Whither gay marriage Down Under?

It has not been a good week for LGBT rights. On Tuesday, India’s Supreme Court reinstated the country’s criminal sanctions against same sex relationships, effectively criminalizing the LGBT community. Today, Australia’s High Court decided unanimously that state legislation permitting same-sex marriage violates the Australian constitution.

The case arose when the Australian federal government took the Australian Capital Territory (ACT) to court over legislation permitting same sex marriage. The ACT passed a bill in October making the territory the first part of Australia to legalise same-sex weddings. The Australian government argued that the federal Marriage Act defines marriage as solely between a man and a woman, and that Australian states cannot override that definition.

In a unanimous decision, the High Court of Australia agreed.  It ruled that only Australia’s federal Parliament had the power to define marriage, and that it did so unequivocally through the Marriage Act. It is therefore only within the power of Australia’s federal Parliament to change that definition.

You can read the High Court’s decision here:


The decision is certainly a set back in the march toward same sex marriage in Australia. Despite the fact that more than two-thirds of Australians favour same-sex marriage, there seems to be little interest from Prime Minister Tony Abbott’s government to move forward with change.

At a personal level, the decision is devastating for the 27 same-sex couples who were married in the ACT since last October. “It sends a message that the love of a same-sex couple is a lesser kind of love, is second-rate.” said an email release from GetUp Australia. “As an Australian married, there is no way that I’ll return to Australia and not have my marriage recognized” said David Brown, a Canadian permanent resident who was married to his Canadian spouse in Toronto.

For the Canadian LGBT community, equality seems to have arrived swiftly and effortlessly in retrospect. In many parts of the world, this is clearly not the case. The struggle for equality requires a mix of strategies - legal, political, and above all personal. In Australia as in India and the United States, public support for gay marriage has been on a steady increase. The more that this trend continues, the more that success will be inevitable, eventually.

India’s body blow

Anyone who thinks that the path toward non-discrimination toward the LGBT community is smooth and inevitable should study the Supreme Court of India’s decision yesterday to uphold laws criminalizing same-sex relations. The Court overturned a historic 2009 ruling by the High Court of New Delhi which ruled that such laws are unconstitutional. The decision can be found here:


“This decision is a body blow to people’s rights to equality, privacy and dignity,” said G Ananthapadmanabhan, Chief Executive, Amnesty International India.

In fact, at a time when increasing numbers of countries are recognizing the importance of protecting the LGBT community from discrimination and recognizing same-sex marriages, there are other countries in which the trend is heading in the opposite direction. India now joins Russia and Nigeria among countries which have set back LGBT rights to varying degrees in 2013.  While the Supreme Court noted that people were rarely prosecuted under the law – at least not publicly – it was widely acknowledged by all parties in the case that these laws provided an important foundation for the harassment of the LGBT community in India from law enforcement officials, members of the public, and their own families. It has led to many successful asylum claims from members of the Indian LGBT community in Canada and other countries.

There is irony in the fact that laws criminalizing homosexuality are holdovers from India’s British colonial past, and that Britain has not only moved past criminalization, but will begin recognizing same-sex marriages in 2014.

The Supreme Court stated that it is up to Parliament to repeal these laws, and the Indian government has expressed some support for doing so. However, with general elections scheduled to take place by next May and the socially conservative Hindu nationalist opposition gathering momentum, such moves are unlikely.




Health care restored for refugees

Since 1957, the federal government’s Interim Federal Health program has provided temporary coverage of medical costs for refugee claimants in Canada while they wait for coverage under provincial programs. The program is based on the recognition that refugees are forced to flee and should not be deprived of medical care while they await a decision on their application for protection. It offered basic coverage, mostly for assessment, diagnosis and treatment of serious conditions.

In June, 2012, the federal government implemented severe cuts to the IFH program, dividing refugee claimants into various categories with varying amounts of care. Prescription medication was completely cut for all refugee claimants, even for cancer patients, with the exception of diseases that could pose a danger to the public. Psychological support services were also completely cut for all refugee claimants, despite the fact that many refugees are deeply traumatized by their experiences.

The cuts were almost universally condemned by health care professional groups and religious communities. Litigation was commenced by the Canadian Association of Refugee Lawyers in an attempt to have the government’s cuts declared unconstitutional.

Yesterday, the Ontario government demonstrated its commitment to refugees by announcing that it would step in to reinstate access to health care for refugee claimants. Effective January 1st, 2014, the Ontario government will provide refugee claimants with primary care and urgent hospital services, as well as medication.

This decision is significant given that Ontario is home to more than half of Canada’s refugee claimants.  It is also smart government policy because it goes beyond compassion: studies have shown that cuts to refugee health care programs simply shift such costs to other provincial programs, such as social support services and community health care centres. Refugees with serious health conditions end up in hospital emergency departments which are more expensive than preventative measures. Ontario should be applauded for this move.


Canada’s struggles for skills

A new study by recruiting firm Hays PLC has reported that Canada is facing a severe shortage of skilled workers, and that the recent moves by the government to tighten up the process for hiring foreign workers has made the situation worse.

Among 30 countries ranked in order of the severity of the skilled worker shortage, Canada ranked ninth, behind Russia, Portugal and Mexico.

This ranking is not surprising. For the last several years, Canada has restricted the Federal Skilled Worker category, imposing criteria which drastically limited the number of skilled professionals eligible for Canadian permanent residence. This year, it re-calibrated the points required to qualify, placing a much higher emphasis on English language skills and youth.

On the temporary worker front, the government made the process of hiring foreign workers much more rigorous in response to allegations of outsourcing by a major Canadian bank.

These changes have made it difficult for industries facing a boom – the report names the construction industry as an example – to find the workers it needs. Engineers and mobile technology programmers are named as occupations which are required by employers.

The recent changes to the Labour Market Opinion process, which is required to hire foreign workers, significantly lengthen the time required to fill a labour shortage. In the meantime, Canadian businesses will struggle to meet demands for goods and services.

In the recent budget speech, a new system was promised to select immigrants based upon immediate employer needs. No time should be wasted in bringing this system forward, but Canada’s long term economic needs, which have been well served by the skilled worker category, should not be neglected.

Calling all Czechs!

The National Post reported on Wednesday that Canada will be lifting the requirement for visas for citizens of the Czech Republic. This is a welcome move, as it benefits Czech citizens who wish to come to Canada to visit family, study, or explore opportunities to find work. There has been no indication of a similar change in policy with respect to Mexico, whose citizens have faced visa requirements since 2009.

Silence is golden

It has been almost three months since Chris Alexander assumed the immigration portfolio from Jason Kenney, and there has not been one announcement of a major reform or change in law or policy.

This contrasts starkly with Jason Kenney’s term as Minister of Citizenship and Immigration, when barely a week passed without a major and surprising change.

Many of these changes were controversial, such as the two year pause on parent and grandparent sponsorships, the pause on skilled worker applications, the drastic narrowing of the criteria for skilled workers, and refugee reforms which divide refugees into different categories and deny appeals and health care to refugees from certain countries.

Supporters of these changes point out that Canada’s immigration system was in desperate need of an overhaul, and that backlogs had ballooned to the point of discouraging potential applicants. It remains to be seen whether Kenney’s reforms will actually result in more efficient processing of applications.

However, warnings from the Maytree Society among others have expressed concerns that the pace of change has led to a lack of policy coherence. As the Maytree Society stated in its report last year; “There has not been a concerted attempt to look at the interaction among [the changes] and the bigger picture. Much has been driven purely by the priority place on managing intake and reducing or eliminating backlogs… We have seen, for example, the confusion and policy incoherence that is created by the simultaneous existence of federal programs, Quebec programs, and 11 separate Provincial/Territorial Nominee Programs with up to 60 subcomponents, in a country where mobility rights mean that many immigrants will not stay in the province that selected them.”

Given these concerns and the unprecedented pace of reform in immigration law and policy, Minister Alexander’s hiatus – whether intentional or not – may be a welcome change. It may provide time to evaluate the impact of recent changes as a basis for determining future directions.

DOMA defeated

For many years, my legal practice has strangely benefited from a huge injustice for same sex couples in the United States. The Defense of Marriage Act, which prohibited the recognition of same sex relationships at the federal level, meant that Americans in a same sex relationship with non-Americans did not have the right to sponsor their partners or spouses. As a result of this injustice, many couples decided to move to Canada, which fully recognized their relationship.

At a professional level, it was rewarding to assist these couples to preserve their relationships in the face of such blatant discrimination. At a personal level, it was inspiring to witness first hand that love could triumph over national borders, and unfair laws.

It is with some mixed feelings that I learned today about the U.S. Supreme Court’s decision that DOMA is unconstitutional. I will definitely miss being able to assist same sex couples maintain their relationship, and to provide them safe haven in Canada. On the other hand, I share the relief and sense of gratification of everyone who worked so hard to defeat this law, including my friend and colleague U.S. immigration lawyer Lavi Soloway, and advocacy groups like Immigration Equality and Out4Immigration. Their determination and hard work  in fighting for justice has paid off. It is an encouraging reminder to all of us to continue to fight for our rights to equality.

Bingo Prizes may be Seized

Bingo Prizes may be Seized

In efforts to ensure enforcement of child support and spousal support awards, the Ontario Lottery and Gaming Corporation (OLG) has added Bingo winnings over $1,000 to its list of lottery or gaming wins that may be seized to satisfy outstanding support obligations. The Family Responsibility Office (FRO) is responsible in Ontario for tabulating and enforcing child support and spousal support orders and support terms found in Separation Agreements if filed with the Court.

All winners of a prize in the amount of $1,000 or more will need to provide their contact information such as their name, address and social insurance number to the establishment running the Bingo. This information will be sent to the FRO so that it can check its records and ensure that there are no outstanding child support or spousal support arrears owing.

If it is found that the winner owes child support or spousal support arrears, the prize will not be paid to the winner. Instead, the prize money will be deposited with the OLG. The funds will be released to the winner only after he or she has satisfied the FRO requirements, which in most situations will mean paying the child support or spousal support arrears owing.

For winners who think that they can refuse to provide their information to the Bingo hall and so avoid this process, note that the Bingo hall has no flexibility in this area. All winners of $1,000 or more will have their winnings deposited into the OLG account until further information is received from FRO informing the OLG that it has been satisfied.

For more information on this issue, visit: http://www.mcss.gov.on.ca/en/mcss/programs/familyResponsibility/Enforcement/lottery.aspx

Parents and grandparents, revisited

We finally have news regarding the government’s intentions for parents and grandparents waiting to be sponsored by their relatives in Canada. Last Friday, at the annual general meeting of the Canadian Bar Association’s Immigration Section, the Minister issued a news release describing the government’s plans. It was well timed, during a session on family class sponsorship.

The government announced a temporary pause on the sponsorship of parents and grandparents in November, 2011. The intention was to tackle a growing backlog in this category, leading to processing times of three to five years.

To lessen the harsh impact of the temporary pause, the government introduced a “supervisa” program, allowing parents and grandparents potential access to a 10 year multiple entry visa, as long as they are healthy, as long as their relatives in Canada could show sufficient income to support them, and as long as a visa officer believed that they would not overstay their status.   The government reports that over 15000 supervisas have been issued since the launch of the program.

The government’s announcement last week made the supervisa program permanent. Further, at the expected re-launch of the program on January 2, 2014, the following changes are expected to be made:

- lengthening the duration of the sponsorship undertaking from 10 years to 20 years (the government believes there is a high degree of sponsorship default after 10 years);

- increasing the amount of income to be shown by a sponsor from the current Low Income Cut Off to the current Low Income Cut Off amount plus 30%;

- lengthening the period required for the sponsor to demonstrate sufficient income from the year prior to the application, to three years prior to the application;

- limiting the type of evidence of income to be submitted by a sponsor to Canada Revenue Agency documents.

These measures will greatly reduce the number of eligible parents and grandparents to be sponsored to Canada, and change the nature of the types of Canadian families who are eligible to sponsor. This is the stated intention of the government,  which states in its news release “The PGP (parent and grandparent) program generates costs to Canadian taxpayers as PGPs are unlikely to engage in paid employment or to become financially independent when in Canada.”

Parents and grandparents do, however, contribute in many economic and non-economic ways to Canada’s social and economic well being. They watch grandchildren, allowing the parents of children in two income households to work while avoiding high daycare costs. They also enrich the lives of Canadian families culturally and linguistically, instilling a sense of history and culture into the Canadian relatives with whom they reunite.

As with many other sweeping changes made to Canada’s immigration system made by this government, it is very much uncertain whether Canada’s long term future will be served by changes to the sponsorship criteria for parents and grandparents.

The foreign worker balancing act

The Canadian government is poised to introduce changes to the system that allows Canadian employers to hire foreign workers. In reaction to the political controversy that arose when a Canadian bank was discovered hiring foreign workers after laying off Canadian workers, the government promised to tighten up the system.

The system as it stands now is one in which a Canadian business can request permission from the Canadian government to hire a foreign worker through the request for a Labour Market Opinion (LMO). An LMO is an opinion by Human Resources and Skills Development Canada that the employment of a foreign worker would have a positive or neutral impact on the Canadian labour market.  In other words, the worker would not adversely impact the employment prospects of a Canadian worker.

Typically, employers requesting an LMO must generally advertise an employment vacancy in the local labour market at labour market wages and working conditions and demonstrate that none of the applicants were qualified to do the position. The employer must then demonstrate that the foreign worker is an appropriate fit for the position.

In the last ten years, the number of foreign workers in Canada has more than tripled, and with Canada’s current unemployment rate at more than 7%, concerns have arisen that these workers are filling positions which could be filled by Canadians.  And with the restrictions imposed by the government on permanent immigration by skilled professionals, many have wondered whether Canada is moving toward a “guest worker” system.

Therefore, the considerations to be balanced by the government in changing the system for hiring foreign workers are many: how to ensure that Canadians are not prejudiced in their job hunt, how to ensure that wages are not being depressed, how to ensure that Canadian businesses are not hurt by the lack of appropriate skilled workers, and how to ensure that the rights of foreign workers are protected.

While the Canadian public is rightly concerned about the protection of employment opportunities for Canadians, the fact remains that there are some positions that Canadians will not do, based upon inconvenient hours, long work days or other unpalatable conditions. There are also some jobs which skilled foreign workers are better placed to do, and will lead to more prosperous Canadian businesses.

In the end, a balanced approach, which has been the approach of our best immigration polices, will be most effective.  This approach will not make it too onerous for Canadian businesses with legitimate labour needs to find the right workers, and will at the same time ensure that Canadians get the first opportunities to be hired or trained.