Family Law Issues for Immigrant, Refugee and Non-Status Women

When couples have problems in their relationship, it can be very stressful.  If you or your partner came to Canada from another country and you want to end your relationship you may have family law and immigration law problems.  For example, you will likely have to decide about financial support for you and your children, make arrangements, about your children and divide your family property. If you are not a Canadian citizen, your immigration status may be connected to your partner or other family member. You may worry about:

• whether you can stay in Canada;
• whether you will be separated from your children;
• how to support yourself if you were sponsored by your partner and you leave the relationship.

Rights in Family Court

Immigrant, refugee and non-status women have the same rights and responsibilities as Canadian-born women under family law. When you separate from your partner, you can go to Court to apply for decision-making responsibility for your children (this used to be called custody) parenting time for your children, (this used to be called access), child support, spousal support, and you can ask the Court to give you a share in your family property. You can go to Family Court no matter what your immigration status is.

It is important to know that if you have to go to Court for any reason you will have to identify yourself. Although you have the same family law rights as any other woman, if you do not have legal status in Canada, immigration officials may find out about you, and you could get deported. Your right to stay in Canada depends on your immigration status.  To protect yourself and your children, you need to know your rights and what you can do.

Relationship breakdown and immigration concerns

After your relationship has ended, your right to stay in Canada depends on your immigration status. Immigration 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 what you can do.

Permanent Residents

If your partner (including a same sex partner) sponsored you to become a permanent resident and your relationship ends before your permanent residence is granted, your immigration status could be at risk and you could be removed 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 partner sponsored you to become a permanent resident and your relationship with your sponsor ends, your sponsor is still financially responsible for you for 3 years after you are granted permanent residence. If your sponsor cannot or will not continue to support you during the 3-year sponsorship period, you can apply for social assistance to support yourself.

If you sponsored your partner and your relationship ends, it is important that you understand that you are the one who is financially responsible for your partner until the 3-year sponsorship period ends. If your partner goes on social assistance during the sponsorship period, even if you are no longer together, you will likely have to repay the government for this money.

Refugees and persons needing protection

If you are in Canada and you have been found to be a Convention Refugee or a person in need of protection, you cannot be removed from Canada just because your relationship has ended. If you made your refugee claim together with your partner and you want to end the relationship, you may be able to separate your claim from your partner’s claim before the refugee hearing. To do this you should get your own lawyer. You should tell your lawyer if you were abused by your partner, if you were forced to sign any documents, or if you are afraid of your partner or family members in your home country.

If your refugee claim fails, you may be able to appeal the decision to the Refugee Appeal Division (RAD).  You only have a short time to file an appeal and submit all of your documents. Not all refugee claimants have access to the RAD. For example, you cannot appeal to the RAD if you are from a designated (Safe) Country of Origin (DCO).

The government developed a list of countries that they consider to be “safe” called Designated (Safe) Countries of Origin (DCO). It is important to find out if you come from a DCO because the timelines for refugee claims from a DCO are very short and your options are limited if your claim fails. You should talk to an immigration lawyer about this as quickly as possible.

No legal status 

You may be in Canada without legal status. This can happen if your Visa as a visitor or student has expired, if your refugee claim was denied, or because you entered the country illegally. Although you have the same family law rights as any other woman, you could be deported if you come to the attention of immigration officials. You may be able to get help from local women’s organizations or women’s shelters.

If you fear harm from your partner or family members in your home country, you should talk to a lawyer about the possibility of making a refugee claim.

Humanitarian and Compassionate (H and C) application 

If you do not have legal status or your immigration status is at risk, one option to consider is making a Humanitarian and Compassionate (H and C) application. An H and C application is used in special situations to ask the government for permission to stay in Canada. Making an H and C application does not protect you from being deported. You should get legal advice as soon as possible. There may be other immigration claims available to you, depending on your situation. If you are experiencing abuse, you may be able to apply for a Temporary Resident Permit.  Read the information below on Domestic violence, Family violence and abuse to find out more about the permit.

If there was abuse in your relationship, you should tell what happened to you in your application. 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?

Immigration officials must also consider all children affected by the H and C application, whether or not they were born in Canada.

You cannot make an H and C application if you are waiting for a
decision about your refugee claim. If your refugee claim failed, you cannot make an H and C application for 12 months from the date of the decision that denied your claim, unless you can show that your life would be at risk because:

• your home country cannot give you adequate health or medical care; or
• your removal from Canada would have a negative effect on a child. This does not have to be your child – it can be a child you have a relationship with and who would be directly affected by your removal.

A lawyer can help you decide what the best option is for your situation.

Safety from violence and abuse

Relationships end for many reasons. One of these reasons may be violence or abuse by your partner. If you tell immigration officials that you have experienced abuse by your partner or family member, they should make note of this when they process your immigration application to stay in Canada.

Family violence

The law says that family violence happens when a spouse, parent, or member of a household does anything that is violent or threatening or that shows a pattern of coercive and controlling behaviour towards another spouse, parent or member of a household or that makes the other person fear for their own safety or for that of another person.

Family violence are actions like:

1. Physical abuse or forced confinement (but not in the case of protecting yourself);
2. Sexual abuse;
3. Threats to kill or cause physical harm;
4. Harassment, including stalking;
5. Failure to provide necessaries of life;
6. Psychological abuse;
7. Financial abuse;
8. Threats to kill or harm an animal or damage property; and
9. The killing or harming of an animal or the damaging of property.

Family violence does not have to be a criminal offence to be seen as family violence.

Family violence also happens if a child sees or hears violent acts or if for example, they see that a parent is afraid or injured.

You must tell your family law lawyer if you or your children have experienced family violence.

Temporary Residents Permits for victims of abuse

If you are experiencing abuse, you may be able to apply for a Temporary Resident Permit for you and your dependent children who live with you in Canada, which will allow you to live in Canada for at least 6 months.  You do not have to pay a fee for the permit.

If you receive a Temporary Resident Permit for 6 months or more, you can also be covered by Ontario health insurance (OHIP) and if you need a work permit or study permit you will be able to apply for those.

There are rules about who can apply for a Temporary Resident Permit.  You should speak with an immigration lawyer who can help you with your application.  For more information if your partner is violent or abusive, call the Assaulted Women’s Helpline at:

416-863-0511 (Toronto)
1-866-863-0511 (toll free)
1-866-863-7868 (TTY)

If you are in immediate danger, you should call the police (dial 911).

Involving the police

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.

Assault is when one person purposely applies force to another person, or attempts or threatens to apply force to another person, without permission. Assault is a crime, even if you are not physically hurt.

Assault can include:

• slapping
• shoving
• kicking
• punching
• stabbing
• throwing an object that could hurt or scare you.

Even if you are not charged, the police, the 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 detained and deported.

If you are convicted of a criminal offence, this can affect your immigration status and you may be deported, 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 they were in 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, it is very important that you get legal advice from both a criminal lawyer and an immigration lawyer right away.

Other family law issues for immigrant women

If you and your partner came to Canada from another country, family law issues can be more difficult when you separate, if either you or your partner decides to leave Canada.

You may face issues like:

• moving with children
• travelling with children
• child abduction
• collecting financial support from someone living outside of Ontario

For more information about moving with children, travelling with children, or child abduction see our booklet on “Children: Decision-Making Responsibility and Parenting Time”.

For more information about collecting financial support, see our booklets on “Child Support” and “Spousal Support”.