Key Legal terms: Family Law Issues for Immigrant, Refugee and Non Status Women

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1 Key Legal terms: Family Law Issues for Immigrant, Refugee and Non Status Women Permanent Resident A permanent resident is an immigrant or refugee who has been given the right to live in Canada permanently. A permanent resident is not a Canadian citizen, but can live, work and study anywhere in Canada. To keep permanent resident status, a person must live in Canada for 2 years out of every 5 years. Spousal or Partner Sponsorship Spousal or partner sponsorship is when a Canadian citizen or permanent resident applies to the federal government to sponsor their spouse or partner to become a permanent resident in Canada. The sponsor promises to financially support the spouse or partner for three years, and to provide all of her or his basic needs. 1

2 Conditional Permanent Resident Some permanent residents have conditions placed on their right to permanently live in Canada. Conditional permanent residence only applies to a person who was sponsored to come to Canada by their spouse or partner. The conditions last for two years after permanent residence is approved and require the partners to live together in a genuine, marriage-like relationship for the two-year period. If the relationship breaks down during the two-year period, the sponsored partner could lose permanent residence status. Conditional permanent residence only applies to partners if: their sponsorship application was submitted on or after October 25, 2012; and their relationship was 2 years or less when they applied; and they did not have any children together when they applied. Having a child after the application is submitted will not change the condition. The condition applies whether the application for permanent residence was made inside or outside of Canada. During the two-year conditional period, if immigration officials believe the spouses or partners are not living together in a 2

3 genuine relationship, they may request proof that you are following the rules. The government can also do random checks to make sure that the sponsored person is still living in a genuine relationship with her or his sponsor. Exceptions to Conditional Permanent Residence The conditions to permanent residence can be removed, if the conditional permanent resident can prove: the sponsor has died; or the relationship broke down because the sponsor abused or neglected the sponsored conditional permanent resident, their children, or a relative living in the home with them; or the sponsor failed to protect the sponsored conditional permanent resident, their children, or a relative living with them from abuse or neglect by another person related to the sponsor. Abuse may be physical, sexual, financial and/or psychological attacks or hardship. Neglect is the failure to provide the necessities of life, such as food, clothing, medical care, shelter, or failing to give anything that results in a risk of serious harm. 3

4 If a Conditional Permanent Resident is abused or neglected, it is very important to get legal advice from an immigration lawyer right away, as well as safety assistance from a women s organization or women s shelter. To get more information or to apply for the exceptions to conditional permanent residence, contact the federal government office of Citizenship and Immigration Canada (CIC) at Convention Refugee A person who cannot or does not want to go back to her or his home country because of a well-founded fear of persecution because of: Race Religion Nationality Political opinion Membership in a particular social group (this can be a group that a person chooses to join, such as a labour union, or that a person belongs to because of certain characteristics, such as gender, sexual orientation or disability) 4

5 To be a convention refugee, it is also necessary that the government in the home country cannot or will not protect that person. Canada will only give refugee protection If the person can also show that there is no safe place in the home country that is reasonable to get to and live in. Well-founded Fear of Persecution This means that a person has to prove that she or he has a reasonable fear of serious and undeserved harm or mistreatment in the home country because of one or more of the reasons of race, religion, nationality, political opinion, or membership in a social group. Refugee Claim To get refugee protection in Canada, a person must make a refugee claim which is a statement about what happened in her or his home country, with any documents that will show the claim is true. Some documents that may help are police reports, medical records, human rights reports, and news stories about the situation in the home country. A person can make a refugee claim at the time of arriving at a Canadian border or airport, or as soon as possible after arriving in Canada. 5

6 Refugee Hearing After a refugee claim is made, a government decision-maker, who is like a judge, holds a hearing at the Immigration and Refugee Board (IRB) to decide whether or not the person meets the definition of a refugee. Refugee Status If the Immigration and Refugee Board accept the refugee claim is true, the person is granted refugee status in Canada, and can apply to become a permanent resident. Designated (Safe) Countries of Origin (DCO) The federal government has developed a list of countries that it considers to be safe because they do not normally produce refugees. These safe countries are called Designated Countries of Origin. The time to be able to make a refugee claim if a person comes from a Designated Country of Origin are very short and if the claim fails, further legal options are very limited. No Legal Status If a person does not have permission to live in Canada permanently or temporarily, she or he is in Canada with no legal status. This can happen when a person s Visa as a visitor or 6

7 student has expired, a refugee claim was denied, or because the person entered the country illegally. Deportation Deportation or when a person is deported happens when a person does not have legal status to be in Canada, and government officials find that person, and order her or him to leave the country. Humanitarian and Compassionate (H and C) Application A Humanitarian and Compassionate application is used in special circumstances to ask the government for permission to stay in Canada. It does not prevent a person from being deported. Some questions that are considered in an H and C application are: Do you have a strong connection to Canada? Are you able to financially support yourself? Would you face significant hardship if you returned to your home country? Are any children, whether or not they were born in Canada, affected by the request to stay in Canada, and how are they affected? 7

8 Immigration Status and Relationship Breakdown When your relationship ends, your right to stay in Canada depends on your immigration status. This area of law has become very complicated. If you think your immigration status may be at risk, it is very important to talk to an immigration lawyer right away to find out your legal options. Permanent Residents If your partner sponsored you to become a permanent resident and your relationship ends before your permanent residence is approved, your immigration status could be at risk and you could be deported from Canada. If you are already a permanent resident, you cannot lose this status or be removed from Canada just because you separate from your partner. This is true even if your partner sponsored you to come to Canada. If your relationship with your sponsor ends during the threeyear sponsorship period, your sponsor is still financially responsible for you for the full three years of sponsorship. If your sponsor cannot or will not continue to support you during the sponsorship period, you can apply for social assistance to support yourself. 8

9 Conditional Permanent Residents If you are a conditional permanent resident and your relationship breaks down during the two-year conditional sponsorship period, you could lose your permanent residence status unless one of the exceptions to the conditional requirement applies. If the two-year conditional period is over, you are a permanent resident with no more special conditions and you cannot lose your permanent resident status or be removed from Canada just because you separate from your partner. If the three-year sponsorship period has not ended, your sponsor is still financially responsible for you for the full threeyear sponsorship period. If your partner cannot or will not continue to support you, you can apply for social assistance to support yourself. Refugee Claimants and Refugees If your refugee claim is in progress and your relationship breaks down, your immigration status may be at risk if you made your refugee claim with your partner. If your refugee claims are connected and you want to end the relationship, you may be able to separate your claim from your partner before the refugee hearing. To do this you should get your own lawyer. You should 9

10 tell your lawyer if you were abused by your partner, if you were forced to sign any documents, or if you fear your partner or family members in your home country. If you are in Canada and you have been found to be a Convention Refugee, you cannot be deported from Canada just because your relationship has ended. Involving the Police (Domestic Abuse or Sexual Assault) Woman abuse is against the law in Canada. If the police believe that your partner has assaulted you, they will lay a criminal charge against him or her. They will lay the charge even if you do not want them to. If the police believe that you assaulted your partner, you may also be charged. Even if you are not charged, the police, Crown Counsel (lawyer for the government) or another Court official could find out that you do not have legal status in Canada and tell immigration officials. If this happens, you could be deported. A criminal conviction can affect a person s immigration status and may lead to deportation, even if you are a permanent resident. Permanent residents can be deported if they are convicted of certain crimes. If your partner is deported and he or she was in 10

11 the process of sponsoring you, your immigration status could also be at risk. If you are not a Canadian citizen, and you are involved with a criminal charge, you should get legal advice from both a criminal lawyer and an immigration lawyer right away. Going to Family Court Immigrant, refugee and non-status women have the same rights and responsibilities as Canadian-born women under family law. You can go to Family Court no matter what your immigration status is. When you separate from your partner, you can go to Court to apply for child custody or access, child support, spousal support, and you can ask the Court to award you a share of your family property. You will have to identify yourself if you go to Court. Although you have the same family law rights as any other woman, if you do not have legal status in Canada, you may come to the attention of immigration officials, and you could get deported. 11

12 The views expressed in these materials are the views of FLEW and do not necessarily reflect those of the Province. While financially supported by the Law Foundation of Ontario, the content of this publication does not necessarily reflect the views of the Foundation. There is a greater risk of violence when an intimate relationship is ending. If you are in immediate danger, call 911. If you or someone you know is at risk, visit the FLEW website for information on getting support. If you are a francophone woman living in Ontario, you have the right to access French language services in family law court proceedings. For more information regarding your rights, contact a lawyer, a community legal clinic, or the support line Femaide at , TTY

13 You can find more information on how to access services in French on our website at or 13

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