Supporting Victims of Domestic Violence: Abolishing the Conditional Permanent Residence Provision and the Next Steps

Supporting Victims of Domestic Violence: Abolishing the Conditional Permanent Residence Provision and the Next Steps

Arden Mathieson
Summer Law Clerk
Edmonton Community Legal Centre

Prior to April 28, 2017, immigrants to Canada under the spousal sponsorship program had to live with their sponsors for two years in order to prove their relationships were genuine. If they moved out before the end of the second year—they lost their permanent residence and were accused of misrepresentation. This conditional permanent residence provision was introduced in October 2012, as a means to prevent immigration to Canada through fraudulent marriages. What may have been a well-intentioned attempt to regulate immigration, actually resulted in increased marginalization of immigrant spouses who were experiencing domestic violence.

The permanent residence provision forced victims of domestic violence to choose between leaving their abusive partners and losing their immigration status. Worse, some sponsors took advantage of the provision to perpetrate or continue violence and abuse. The West Coast Legal Education and Action Fund’s [LEAF] position paper captures this vividly: “[A]busive sponsors prey upon the precarious immigration status of their partners to control their behaviour and stop them from reporting the violence or leaving the relationship.”[1]

Low levels of reporting and language barriers limit our understanding of family violence, particularly within newcomer families. Relatively little data exists on how family violence plays out among those who have relocated to Canada. A recent resource by Justice Canada, Abuse is Wrong in any Language, recognizes that, sometimes, behaviours occur in immigrant families that are not always recognized as family violence or crimes.[2]
Examples of family violence include:

  • Physical abuse
  • Sexual abuse
  • Emotional/psychological abuse/violence
  • Economic or financial abuse
  • Spiritual abuse[3]

There are many ways an immigrant could prove they were once in a genuine relationship without continuing to live with an abusive spouse: for example, immigration officers often rely on documented love letters, text messages, emails, photos from events like weddings and anniversaries, marriage certificates, children’s birth certificates, letters from family or friends, and sworn affidavits. So why, given that the federal government was aware that domestic violence was a problem in spousal sponsorship, did they require permanent residents to stay in an unsafe homes and relationships?

In April 2017, the Liberal government abolished the conditional permanent residence provision for spouses and partners. Abolishing the provision is a good first step toward conceptualizing access to justice for vulnerable immigrants, but it is not enough. As service providers, we also need to understand how to support immigrants once they leave abusive sponsors.

As the Honourable Donna Martinson, a retired judge of the British Columbia Supreme Court, has explained:

Meaningful access to justice requires more than just providing women and children with access to any lawyer, or any judge. The justice part of access to justice requires that those lawyers and judges dealing with family law cases and criminal law cases have the interest in, aptitude for, and the professional experience and expertise required to deal with the complexities of, and multifaceted nature of, IPV [intimate partner violence].[4]

To provide access to justice (and not just access to the justice system), it is essential for lawyers, judges and immigration officers to take professional training in how to recognize and respond to domestic violence, and in the tactics and dynamics of coercive control. Unless the key players have the right training, serious harm to immigrants ’physical, emotional, and spiritual well-being will continue, unexposed.

In my experience with the Edmonton Community Legal Centre (“ECLC”), I have noticed that abusive sponsors can use the legal system to exert power and control over immigrant victims of domestic violence in two ways. Firstly, abusive sponsors may initiate unwarranted civil or family litigation to exert their dominance. Often unable to afford legal representation, the Respondent spouses may succumb to the demands of their abusers. Secondly, abusive sponsors may threaten (and some individuals act on these threats) to call the police to have their partners charged with non-existent crimes; revoke immigration sponsorships; make anonymous, unwarranted tips to social assistance authorities to prompt fraud investigations; or complain to Child Protective Services about their partners’ fabricated neglect or abuse of their children. The engagement of any one of these legal systems can trigger investigations by multiple authorities. For example, a call to the police will usually prompt a report to Child Protective Services and, for spouses without permanent residence, to Immigration, Refugees and Citizenship Canada. In such circumstances, participation in the legal system by sponsored spouses is not access to justice; rather, it further marginalizes vulnerable newcomers. In this way, newcomers may have access to a legal forum or process, but not access to justice.

An in-depth and intersectional appreciation of domestic violence — and of how it is enabled by social structures and institutions, law included — is critical. These structures include the overlapping systems of oppression that operate not only to render some spouses—most often women–more vulnerable to violence and with fewer resources to exit relationships, but also to construe only some spouses as “victims” deserving of legal redress.

Now that the conditional permanent residence provision for spouses has been abolished, the next step is collaboration between legal actors.  Lawyers, judges, and immigration officers must integrate with social service providers like shelters, counsellors, social workers, and churches to meet the needs of vulnerable immigrant spouses. None of the above actors can address domestic violence on their own. As experts in our respective fields, we must learn from each other and capitalize on shared resources. It is not enough that an abused immigrant is permitted to leave their sponsor and continue to reside in Canada. True access to justice requires physical and psychological supports. This is why at The Edmonton Community Legal Center we have a multi-disciplinary team that includes an immigration lawyer, a registered immigration consultant, asocial benefits advocate, and a family law client liaison who connect clients with the various social services they need.

REACH Edmonton provides training to prevent family violence in a cultural context. If you are connected to families from emerging ethno-cultural communities and would like a session on healthy families or healthy youth relationships, contact Justin Otteson (780-238-3756) or Helen Rusich (780-619-8780) of REACH Edmonton.  I encourage members of the public, legal actors and service providers to join me in learning more about how to best support immigrant women and other vulnerable spouses.

[1] West Coast Legal Education and Action Fund. (2015, January). Position Paper: Sanctuary City Policy. Retrieved June 21, 2017, from http://www.westcoastleaf.org/wp-content/uploads/2015/01/WCL-Position-Paper-Sanctuary-City.pdf

[2] Government of Canada Department of Justice. (2009). Abuse is Wrong in any Language. In Criminal Justice. Retrieved from http://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/fe-fa/index.html

[3] Ontario Council of Agencies Serving Immigrants. (2006, September). Prevention of Domestic Violence against Immigrant and Refugee Women. Retrieved from http://ccrweb.ca/sites/ccrweb.ca/files/ocasi_domviolence_resource_book_nov2006_0.pdf

[4] Hon Martinson, D. (October, 2014.) keynote address delivered at the Canadian Observatory on the Justice System’s Responses to Intimate Partner Violence National Conference, University of New Brunswick:  Multiple Court Proceedings and Intimate Partner Violence: A Dangerous Disconnect. Retrieved from: http://www.unb.ca/conferences/mmfc2014/_resources/presentations/donna-martinson-keynote.pdf

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Door-to-Door Deception

As of January 2017, section 9.1(1) of the Direct Selling Business Licensing Regulation has made it a prohibited practice to sell furnaces, air conditioners, water heaters, windows and energy audits door to door.[1] This regulation does not retroactively apply to individuals who purchased these items before January 2017. Numerous consumers have been tricked and taken advantage of by door-to-door salesmen, and this legislation seeks to protect future consumers.

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Making a List and Checking it Twice: Barriers to Access to Justice

Here’s a link to a SLAW post by Manitoba lawyer Karen Dyck:

http://www.slaw.ca/2016/03/23/making-a-list-barriers-to-access-to-justice/

In this blog post, the writer presents an itemized list of “barriers that stand between ordinary people with legal problems and their effective access to justice,” but acknowledges that the list is necessarily incomplete (being based solely on her personal knowledge and experiences). She then invites readers to help complete the list by identifying, by way of the comments section, additional “ongoing barriers or obstacles to access to justice” facing those we serve—and those we don’t.

Taking her up on that offer, I can think of a few additional barriers:

  • Cultural barriers between the person needing access and the service provider (for example, lack—or perceived lack—of gender sensitivity or understanding of different indigenous cultures on the part of the service provider)
  • Depression or other mental illness impacting the ability of the person needing access to justice services
  • Mistrust of authority generally (Ms. Dyck mentions a mistrust of lawyers, but I think a broader mistrust of the legal system is worth separate mention)
  • Conflict avoidance
  • A lack of available alternate legal problem-solving mechanisms (such as mediation, etc.) more appropriate for some people and situations
  • The power imbalance between parties creating a sense of fear or hopelessness
  • Child care and income-earning responsibilities effectively eliminating the amount of free time some have to invest in finding and accessing legal services
  • The transportation, child care, and lost earning costs of accessing legal services

I would invite our readers to contribute their ideas to this list as well, and to take it one step further:

  • Identify one thing you can do, right now, to help dismantle one of these barriers to access to justice!

 For my part, I’m going to start up a conversation with our intake staff to make sure we offer bus tickets (which we have available, in small quantities) and telephone appointments to anyone who calls us seeking free legal advice but hesitates to book an in-person appointment at our downtown office.

 

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Increasing Access to Justice with Alternative Fee Structures

Individuals who find themselves unable to afford legal services may find assistance in the form of pro bono legal services or online self-help resources. While these are important ways that the legal community is improving access to justice, they are by no means a comprehensive solution. Online self-help resources may have limited effectiveness for those who lack literacy skills or access to technology (see previous Access Review post here), while pro bono legal services are usually only available in major urban centres, and to those who meet low-income thresholds that exclude the middle class.

This persistent gap in access to legal services raises the question of what lawyers can do to help improve access to justice. The current “billable hour model” has made legal representation unaffordable for low- and middle-income earners. John-Paul Boyd suggests that offering alternative fee structures can effectively increase access to justice while also maintaining the profitability of your law practice. One type of alternative fee structure that many lawyers are familiar with is the contingency fee arrangement, in which a lawyer’s payment is tied to success of the case. Other less common alternatives that are gaining attention in the legal profession are the “unbundling” of services, flat-rate fee structure and sliding scale fees.

“Unbundled” legal services, also known as limited scope services (often provided in accordance with carefully crafted limited-scope retainers), refer to the provision of limited legal services or representation for discrete parts of a legal matter without the expectation of full representation.[1] The lawyer may still charge her regular hourly rate, but because the client can choose ahead of time which specific tasks she wants to retain the lawyer to perform, the client has a better idea of what the final bill will be. Because it is much easier to estimate the cost of discrete tasks in advance (for example, a client could retain counsel to do three hours of legal research and provide a brief summary of the results of that research), the client has more control over the cost of legal services she purchases than if she had hired a lawyer on a full retainer. Some clients may want a lawyer to provide courtroom representation only (choosing to do all preliminary work themselves); others may want to pay for a legal opinion and research, but represent themselves.

Another alternative is the adoption of a flat-rate billing model, under which a lawyer sets fixed rates for the provision of identified legal services regardless of how much time that service ends up taking. This model allows clients to choose which services they want, and to know the entire cost ahead of time. Criminal defence lawyers regularly operate with flat-rate billing, but it seems much less common in other areas of law.

Lawyers can also adopt a sliding scale fee structure, in which clients are charged variably for legal fees based on ability to pay. Under this model, a lawyer indexes her hourly rate according to factors such as household size and income so that clients earning lower household incomes are charged a lower hourly rate for legal services. Many lawyers who use this fee structure also set income eligibility requirements to increase access to those who cannot afford full-price legal fees, but earn too much income to qualify for pro bono services. Here is an example of a sliding scale fee chart based on family size and family income:[2]

If you are a lawyer adopting an alternative fee structure, experts stress the importance of establishing clear expectations with your client, and carefully considering which services you will offer under that structure. Before adopting an alternative fee structure, lawyers should understand and be prepared to manage the potential risks involved. For excellent advice about how to successfully implement “unbundled” services and flat-rate fee structures, read these articles:

“DIY A2J 4: Unbundle Your Services, Reinvent Your Billing Model”

Alternative fee structures like unbundled services, flat-rate fees and sliding scale fees can make legal services affordable for clients by allowing them increased control over what services their lawyer provides, and advance knowledge of the cost of that lawyer’s work. They are, therefore, one way that lawyers can increase access to professional assistance—and justice—for those who can’t afford to retain counsel under a traditional billing model.

[1] Nancy Carruthers, “Ethically Speaking: The Ethics of Limited Scope Retainers” (2012) 10: 1 The Advisory 11.

[2] Source: Open Legal Services (http://openlegalservices.org/do-i-qualify/?)

 

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Language Barriers: Lost in Translation

Language Barriers: Lost in Translation

As a volunteer in family docket court, I frequently watch litigants struggle to communicate with judges, duty counsel, and even their own lawyers. If English or French is not someone’s first language, it is extremely difficult for them to communicate their point of view.  Language barriers hinder a person’s ability to receive helpful advice, read and complete court documents, and understand orders or judgments.  Even in a trial setting, litigants often go without interpreters when they are badly needed. There is a shortage of interpreters in Canada, meaning some individuals go without interpreters at all, while others rely on unqualified translators or friends or family.

Although section 14 of the Charter of Rights and Freedoms guarantees an accused person the right to understand the case against them, this right is easier stated than respected.  Unlike the situation in other provinces, interpreters are only provided by the courts in Alberta for criminal matters.[1] This means civil litigants must find their own interpreters, either on their own or through organizations like the Family Centre, Multicultural Health Brokers, the Edmonton Immigrant Services Association, or the Multicultural Family Law Facilitators Project.

According to Mike Sadava for The Lawyers Weekly, there is a shortage of qualified interpreters in Alberta.[2] As trends in immigration change – for example, there has been an influx of new immigrants from Somalia in recent years, and there’s about to be a marked increase in Arabic speakers living here – there may not be enough qualified interpreters to meet demand. He explains that with no trained translators or interpreters available, the courts are sometimes forced to rely on individuals who simply speak the appropriate language but are not trained interpreters.

That lack of formal training is a problem, because in order to be effective, interpreters need to be more than just fluent in the language at issue–they need to be trained in court procedure and legal jargon.

Interpreters must also decipher the meaning of a phrase or sentence, and not simply translate the words from one language to another.  Lawyer Joseph Fearon explains that simple errors like these can result in miscommunication:

“In my experience, many Chinese speakers use the term back to refer to their entire back
and neck. In a personal injury lawsuit where someone feels pain is important, the Judge
or jury could view someone who complains of “back” pain but has only visited their
doctor for neck problems as less credible.”[3]

Such miscommunications have resulted in mistrials, but when errors are not discovered, it means anyone who doesn’t speak fluent English or French suffers. Anthony Moustacalis, Toronto lawyer and president of the Criminal Lawyers’ Association in Ontario, indicates that miscommunications due to language barriers are frequent occurrences.[4]

So what can be done to improve access to interpreters’ services – and to improve the quality of those services?

Some lawyers and court interpreters believe interpreters are underpaid: it’s tough to attract adequate numbers of educated speakers in less commonly-spoken languages if interpreters’ salaries are not competitive. Other advocates argue that there aren’t enough training programs available for interpreters (like the ones at Seneca College in Toronto and the Vancouver School of Interpreting and Translating). Even where trained interpreters are available, many litigants simply can’t afford to pay them, and it isn’t acceptable to have a situation where justice is accessible only to those who can afford it.

One thing is clear: the issue of miscommunication is a complex problem without a simple solution. As Canada’s population of newcomers continues to increase (including immigrants, temporary foreign workers, and even undocumented workers), language barriers must be addressed in order to ensure access to justice.

Sources and Resources:  

“Coping with the Courtroom: Essential Tips and Information for Self-Represented Litigants”, online: Alberta Courts <http://www.albertacourts.ab.ca/fjs/selfhelp/Coping_With_the_Court room.pdf>

Fearon, Joseph, “Reasonable Doubt: Language Barriers and the Legal System” (2013), online: The Georgia Straight <http://www.straight.com/news/396331/reasonable-doubt-language-barriers-and-legal-system>

Kumar, Nayanika, “Multicultural Family Law Facilitators Project” (2014), online: Law Now: Relating Law to Life in Canada <http://www.lawnow.org/multicultural-family-law-facilitators-project/>

Sadava, Mike, “Misinterpretation: Crisis in Canadian Court Interpreting” (2014), online: Lawyers Weekly <http://www.lawyersweekly.ca/index.php?section=article&articleid=1306&gt; (online article no longer available)

Smalls, Peter, “Court Interpreter Shortage Nears Crisis” (2011), online: The Toronto Star <http://www.thestar.com/news/crime/2011/01/28/court_interpreter_shortage_nears_crisis.html>

[1] The province of British Columbia, for example, offers interpretation services at all levels of court in criminal matters, and in Provincial Court for any family law issue. In Ontario, interpreters are provided at Provincial Court if the litigant qualifies for a Court Services Division fee waiver.

[2] Nayanika Kumar, “Multicultural Family Law Facilitator’s Project”, Law Now: Relating to Law Life in Canada, 2014, online: <http://www.lawnow.org/multicultural-family-law-facilitators-project/>.

[3] Joseph Fearon, “Reasonable Doubt: Language Barriers and the Legal System”, The Georgia Straight, 2013, online: <http://www.straight.com/news/396331/reasonable-doubt-language-barriers-and-legal-system>.

[4] Peter Smalls, “Court Interpreter Shortage Near Crisis”, The Toronto Star, 2011, online: <http://www.thestar.com/news/crime/2011/01/28/court_interpreter_shortage_nears_crisis.html >

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Repost from LawPRO: Providing High Quality Service to Indigenous Clients

A recent issue of LawPro Magazine was devoted to considerations specific to working with Indigenous clients. This post introduces and summarizes Nora Rock’s article, “Providing high-quality service to indigenous clients,” available here.

The article provides introductory comments on how to offer high quality service to Indigenous clients and, while it focuses on individual capacities such as listening, communication, advocacy, and collaboration, it also contextualizes Indigenous client services a within a larger framework of Canadian-Indigenous relations. It incites responsibilities and opportunities for recognition and reconciliation that may extend beyond one’s established service experience.

Recognizing an Indigenous client, even if not disclosed, and being aware of any immediate assumptions about their identity or legal needs is the first step to effective service delivery. In Alberta, there are approximately 44 First Nations, as well as Metis, Inuit and non-status Peoples who live and often travel between the Treaty areas of 6, 7, and 8. Alberta is also unique for the eight Metis Settlements with their Metis Settlements Tribunal. All Indigenous groups have distinct histories that have resulted in specialized legal needs so it becomes essential to assess how qualified one is to meet these needs. There is extensive specialized legislation and procedures that apply to Indigenous people and issues, and, though it will depend on the area of law, some issues are best left to specialists.

The article explains “effective representation…requires an appropriate awareness of Indigenous experience to avoid re-victimizing clients…” Lawyer education on Indigenous experiences can enhance professional relationships and build trust between individuals and the justice system. This includes awareness of the history and legacy of colonial systems such as the Indian Residential Schools as well as Aboriginal treaty and Indigenous rights such as those articulated through the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

As in all legal practice, effective lawyers avoid making assumptions about a best course of action. They determine a client’s needs and educate on both substantive and procedural law as well as the range of possible remedies. The most important skill when working with Indigenous clients is to listen “with bigger ears” and ensure that they become informed decision-makers in their legal process.

There is growing recognition for opportunities to enliven Indigenous legal traditions in Canadian law. The Canadian Bar Association calls for representation of all Canadian legal traditions when making judicial appointments, it affirms s. 35 promises, and calls for recognition and compliance with UNDRIP. Lawyers’ responsibilities to enhance legal plurality may require that lawyers anticipate differences between Canadian and Indigenous legal strategies and gain consent on his or her course of action. While the Alberta Law Society does not have the equivalent, the Law Society of Upper Canada has amended their Rules of Professional Conduct to recognize the right of Indigenous clients to use Indigenous languages.[1]

Indigenous people occupy all ranges of socio-economic status, but, because Indigenous people experience low or no income at significantly higher rates than non-Indigenous, it is likely that poverty law practitioners in Alberta will meet and represent Indigenous clients. Lawyers who assume this responsibility can play a role in the larger process of reconciliation. This special opportunity can help clients exercise their rights, support family and community self-determination, and contribute to a more dynamic and representative legal system.

 

[1] See the Rules of Professional Conduct of the Law Society of Upper Canada, section 3.2-2A, available here.

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Repost from ABlawg: Status of Women Deputy Minister Visits the University of Calgary

This is a repost of University of Calgary Professor Jennifer Koshan’s recently published wishlist of matters for the new provincial Status of Women Ministry (together with the Ministry of Justice) to address.

http://ablawg.ca/2016/01/15/status-of-women-deputy-minister-visits-the-university-of-calgary-a-wish-list/

A suggestion of key interest to us is that the Alberta Human Rights Act “be amended to protect against discrimination on the basis of social condition or social disadvantage.” Social condition is a term which, while lacking a universally shared and understood meaning, generally refers to a person’s social position or class and, where added to human rights legislation as a prohibited ground, is intended to address the social stigma associated with being poor. The Ontario Human Rights Commission has published a good primer on the issue of adding social condition to human rights legislation, available here.

All of the clients we serve at the ECLC are poor, and a high percentage of them experience discrimination because of their poverty. Being poor usually means more than just lacking economic resources–it means having inadequate social and cultural resources as well, and it often means being denied the ability to enforce one’s basic human and legal rights.

Extending human rights protection (for example, in residential tenancies, employment, or services customarily available to the public) to those of us experiencing discrimination because of our social condition would send a strong message—to everyone—that we are all equally valuable, regardless of our social position, class, English grammar, what we do for a living, or where we sleep at night.

It would be interesting to hear the position of the Alberta Human Rights Commission on this proposed amendment, and to know what the Justice and Status of Women Ministers think about it.

 

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