WHEN IMMIGRATION LAW AND FAMILY LAW COLLIDE
The Honourable Justice S.B. Sherr dealt with a motion to change a custody/access order. Currently, the child was spending an equal amount of time with each parent. There was shared custody and mutual cooperation between the parents.
The court order needed to be changed because the Mother was just ordered to be removed from Canada by the Minister of Public Safety. Now both parents wanted sole custody of the child and the child to reside with him or her full-time.
The Honourable Justice S.B. Sherr considered the best interests of the child. The following conclusion was reached:
- The parties are both good parents and capable of meeting the child’s needs on a day-to-day basis.
- The child will have more opportunities to meet her potential growing up in Canada than in St. Vincent. She will enjoy a higher standard of living in Canada. She will likely receive better education and health care and have access to better services. Services may be needed if her behavioural issues continue.
- The child is a Canadian citizen. She has grown up in Canada and has never been to St. Vincent. Canada is her home.
- The child has an established social network in Canada. She is comfortable and doing well at her school. She has a social worker to assist her. The child is sociable and has friends in Canada.
- The child has a close relationship with her paternal family in Canada. She does not have the same quality of relationships with her maternal family.
- The child’s need for stability and continuity is better met in Canada.
- The father has demonstrated a better ability to meet the child’s academic and social needs than the mother.
- The father’s plan of care better meets the child’s emotional, physical and developmental needs than that of the mother’s.
The Father’s success is noteworthy given that he was substantially in arrears of child support.
Justice Sherr noted, as an aside, that a Removal (Deportation) Order is stayed if it would contravene any judge’s Order providing an agent of the Ministry of Public Safety was given an opportunity to make submissions to the Judge before he or she makes the Order.
In general, it appears that a Judge can make an Order that a child is to stay in Canada, but powerless if the parent is deported.
You can find the full text of the decision here.