Sunday, October 5, 2008

Proxy marriages reside in murky legal territory


Immigration by Guidy Mamann
September 29, 2008 05:00

Q: I came to Canada as a refugee. After my arrival, my family organized a customary marriage ceremony for me with a girl back home. I was not at the ceremony but I was represented by my brother. She became my wife after the ceremony. In my immigration application I included her as my wife. Later, I did not want the marriage anymore so the families met to dissolve the marriage. Now I want to get married here. Do I need authorization from the Ontario government in order to get a marriage license?

A: A person who was divorced abroad and who wishes to marry in Ontario must obtain authorization from the provincial Minister of Government allowing a marriage license to be issued. The application must be accompanied by a legal opinion from an Ontario lawyer stating why the divorce should be legally recognized here.

That, I am afraid, is the easy part of your question.

The more difficult part of your question concerns whether or not you were ever legally married. If your proxy marriage did not create a legal union, then it follows that no divorce is needed.

A marriage that took place outside Canada is recognized for immigration purposes if it is valid “both under the laws of the jurisdiction where it took place and under Canadian law”.

Our immigration department’s policy manual states that “a marriage that is legally recognized according to the law of the place where it occurred is usually recognized in Canada.” Of course, this would not include polygamous marriages or those which are between close relatives since these types of unions are illegal here.

So, if your marriage by proxy is legally recognized in the country where it took place, then from the Canadian point of view, you are legally married and therefore require a legal divorce to dissolve it. Assuming the family meeting dissolving the marriage constitutes a legal divorce where it took place, the foreign divorce will usually be recognized in Canada if your spouse was ordinarily resident in the foreign country for at least one year immediately preceding the divorce application.

If the marriage that took place abroad did not create a legal union, then you might have a different problem if you now deny ever having been legally married. Remember, you described yourself as married in your immigration application. If you now take the position that you were never married, your application might be refused by an overzealous officer who may cite you for “misrepresentation.”

I would get a family law specialist to assess the validity of both your marriage and divorce and the advisability of seeking a divorce or an annulment here in order to erase any doubts as to your eligibility to marry.

As you can see, proxy weddings can cause big headaches…and are nowhere near as fun as the real thing.


Liberal immigration platform completely misses mark


Immigration by Guidy Mamann


Now that a federal election has been called, the battle for Canada’s “immigrant vote” has officially begun.

On Saturday, Liberal Leader Stéphane Dion made the first grab for the ethnic vote by promising to:

-support the admission of “significantly more permanent residents to Canada”;
-reverse the “dangerous immigration changes” introduced by the Conservatives this past summer;
-spend $400 million to make our immigration system more efficient;
-spend $200 million on enhanced language training for newcomers; and
-spend another $200 million to better prepare newcomers for the Canadian workplace.

Dion’s plan lacks credibility and suggests that the Liberals have no idea as to what is wrong with our immigration system or any idea as to how to fix it.

Firstly, this is not the first time we have heard a Liberal promise to increase immigration levels. In 1993, the Liberals published their Red Book which promised to increase annual immigration levels to 1% of Canada’s population. In the past 15 years, there have been no less than seven Liberal immigration ministers, and not once has that promise been honoured. In fact, the Liberals, while in power, allowed our immigration levels to drop significantly from 0.9% to just 0.6% of our population. Although the one percent target seems to have now been clearly abandoned, Dion nonetheless reserves considerable wiggle room by refusing to specify the actual number of annual immigrants he plans to admit.

As for his promise to reverse the Conservative’s summertime immigration power grab, wasn’t it Dion’s party that just barely showed up to oppose the bill which allowed it to happen? If immigration fairness was so important to the Liberals, they would have shown up for work in Parliament on that very important day in June.

Although I would love to see a more efficient immigration system, Dion provides absolutely no details as to how he plans to spend the promised $400 million. Surely, a plan to spend that kind of our hard-earned money cries out for some minimal details. He provides none. In any event, it’s impossible to justify such a huge price tag without some idea of the service standards that he seeks to achieve or the increased numbers he expects the department to generate on an annual basis.

As for yet another increase in spending for language and workforce training, I think it is fair to assume that if our immigration system was selecting the right candidates from the global pool of 7 billion people, we wouldn’t need to spend much money at all on language and workplace training except perhaps for members of the family class and refugees who are not assessed on these abilities.

We have serious problems in our immigration program that our political leaders are not even trying to address. We have a business immigration program that is so slow, cumbersome, and unpredictable that it is completely unappealing to the many foreign entrepreneurs and investors who would otherwise invest here. We continue to bring in immigrants that our industries don’t want and deny access to those who are sorely needed. We have a Safe Third Country agreement with the U.S. which is used by our government as authority for denying protection to legitimate refugees who are destined here. We have section 117 (9) (d) which, on a daily basis, permanently separates foreign spouses and children from their Canadian relatives. We have a humanitarian provision in our legislation which our immigration officers spend countless hours figuring out how to avoid and a federal court which regularly lets them get away with it. The list of problems is long and painful.

Don’t get me wrong, I’m not necessarily a fan of the immigration policies of the current government. But an unconvincing, vague, and wasteful Liberal plan should not be left unanswered.

Avoid delays when making a refugee claim

Immigration by Guidy Mamann

Poor Deca Lesmond.
In 2001, she came to Canada with her daughter and the child’s father

While in Canada, Deca’s partner was abusive with her and in 2003 he was arrested and placed on a protection order. In March 2006 he was deported to St. Lucia, all-the-while blaming Deca for his misfortunes and threatening to “get her” when she returned home. Citing her fear of her ex-partner, Deca made a refugee claim here in August 2006.

The Immigration and Refugee Board accepted the truth of the essential facts of her case. In particular, the Board accepted that not only was Deca abused in Canada but that she was also abused by her ex-partner prior to coming here.

Nonetheless, the Board denied her asylum claim.

The Board resorted to the often-used ground for refusal: “delay.”

The Board felt that Deca’s actions were not “consistent with the actions of a person with a subjective fear of persecution.” It reasoned that she obviously knew how to turn to Canadian authorities for protection from her husband when he abused her here, and since she was being abused by him prior to their arrival here, she should have advanced her claim as soon as she arrived in Canada.

The Board expects that a person with a genuine fear of persecution will immediately seek asylum immediately upon arrival here. Board members often reason that a person who doesn’t do so is obviously not in genuine fear.

Any lawyer who practices in this field knows this not to be the case for several reasons.

Firstly, many genuine claimants are afraid to make a claim at the airport since they believe that they will be sent back on the very same plane on which they arrived. They prefer to enter Canada, get away from the airport, and seek trustworthy guidance before approaching authorities.

Secondly, when people are in genuine fear, they will avoid anything that creates the possibility that they might be returned to the place where they face danger. If they make it to Canada without incident, they will often remain underground for years without making a claim. They know that making a successful claim only has, statistically speaking, about a 50 per cent chance of success and, of course, a 50 per cent chance of refusal. They feel that it is safer to remain underground than it is to surface.

Thirdly, many claimants come from countries where authorities simply can’t be trusted. Getting them to trust ours takes time.

Yet in other cases, clients who appear to qualify for permanent residence in Canada might apply through other means believing them to be a safer option than playing Russian roulette with the Board.

It sometimes seems that the Board is stuck in the days of the Cold War when the very first words uttered by a defector were a request for protection.

Deca got lucky when she appealed to the Federal Court. Mr. Justice Campbell found it “obvious” that until 2006 there was no reason for her to make a refugee claim and concluded that the decision to the contrary constituted a “fundamental reviewable error.”

A delay in making a refugee claim carries a certain amount of risk and should be avoided whenever possible.

Having said that, I believe that it is those who truly fear for their lives who are in the best position to decide for themselves, and their dependents if, and when, they should place their lives in the hands of our less-than-perfect refugee board.

TORONTO CHINATOWN မဲဆႏၵနယ္မွာ

Riding: Trinity-Spadina
ROBYN YOUNG/FOR METRO TORONTO
October 02, 2008 05:57

Trinity-Spadina covers 26 square kilometres in Toronto’s downtown core and is sometimes referred to as the “bedroom” for the arts community because a large number of its inhabitants are artists or somehow connected to the arts.

The riding has a population of 115,361 and about 94,000 of those people are eligible to vote.

In the past two elections Trinity-Spadina residents have seen a tight race between former Liberal candidate Tony Ianno and NDP candidate and wife of party leader Jack Layton, Olivia Chow.

From nargis
From nargis
Ianno squeaked into Parliament in June 2004 with about 1,000 votes over Chow who won the riding in the following election in January 2006 by almost 4,000 votes. Chow has been the MP for the area since and will go up against six new candidates Oct. 14 including Liberal Christine Innes — also the wife of former MP Ianno — and Conservative candidate Christine McGirr.

Chow also faces two independent candidates and a member of the Libertarian Party of Canada.

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