National Post

Monday, February 15, 1999

Law ignores children's suffering
Three Canadian children are launching an appeal in a bid to force Immigration Canada to bring back their mother, who was deported last year to Trinidad after spending most of her life here. It's a controversial area of immigration law: Do families have the constitutional right to stay together?

Marina Jimenez
National Post

Peter Redman, National Post / Grandmother Carthusha Skyers holds tightly to her Canadian-born grandchildren, from left: Loshon, 3, Tushon,4, and Fashion, 6, in her Brampton, Ont., home. The children's mother, Nicole John, was deported to her native Trinidad last May, having been in Canada for 13 years. Now, the children's grandmother may also face deportation.

Nicole John arrived in Canada when she was nine. Over the next 13 years, while officials considered her and her mother's applications for landed immigrant status, Ms. John grew from a young girl into a young woman and had three children.

Last May, Ms. John was deported back to Trinidad, and now lives in the small community of Los Bajos, Trinidad, in a one-room shack with rotting floorboards. She says she misses her three children and cries every time she speaks to them on the telephone.

Now six-year-old Fashion, four-year-old Tushon, and three-year-old Loshon are launching an appeal in a bid to have Immigration Canada return Ms. John and declare her deportation unconstitutional.

"These are innocent children here. All we are asking for is a fair consideration of their best interests," says Roger Rowe, the family's Toronto lawyer.

"People try to get on with their lives while they're here. The longer their immigration case takes, it's inevitable that children will be born."

The controversial -- and emotional -- issue of whether the interests of Canadian-born children should be considered in deportation cases has surfaced with alarming frequency in immigration law.

The Supreme Court of Canada is poised to rule on the issue in a watershed case involving Mavis Baker, a Jamaican mother of four, who lived in Canada for 18 years before being ordered removed. A decision is expected later this spring.

"I believe Immigration Canada should stop deporting non-Canadian parents of Canadian children until the Supreme Court settles the law on this point," says Mr. Rowe, who also represents Ms. Baker.

"Every democratic jurisdiction in the world except Canada gives due consideration to the best interests of children whose parents may be subject to removal."

But Canada Immigration says it is obligated to remove people who have no status in Canada -- and points out that the law is on their side.

"The law does not provide for us to grant status singularly on the premise of having children," says Kevin Sack, a spokesperson for Citizenship and Immigration Canada.

"These cases are incredibly complicated and this family has had a long chronology of hearings, appeals, and applications."

Mr. Sack says that when people who have no status in Canada have children, they complicate their lives at their own risk.

Currently, the federal court takes the view that deportation involves the rights of the parent, not the child, and that there is no constitutional right for families to stay together. Children are considered baggage that go along with the parents.

In an effort to circumvent the federal court, a growing number of immigration lawyers are turning to the provincial courts, relying on a legal concept known as parens patriae, meaning parent of the country. This gives the court inherent jurisdiction to protect the interests of children, particularly in cases where parents or guardians are unable to do so.

In May, 1998, a ground-breaking case was won under this authority.

The Ontario Court General Division ruled that to deport parents of young children is to deport or exile the children themselves. The judge found that this violates their Charter rights. (The decision was appealed, and the Ontario Court of Appeal has reserved its decision, pending the Supreme Court's ruling on the issue.)

Mr. Rowe will appear before the Ontario Court of Appeal March 4 to argue that the removal of Ms. John is unconstitutional.

He believes that Canada is not fulfilling its obligations as a signatory to the United Nations Convention of the Rights of the Child, which states that children should not be separated from their parents unless it is in their best interests.

"I'm not saying that every time a person comes to Canada and has children that they should stay," says Mr. Rowe.

"But it does happen and we need a fair way of dealing with it that is in accordance with Canada's international obligations, and with the Charter."

Ms. John fears her children may end up in the hands of the Children's Aid Society.

Their father was removed to Jamaica two years ago, after his application for landed immigrant status was turned down.

Fashion, Loshon, and Tushon are currently being cared for by their grandmother, Carthusha Skyers, who is also their litigation guardian.

But Mrs. Skyers, who arrived here from Trinidad 19 years ago, recently had her landed immigrant application rejected as well, and she fears that she may soon be removed.

"It's so hard on the kids. They cry for their mother and have problems sleeping," says Mrs. Skyers, who lives in a rented home in Brampton.

"Fashion went up to someone on a bus the other day and said, 'I don't know why you sent my Mummy home.' She is angry."

When Mrs. Skyers arrived here in 1980, she dreamt of giving her children what she never had: an education, and a chance at a better life.

"Life was tough back home. I had to go to work at age 16 as a maid, earning $60 a month," says Mrs. Skyers. In 1986, her children, Nicole John and her two sisters joined her, hoping they could all become landed immigrants.

They were all issued ministerial permits until 1994, while their claims were being processed.

Mrs. Skyers' application was de-railed following her divorce from her first husband, her sponsor, in 1990. And, though she had worked as a security guard and a factory worker, she was forced to go on welfare in 1987 following an accident.

In 1992, she also made an error she now regrets: She attempted to cash a cheque for $1,000 that was made out to someone else. The mistake left her with a criminal record, though she received a suspended sentence, and has applied for a criminal pardon.

In 1996, she got married again to a landed immigrant who works as a construction worker. Her husband, Fabian Skyers, tried to sponsor her on humanitarian and compassionate grounds, but the application was turned down. That made Nicole John's application more problematic, because she no longer had a sponsor, and was no longer under the age of 18.

Ms. John tried every avenue of appeal, at one point even filing a refugee claim, and an application to be considered for acceptance on humanitarian and compassionate grounds.

But she was unsuccessful on all counts, and in April, 1998, was ordered deported. She and her children were detained and held in the Celebrity Inn, in Mississauga, until her removal date.

Mrs. Skyers also alleges that Immigration Canada officials "assaulted" Ms. John, following an altercation at the airport.

Mrs. Skyers says that officials pulled Ms. John's hands behind her back, and held her down, and left her with a swollen foot and other injuries.

(Mr. Sack says Immigration Canada was not notified about the alleged altercation, and will investigate once a complaint is filed.)

It's too late for Ms. John. But Mrs. Skyers prays for a last-minute reprieve for herself -- and her grandchildren.

"Why does Canada want to separate a family? We've all been here for years and we have no foundation back in Trinidad," says Mrs. Skyers.

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