Parenting when a Parent is subject to Deportation Order

Where one parent is subject to a deportation order, parents are faced with the difficult decision of how to parent their child/children from different jurisdictions in the event that deportation is successful. The Response for parents found in this situation if they are unable to resolve the issues between themselves is to commence court proceedings for custody, access and non-removal orders or a motion to change if orders for custody, access or non-removal were previously made.

In these type of cases, The Minister of Public Safety and Emergency Preparedness (“The Minister”) usually is granted the opportunity to participate in family law proceedings asking the court not to make any order that could potentially interfere with the deportation process – in particular not to make a specified access or non-removal from Canada order.

The Honourable Mr. Justice Sherr, in paragraphs 122-123 of Ffrench v.. Williams,2011 ONCJ 406 (CanLII), reviewed the legal considerations in parenting cases when a parent is subject to a deportation order as follows:

(a)     There must be a genuine lis for the court to exercise its jurisdiction to make a custody or access order.

(b)     There must be a genuine lis for the court to exercise its jurisdiction to make a non-removal order.

(c)     The family law process should not be used for the sole purpose of frustrating the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation.

(d)     Non-removal orders are not to be made lightly.

(e)     Each case must be carefully examined on its facts

In Canabate v. Ayala2010 ONCJ 54 (CanLII), 193 A.C.W.S. (3d) 515, [2010] O.J. No. 4156, 2010 CarswellOnt 7374 (Ont. C.J.), The Honourable Mr. Justice Sherr also made the following statements in paragraphs [58]-[60] that apply equally to these type of cases:

[58] The Court of Appeal decision in J.H. v. F.A.2009 ONCA 17 (CanLII), [2009] O.J. No. 88, supra, makes it clear that it is not this court’s function to deal with the applicant’s immigration issues. This court’s sole focus is on Joshua’s best interests. The issues raised by the Minister are factors to be considered by immigration officials and, if necessary, the Federal Court of Canada.

[59] The orders that will follow are not made with the intent of frustrating the deportation process, but rather to comply with this court’s mandate under the Children’s Law Reform Act to determine what orders are in Joshua’s best interests in the context of a legitimately contested custody and access dispute. It would be an abrogation of this court’s responsibility to do otherwise.

[60] Whether or not the applicant will be deported will be determined according to immigration legislation. The appropriate decision makers will have the benefit of this decision, which reflects findings regarding Joshua’s best interests in the family law context after a contested hearing, in which the Minister fully participated. The Minister may decide to defer the removal of the applicant pending the determination of her humanitarian and compassionate application. It may or may not be determined that a family court decision, where there is a genuine lis with respect to issues of access and non-removal of a child, will invoke the operation of paragraph 50(a) of the Immigration and Refugee Protection Act. The deportation may still proceed. These issues are for others to decide. This court is not interfering with this process.

In apply the above law, The Honourable Mr. Justice Sherr found in Ffrench that there was a genuine lis with respect to the issues of custody, access and non-removal and made an order for joint custody of the child if the mother remained in Canada and sole custody of the child to the father if the mother was deported to Jamaica. A specified access order was made. He also made an order prohibiting the mother from removing the child from Canada.

In M.A.W. v. J.A.W., 2013 ONCJ 34 (CanLII), The Honourable Mr. Justice Sherr found that there was a genuine lis with respect to the issue of custody, but no genuine lis with respect to the issues of access and the non-removal of the child from Canada. He granted custody of the child to the mother and she was permitted to take the child with her to Jamaica once she was deported. He found that the parties cooperated very well with respect to access and declined to make a specified access order – instead granting the father reasonable and generous access.

In Patterson v. Osazuma, 2015 ONCJ 454 (CanLII), the parties brought motions to change the final order of Justice Carole Curtis, dated June 12, 2013 that provides with respect to matters of custody, access and non removal that: the parties have joint custody of their seven-year-old daughter; a specified access schedule for the father; that the child not be removed from Canada without the consent of the other party or prior court order

In applying the Ffrench analysis on the Patterson case, The Honourable Mr. Justice Sherr found that there is a genuine lis as to who should have custody of the child if the mother is deported, however, he found that there is no genuine lis with respect to the access issue while the parties remain in Canada, however the parties had not followed the court order since it was made and frequently change it. The court went on to make a finding that there was a genuine lis with respect to the access issue if the mother is deported. The parties have some residual distrust from their relationship as to whether the other would facilitate a long-distance relationship between the child and the other party. It is in the child’s best interests that a specified access order be made if the mother is deported. With respect to non-removal order, the court found that there was no genuine lis with respect to the non-removal issue. No evidence was led that either party has any intention of voluntarily removing the child from the jurisdiction, save and except through the operation of the deportation order itself.

The Honourable Mr. Justice Sherr ordered as follows with respect to custody and access:

  • The parties shall have joint custody of the child while the mother remains in Canada.
  • The parties shall equally share parenting time with the child while the mother remains in Canada, on a schedule agreed to by the parties.
  • If the mother is deported, clauses (b) and (c) above shall terminate and be replaced by the following order:
  1.    The father shall have sole custody of the child.
  1.    The father shall keep the mother informed and consult with her regarding all major issues concerning the child.
  1.    The father shall execute directions to permit the mother to communicate directly with any service provider for the child. This includes doctors, dentists, schools and child-care providers. The father shall also promptly send copies of any of the child’s report cards or progress reports to the mother.
  1.    The mother shall have access to the child as follows:
  1.    Two months each summer in St. Vincent.
  1.    Starting in 2016, and in alternate years, the child shall spend the Canadian two-week winter school holiday with the mother in St. Vincent.

iii.      The father shall pay for the child’s travel costs to and from St. Vincent during the summer access.

  1.    The mother shall pay for the child’s travel costs to and from St. Vincent during the winter break access.
  1.         Telephone access, a minimum of once per week.
  1.    Skype or Facetime access, a minimum of three times per week.

vii.      If the mother is able to travel to Canada, reasonable and generous time with the child, including overnights in Canada.

viii.      Such further and other access as the parties may agree to.