In the best interests of Sharia
When Clara, and her young daughter, Sharia (not their real names), came to Canada over six years ago, they had a big surprise awaiting them.
They had come to join Sharia’s father, Torrance (not his real name), who did not have permanent resident status. But on their arrival, they learned that he had entered into a relationship with a Canadian citizen and had children with his Canadian spouse.
So what did the new arrivals do?
Although Clara was upset on learning the news about Torrance, she decided that in the best interests of her daughter, she would remain in Canada. She wanted Sharia and Torrance to have a father- daughter relationship which she never had.
Torrance did assist Clara in obtaining an apartment and a job and played an active role in Sharia’s life as a father.
In mid 2016, Clara contacted my firm for advice with respect to an application for permanent residence under humanitarian and compassionate(H&C) grounds.
Clara, a citizen of a Caribbean country, related a woeful story about her struggles “back home” and her traumatic childhood experiences.
She also reported that while in Canada she was duped by someone whom she had retained to file an H&C application on her behalf.
She said she had paid that person to handle the matter but he never submitted the application and had misled her about the immigration process.
Clara then retained my daughter, Cindy Ramkissoon-Shears, to pursue the application which was submitted in December 2016. It provided extensive details of Clara’s life in her home country and her immigration history. It noted her reasons for coming to Canada and for remaining in the country.Most importantly, it explained why she could not apply in the normal manner for permanent resident status and dealt with what was considered to be the in the best interests of Sharia, a citizen of the United States.
Clara was forthright in explaining the “overstay” of her visitor’s status and the fact that she was working in Canada. Within the Canadian immigration legislation, an applicant may request an exemption “from any applicable criteria or obligation of the Act.” And, the Minister may grant such exemption(s), taking into account the best interests of the child, if they are justified by such H&C considerations relating to the applicant. Such a request for an exemption was made in Clara’s case.
Clara had begun working in Canada as a receptionist but later became a caregiver for two different families. She then opened a business and began filing her income taxes. In January 2018, she submitted an update of information -specifically her income taxes, as part of her “establishment” in Canada.
In April 2018, my daughter again updated Clara’s application, including her new employers’ information and supporting letters from each employer. She also updated school reports for Sharia and other “establishment documents” such as the purchase of a new vehicle and her car loan.
Because of Clara’s job as a caregiver, she may have been entitled to a work permit. However, it was argued that because she is a “shared child caregiver” (between two families), a Labour Market Impact Assessment (LMIA) would not be granted in her case. The families were unrelated and she worked on a part-time and daily basis for each family,though accumulating full-time hours for the week. Her employers would be found ineligible to support her LMIA and she therefore would not be able to apply for work permit. In addition, all of her work experience as a caregiver was accumulated in Canada, while she did not hold legal temporary resident status.
Each of Clara’s employers’ discussed the difficulties they would experience in finding a new caregiver and the struggles they faced in the past, in finding trustworthy childcare. Because of the limited spaces and long waitlists, each of her employers opted for private home care – specifically, where a caregiver would come to their home and provide such services. Clara was already working in these homes for over a year prior to the submission of her application; therefore the children had become very attached to her daily presence in their lives. An important factor was the support of her employers and a description of their personal circumstances.
A few weeks ago, Clara was notified that her application was approved, based on the hardships she would suffer to apply from outside of Canada. She was overjoyed to hear the news. Her daughter, Sharia was also included in this decision. Clara immediately applied for her “open work ” permit so she could further establish her business and have a temporary resident document in her possession until she becomes a permanent resident of Canada.
Good work, Cindy, and congratulations, Clara.
SUKHRAM RAMKISSOON is a member of ICCRC and specializes in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756