permit before it expires, they can continue studying until they get a decision (IRPR s. 189).

Other Exemptions

Under IRPR s. 188, you don't need a study permit if:

  • You're a diplomat or the family member (e.g. spouse or dependent child) of a diplomat (IRPR s. 188(1)(a));
  • You're a member of the armed forces of a country designated under the Visiting Forces Act (IRPR s. 188(1)(b));
  • You are "an Indian" (IRPR s. 188(1)(d)); or
  • "[I]f the duration of their course or program of studies is six months or less and will be completed within the period for their stay authorized upon entry into Canada" (IRPR s. 188(1)(c))

Benefits of a Study Permit

There are a handful of benefits to holding a study permit that might make it worthwhile to apply even if it is not necessary. There is an effectively meaningless waiver of the requirement to obtain a visa to re-enter Canada after a visit to the US or St. Pierre and Miquelon (IRPR s. 190(3)(f)). More helpful is the several ways holding a study permit can facilitate working in Canada, for example:

  • If you have a study permit, you can apply for a work permit from within Canada (IRPR s. 199(c)).
  • Although the ability to support oneself without working is generally a prerequisite for granting a study permit (IRPR s. 220), having suddenly run out of or been cut off from funding is grounds for a work permit to be issued (IRPR s. 208(a)).
  • Having a history authorized study in Canada - meaning with a study permit or while exempt under IRPR s. 188 - can garner additional points when applying for some immigration programs (IRPR s. 83(1)(b) and (b.1) with (2)); IRPR s. 105(1)(b) with (3)).
  • If you have a study permit and you are studying full-time at a university or college, you can work on campus without needing a work permit at all (IRPR s. 186(f))

Having recently engaged in unauthorized study in Canada is a reason to refuse an otherwise acceptable work permit application (IRPR s. 200(3)(e)). The work permit cannot be issued if the unauthorized study was within six month (and, in practice, even older unauthorized study may cause an officer to find that you will not respect other conditions and therefore to refuse the application). Therefore if there is any doubt about whether you require a study permit, and you hope to transition to work in Canada, it is far safer to obtain the study permit first.

So if I don't need a study permit, I can study?

Unfortunately, that's more complicated, because immigration is run by the Federal Government, and education is run by the provinces/territories. Moreover, there is a difference between being able to study, and being able to study for free, even at a publicly-funded school.

First, you have to consider whether you are a minor under provincial law.

Province/TerritoryAgeSource
British Columbia19Age of Majority Act, RSBC 1996, c. 7, s. 1, https://canlii.ca/t/84gw#sec1
Alberta18Age of Majority Act, RSA 2000, c A-6, s. 1, https://canlii.ca/t/8218#sec1
Saskatchewan18The Age of Majority Act, RSS 1978, c. A-6, s. 2, https://canlii.ca/t/h71m
Manitoba18The Age of Majority Act, CCSM c. A7, s 1, https://canlii.ca/t/8ggl#sec1
Ontario18Age of Majority and Accountability Act, RSO 1990, c. A.7, s. 1, https://canlii.ca/t/7r#sec1
Quebec* 18Youth Protection Act, CQLR c P-34.1, s. 1, https://canlii.ca/t/xj3#sec1
New Brunswick19Age of Majority Act, RSNB 2011, c 103, s. 1, https://canlii.ca/t/8psd#sec1
Nova Scotia19Age of Majority Act, RSNS 1989, c 4, s. 2, https://canlii.ca/t/87mj#sec2
Prince Edward Island18Age of Majority Act, RSPEI 1988, c A-8, s. 1, https://canlii.ca/t/k3tn
Newfoundland & Labrador19Age of Majority Act, SNL 1995, c A-4.2, s. 2, https://canlii.ca/t/jz80
Yukon19Age of Majority Act, RSY 2002, c. 2, s. 1, https://canlii.ca/t/kfw4
Northwest Territories19Age of Majority Act, RSNWT 1988, c. A-2, s. 2, https://canlii.ca/t/51xgs
Nunavut19Child and Family Services Act, SNWT (Nu) 1997, c. 13, https://canlii.ca/t/548ms and Age of Majority Act, RSNWT 1988, c. A-2, s. 2, https://canlii.ca/t/51xgs

Second, you have to consider the requirements for enrolment and for fee exemptions in each province.

In Ontario, the Education Act, RSO 1990, c. E.2 determines who can attend school. It is mandatory for children between the ages of six and eighteen to attend some sort of approved education (s. 21(1)). Exceptions are made for homeschooling, children living in extremely remote locations, children who cannot attend school due to illness "or other unavoidable cause" (s. 21(1)(a)-(c)). Exceptions are also made for those who graduated early, absent temporarily for religious reasons or specialist instruction, or if otherwise provided for under the Education Act (s. 21(1)(d)-(h)). Payment from the province for students attending school is based on school boards and taxation. The Education Act requires schools to charge fees to temporary residents and study permit holders (s. 49(6)). However, a school board is prohibited from charging fees to various categories of children or dependents, including refugee claimants, people who have submitted applications for permanent residence in Canada, and the dependents of work permit holders (s. 49(7)). Furthermore, a school or school board is prohibited from refusing to enroll a child because of their lack of status or their parents' lack of status (s. 49.1). This is also set out in Policy/Program Memorandum No. 136 from the Ontario Ministry of Education. Potential students who are not exempt from fees can pay very high tuition; for example, the Toronto District School Board charges $16,000 per year. Families facing difficulty enrolling their children in school in Ontario should contact Justice for Children and Youth.

Recent amendments to the Quebec Education Act, CQLR c. I-13.3 also entitle many children without status to free education. Those who do not qualify must pay fees similar to those in Toronto, at least in Montreal where they are about $13,000. The organization Education Across Boarders Collective/Collectif éducation sans frontières works in this area in Quebec.

In Alberta, the Education Act, SA 2012, c. E-0.3 appears to exclude persons without status from guaranteed education. Section 3(1) entitles to education anyone who is between 6 and 19 years old, "a resident of Alberta", and "who has a parent who is a resident of Canada". Such attendance is compulsory under s. 7, with some exceptions. Under s. 1(4)(a) and (b), both require that the person be "lawfully entitled to be or to remain in Canada", and excludes tourists and visitors. Once those who must be enrolled under s. 3 are enrolled (or in other words, if there is room once all legal residents are enrolled), boards may enroll non-residents and may charge them fees (ss. 12 and 13).

Disclaimer

Immigration and refugee law are complex and constantly changing. The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting Sarah L. Boyd (or their own legal counsel) regarding any specific legal issues. Sarah L. Boyd does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

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Removal During Federal Court Process (After RAD): A General Summary

If you make a refugee claim, a removal order is made against you which becomes a deportation order if your case ends unsuccessfully and you do not leave within a specified period of time.

If you lost your refugee claim at the Refugee Protection Division (RPD), and appealed to the Refugee Appeal Division (RAD), then the removal order will come into force, but be “stayed” (put on hold) while you are applying to the Federal Court. This stay of removal is automatic (as long as you apply to the Federal Court on time, and don’t fall under a handful of exceptions) under s. 231 of the Immigration Regulations. You will continue to benefit from most of the conditions from which you benefited when your case was before the RPD and RAD (health care, access to a work permit, ability for children to attend school), although the processes for applying may be different, you may need to pay processing fees, and you may be granted shorter permits.

If the automatic stay does not apply to you, you can ask the Court to stay (put on hold) your removal while your case is ongoing.

Redetermination: A General Summary

In most cases, following a successful judicial review, your case is sent back to be re-determined “de novo” (meaning “as if it were new”) by the decision-making body (but usually a different specific decision-maker). The record from your previous case will still be in front of the new decision-maker, unless there is a specific reason for it to be excluded. However, you will also have an opportunity to present new arguments and evidence.

Sometimes the law will be fixed at the point at which your case was originally filed or decided. For example, if you were eligible for a program when you were refused, but are no longer eligible, the case may be redetermined as if your eligibility was “frozen” during the previous application (this is often the case, for example, when dealing with dependent children who were young enough to be sponsored when a case was originally refused, but passed the age limit during the Federal Court case). However, not everything is fixed. For example, if during the Federal Court case you have obtained a criminal conviction which renders you ineligible to come to Canada, the decision-maker won’t overlook that.

Having your case redetermined after succeeding at Federal Court can, unfortunately, take almost as long as the original case took to decide; this depends very much on the kind of decision being redetermined.

Applications for Leave and Judicial Review: A General Summary

At Federal Court, you do not file an “appeal”, but rather an “application for leave” for “judicial review”. The application is for “leave” in the sense of “permission”, so you are applying for “permission” to proceed to the second stage, “judicial review”. The first stage (“application for leave”) is as follows:

  • Within 15 days of receiving the decision, you file a notice with the Court and the government, which tells them you are challenging the decision (and what decision, and when you received it, and very generally why you are challenging it)
  • After filing the notice, you have 30 days to file your Application Record, which contains a copy of the notice, the decision, all of the evidence that the decision-maker had or ought to have had that you are relying on, and your arguments for why the decision should be overturned
  • After you file the Application Record, the government has 30 days to file their arguments; they may also file evidence which was or ought to have been before the decision-maker, but it is not common
  • After the government’s written arguments, you have 10 days to submit written reply arguments
  • When all of these stages have been completed, your application for leave is said to have been “perfected”, meaning all of the standard paperwork has been filed

There are some events which can change this timeline. For example, if necessary you or the government may need to request extra time from the Court, and as long as there is some merit to your case and you have a reasonable explanation for the delay, and the other side doesn’t suffer for it, the Court will usually grant the request. From December 21 to January 7 the Court is in recess and time is not usually counted (but sometimes is). Your “perfected” application goes to a judge of the Federal Court (there is no way of knowing which one), and the judge can make one of two decisions:

  • Dismiss the application, in which case there are no reasons given and no way to appeal; or
  • Allow the application, in which case the judge will also set a hearing date 90 days in the future, with some due dates in between to file additional arguments and evidence

Occasionally a judge will order the decision-making body to produce the complete certified tribunal record before making a final decision on the application for leave, and ask if the parties are willing to settle. This usually suggests that they are likely to grant/allow the application for leave, and there is almost never a settlement (because there is rarely any position in between what the applicant is asking for and nothing).

If the application for leave is allowed, then the next major step is the judicial review hearing. While you do not need to attend your hearing (your counsel and the government’s counsel will be presenting arguments to the judge), it is a good idea to do so, as it is the only chance the judge will have to see that you are a real person and to see your face. You will not need to testify, but will sit in the audience. Federal Court hearings are open to the public, but are rarely attended by anyone not involved in the case.

There are generally two ways that a judge can decide a judicial review:

  • Grant or allow the application for judicial review, in which case they will give reasons; or
  • Dismiss the application for judicial review, in which case they will issue reasons, but there can only be an appeal if the judge themselves agrees that there is an important question of law to be determined on the case

The reasons why this is a “judicial review” and not an “appeal” are that no new evidence is allowed (no matter how much it might change the situation), and that the judge cannot decide based on whether or not they agree with the challenged decision, but rather on whether it was made fairly and reasonably. This means that a judge might completely disagree with a decision, but still refuse the judicial review application because the decision was “reasonable”.

In the Canadian system, a judge cannot order that you should be found a refugee. All that a judge can do is grant the judicial review application, and order that the case be re-determined, usually by a different decision-maker. Sometimes a judge will give more specific directions about the treatment of evidence or how the case should proceed, but usually not.

The entire process takes, very approximately, one year.

2020 and 2021 Parents and Grandparents Program

IRCC has just issued a release: "Government of Canada announces details for opening of 2020 Parents and Grandparents Program", today, October 5, 2020. The content is below:

The Honourable Marco E. L. Mendicino, Minister of Immigration, Refugees and Citizenship, today announced details for the opening of the 2020 Parents and Grandparents (PGP) Program, building further on the government’s commitment to reuniting families.

Over a 3-week period, from 12 p.m. EDT on October 13, 2020, to 12 p.m. EST on November 3, 2020, Canadians and permanent residents who wish to sponsor their parents and grandparents to come to Canada will have an opportunity to submit an interest to sponsor form online.

In order to ensure a fair, transparent and equal opportunity for applicants, Immigration, Refugees and Citizenship Canada (IRCC) will randomly select potential sponsors and send them an invitation to submit an application. Selected applicants will have 60 days to submit their application.

Accommodation is available to persons with disabilities who are unable to use the online form. They can request the interest to sponsor form in an alternative format (paper copy, Braille or large print) by contacting the IRCC Client Support Centre at 1-888-242-2100 or by email until November 3, 2020.

Given that many sponsors may have been financially impacted by the exceptional circumstances of the COVID-19 pandemic, IRCC is introducing a temporary public policy that will reduce the income requirement for the 2020 tax year to the minimum necessary income, instead of the minimum necessary income plus 30%.

The government knows how important it is for families to be together, particularly during difficult times. The launch of the 2020 Parents and Grandparents Program builds on the government’s initiatives to prioritize the approval of 49,000 family sponsorship applications by December 31, 2020, as well as last week’s announcement of a process to reunite more families and approve compassionate cases within the current border restrictions.

A maximum of 10,000 applications will be accepted for processing as part of the 2020 PGP intake. In 2021, IRCC will open a new intake of interest to sponsor forms to accept a total of 30,000 new applications.

[...]

Quick facts

- The Government of Canada is committed to ensuring that the PGP Program is accessible and fair for all Canadians and permanent residents. IRCC worked with stakeholders on ways to better accommodate persons with disabilities in developing the 2020 program design.

- Due to COVID-19, the launch of the 2020 PGP Program was delayed to allow the Government of Canada to prioritize its efforts to contribute to the whole-of-government response to the global pandemic.

Associated links

Backgrounder: How will the 2020 Parents and Grandparents Program intake process work?

Ministerial Instructions

Temporary public policy for family class

Submit the interest to sponsor form

Check if you’re eligible

Help Centre: Frequently asked questions about sponsorship of parents and grandparents