SETTLEMENT

More compassion to come

On Dec.10, 2015, the Supreme Court of Canada issued its most signi cant immigration judgment in almost 20 years. Its decision in Kanthasamy v. Canada (Citizenship and Immigration) will likely result in visa o cers assessing applications for Canadian permanent residence on humanitarian and compassionate (H&C) grounds in a much more holistic and equitable manner than previously.

H&C applications

People who would not normally be eligible to become permanent residents in Canada may apply to immigrate on H&C grounds. A typical H&C applicant is someone who does not meet the requirements of any of Canada’s economic or family reuni cation programs. Or it is an applicant who does qualify for more traditional immigration programs, but who is inadmissible to Canada for other reasons.

When visa o cers review H&C applications, they analyze several factors, including the person’s establishment in Canada, their family ties to Canada, the best interests of any children involved, as well as what could happen to them if their H&C applications are not granted.

Prior to Kanthasamy, the criterion for an H&C application was whether applicants would su er “unusual and undeserved or disproportionate hardship” if their applications were refused. Indeed, Citizenship and Immigration Canada’s guidelines on numerous occasions explicitly instructed o cers that the assessment of an H&C application was a determination of whether the applicant met this test. “Unusual and undeserved hardship” was de ned as hardship that was not anticipated or addressed by immigration legislation, and was “beyond the person’s control.” “Disproportionate hardship” was de ned as an “unreasonable impact on the applicant due to their personal circumstances.”

Supreme Court of Canada expands humanitarian and compassionate grounds, arguably the most signi cant immigration decision in nearly 20 years

A new interpretation

In Kanthasamy, the Supreme Court of Canada found that while immigration o cers should treat the “unusual and undeserved or disproportionate hardship” factors described above as descriptive, they do not create three new thresholds for relief that must each be met by applicants. Rather, o cers are to analyze applications holistically to simply determine whether there are su cient H&C considerations to warrant approval.

To be clear, that does not mean that any positive H&C factors will automatically lead to an approval. e Supreme Court of Canada explicitly rea rmed that hardship alone will not generally be su cient to warrant relief on H&C grounds, nor are H&C applications meant to duplicate refugee proceedings.

Rather, Kanthasamy means that o cers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts before them, and not just evaluate them against overly rigid and strict criteria.

As well, the Supreme Court clari ed that immigration of cers considering the hardship of potential discrimination against a person returning to their country of origin should not be too narrow in how they assess the discrimination. H&C consideration may be warranted where discrimination could manifest itself in isolated or systemic incidents, and an applicant only needs to show that he or she would likely be a ected by adverse conditions back home. As well, the Supreme Court reiterated that where an applicant is a member of a group that is typically discriminated against back home, it is reasonable to infer that the applicant will face discrimination and hardship, and positive H&C consideration may be warranted.

Finally, in Kanthasamy the Supreme Court of Canada further reminded visa o cers that when considering the best interests of children, it is insu cient for o cers to simply state that the children’s interests were taken into account. Rather, the interests of children must be “well identi ed and de ned” and examined “with a great deal of attention” in light of all the circumstances. e test for of cers when assessing children is not hardship, but rather what their best interests are.

Going forward

Kanthasamy re-a rms that visa o cers have the discretion to holistically determine whether there are su cient H&C grounds to warrant approval, and that the Immigration department cannot bind them to an overly rigid standard. It is vague, however, on how o cers are to actually assess H&C applications. e dissenting Supreme Court justices in Kanthasamy cautioned that the decision appears to have watered down the stringency of the H&C assessment, and that equitable relief might now be granted in cases that simply arouse strong feelings of sympathy in visa o cers. Although it is too early to determine the accuracy of their prediction, applicants submitting H&C applications should be grateful that their applications are being assessed postKanthasamy in a much more holistic manner than they may otherwise have been.

Steven Meurrens is an immigration lawyer with Larlee Rosenberg in Vancouver. Contact him at 604-681-9887, by email at steven.meurrens@larlee.com or visit his blog at smeurrens.com.

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DEAR FAIZAL

Prescription to spice up neglected marriage

Dear Faizal: My husband and I have been married for 10 years. In the fi rst couple of years, we were madly in love and shared everything with each other as we settled into Canada. But, for the past few years, we have been arguing over the littlest of things and are becoming progressively disconnected from each other. We go to work, come home, have dinner and go to bed — all this without any sex, might I add. It seems like we are losing each other. My hope for Valentine’s Day is to save my marriage by reconnecting and spicing things up. Could you offer a few strategies to help? — From disconnected wife

Dear Disconnected: After some time together, many couples feel that their relationship is not as close or passionate. Some may not feel as appreciated by their spouse or may even feel neglected. Most times, resentment builds, and couples begin to criticize even the smallest things. What leads married people into this situation of marital discord is a loss of intimacy.

It is imperative that you and your husband openly, honestly and nonjudgmentally communicate your emotional and sexual needs with each other. Just like your employment schedule, you must schedule at least 15 minutes each day to talk to your husband, without any disruptions (this means no kids around and cell phones turned o ), about your day. Instead of coming home and immediately sifting through the mail, I recommend both of you give each other a 30-second hug (or, if you feel like it, a 30-second kiss), and then sit down over a drink and share both the happy incidents and disappointments of your day. is type of greeting would set the stage for the rest of the evening.

Encourage (not demand) your husband to make dinner with you. Preparing food does not have to be work; instead, make it a fun or even sensual experience.

A more physical type of communication could take place after dinner (and after the kids go to bed). Take a warm, candle-lit bath together or give each other a relaxing massage.

Before going to sleep, share with your husband one thing about him that you appreciate about him or your marriage. He can have a turn after you nish. is type of communication, which I call emotional foreplay, sets the stage for later emotional, psychological and sexual intimacies. en, one of the most intimate things couples can do is to fall asleep while holding or spooning each other.

Once reignited, intimacy will help maintain the passion and commitment in your marriage.

Ltitikfifiti fiti titifik fifi fitifi fifififififififi fifififififififi fififi fififififififififi fififififififififififi titititi tiAN HtiLP!

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*titititi tififitififififi titititititi fifi fi fifififififififi fififififififiti fififififititifi fififitififififi tititififiti titifififi titi fitifi tifififififitifififi tififififi tififitififififi titi tifififififi tititititititi Faizal Sahukhan, PhD, is a couples counsellor and the author of Dating the Ethnic Man: Strategies for Success. Visit him at multiculturalromance.com or call him at 604899-0102.

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