Immigration Law - ONCJ

The applicant sought spousal support following the breakdown of her marriage to the respondent.

The applicant had immigrated to Canada from Mexico, was sponsored by the respondent, and they married in 2012.

After the applicant's refugee claim was denied, she returned to Mexico and waited approximately 3.5 years for her sponsorship to be processed.

Upon her return to Canada in 2015, the parties cohabited for nine months before separating.

The applicant sought $1,500 per month for three years, citing the respondent's sponsorship undertaking and her need for retraining.

The respondent argued the applicant was not entitled to support and should be self-sufficient.

The court found the applicant entitled to spousal support on both a non-compensatory needs basis and a contractual basis arising from the sponsorship agreement.

The court awarded $1,000 per month for 18 months (December 1, 2018 to June 30, 2020), declining to impute income to the applicant and declining to award retroactive support due to the potential social assistance debt repayment obligation.

The accused pleaded guilty to attempting to break and enter a dwelling house with intent to commit an indictable offence and theft under five thousand dollars.

The Crown sought a global sentence of twelve months less pre-sentence detention credited at 1.5 to 1, followed by three years probation.

The defence sought time served plus two years probation, emphasizing the accused's difficult personal history as a Kurdish Convention refugee and the minimal nature of the offences.

The court imposed a sentence of time served plus one day in gaol on the attempt charge, with fifteen days concurrent on the theft charge, followed by three years concurrent probation.

The court considered collateral consequences under immigration law but found no risk of deportation given the accused's protected status as a Convention refugee.

The defendant was convicted of sexual assault, sexual interference, and invitation to sexual touching involving a 15-year-old passenger in his Uber vehicle.

The Crown sought 12 months jail; the defence sought the mandatory minimum of 90 days.

The court imposed 11.5 months jail structured as two consecutive sentences of 173 days each (plus 3 days presentence custody) to remain below the 6-month threshold that would trigger mandatory deportation consequences under immigration law.

The court emphasized denunciation and deterrence as primary sentencing objectives for offences involving children, and noted the defendant's lack of remorse, empathy, and insight into his conduct as aggravating factors.

The defendant pleaded guilty to common assault after initially facing a robbery charge.

The assault occurred when the defendant, as part of a group, physically searched a 17-year-old victim on a public street, including forcibly pulling down the victim's pants.

The defendant was bound by two probation orders at the time of the offence.

The Crown sought a suspended sentence, while the defence sought a conditional discharge, citing potential immigration consequences.

The court imposed a suspended sentence with 30 months probation, finding that while immigration consequences were relevant, they were minor and did not warrant a discharge given the seriousness of the offence, the defendant's prior record, and the need for denunciation and specific deterrence.

The offender was convicted after trial of possessing a weapon (knife) for the purpose of committing a criminal offence and knowingly uttering a threat to cause bodily harm.

He subsequently pled guilty to failing to appear in court and breaching a recognizance condition.

The central sentencing issue was whether to impose a conditional discharge or a suspended sentence, given the offender's status as a permanent resident and the potential immigration consequences of a conviction.

The court considered the Supreme Court's decision in R. v. Pham regarding the relevance of collateral immigration consequences to sentencing decisions and concluded that while such consequences may be considered, they cannot dominate the sentencing process or result in inappropriate sentences.

The court imposed suspended sentences with probation rather than a discharge, finding that the serious nature of the offences and the offender's disregard for the justice system precluded a discharge despite significant personal mitigating circumstances.

The Crown sought to introduce an affidavit from a Program Support Officer of Immigration, Refugees, and Citizenship Canada as evidence in a trial for an alleged violation of section 52(1) of the Immigration and Refugee Protection Act.

The defendant objected to the admissibility of the affidavit on hearsay grounds and for lack of proper notice under section 28 of the Canada Evidence Act.

The court found that while the affidavit itself was admissible under section 26(2) of the Canada Evidence Act, certain portions containing copies of government records (exhibits A through D) were inadmissible due to failure to comply with section 28 notice requirements.

The offender pled guilty to seven counts of counselling misrepresentation contrary to section 126 of the Immigration and Refugee Protection Act.

Over a five-year period, the offender, an unlicensed immigration consultant, exploited vulnerable would-be immigrants seeking entry through the Live-In Caregiver Program by providing false employment contracts and Labour Market Opinions, charging substantial fees while delivering no legitimate services.

The offender threatened victims who complained.

The court imposed a sentence of 12 months imprisonment (11 months after pre-trial custody credit), three years probation with conditions including a prohibition on providing immigration advice, no contact orders with victims, and restitution orders totalling $23,500.

The applicant mother brought a motion seeking temporary orders for child support, spousal support, and a temporary restraining order against the respondent father.

The parties were first cousins married in Pakistan in 2005.

The father moved to Canada shortly after the marriage while the mother remained in Pakistan with their child born in 2007.

The father sponsored the mother and child to Canada in February 2015, and they separated in June 2015.

The key issues were the father's income for support purposes, the mother's entitlement to temporary spousal support, the amount of such support, the start date, and whether a restraining order should be granted.

The court found the father's evidence regarding his income unreliable and imputed income at $53,300 per annum based on employment records and rental income.

The court granted temporary child support of $482 per month and temporary spousal support of $1,150 per month, both retroactive to June 15, 2015.

The court also granted a temporary restraining order based on findings of domestic violence and harassment.

The defendant pleaded guilty to three counts of fraud over $5,000 and one count of unauthorized use of a credit card.

Between March and August 2013, she defrauded her employer, a Shopper's Drug Mart, of $110,484.28 USD by facilitating fraudulent transactions using American Express credit cards while exploiting a security flaw in the company's system.

The employer suffered devastating consequences, losing his franchise agreement and substantial income.

The court imposed a custodial sentence of 5½ months followed by three years of probation, taking into account the defendant's status as a permanent resident and the collateral immigration consequences of a sentence exceeding six months.

A custody and access trial involving a child born to unmarried parents who subsequently married and separated.

The applicant mother, facing deportation to St. Vincent due to illegal immigration status, sought sole custody and permission to remove the child from Canada.

The respondent father sought sole or joint custody with a non-removal order.

The court found the mother's evidence lacked credibility due to her illegal status and inconsistent testimony.

The court ordered joint custody with primary residence to the mother while she remains in Canada, with extensive access to the father.

If deported, sole custody transfers to the father.

The court imposed a non-removal order preventing the mother from taking the child out of Ontario without court order, while permitting the father to travel freely with the child.

The defendants were charged with aiding and abetting others to enter Canada without appearing for examination before a Canada Border Services Officer, contrary to section 124(1)(a) of the Immigration and Refugee Protection Act.

The defendants brought a constitutional challenge under section 35(1) of the Constitution Act, 1982 and sections 15, 7, and 2(d) of the Canadian Charter of Rights and Freedoms.

The defendants claimed an aboriginal right to mobility within Mohawk territory at Akwesasne for family and community purposes without reporting at the border, and alleged that the reporting requirements were discriminatory and violated their liberty and freedom of association.

The court dismissed all constitutional challenges and found the defendants guilty.

Motions to change a joint custody order where the mother faces deportation to St. Vincent.

The mother sought sole custody and permission to take the child with her; the father sought sole custody with the child remaining in Canada.

The court found a material change in circumstances warranting review.

While joint custody continued during the mother's residence in Canada, the court ordered that upon deportation, sole custody would transfer to the father in Canada, with specified access for the mother including two months summer access and alternate winter holidays in St. Vincent.

Child support obligations were terminated upon deportation, with arrears to be repaid at an increased rate.

The Windsor-Essex Children's Aid Society sought leave to withdraw a child protection application.

The mother had been hospitalized for acute psychiatric distress related to imminent deportation to the Netherlands, where she feared returning to an abusive father.

The Society argued the children were no longer in need of protection following the mother's discharge from hospital.

The respondent mother and counsel for the children opposed the withdrawal, citing ongoing risks including the mother's mental health, the threat of deportation, and the presence of the abusive father in the Netherlands.

The court dismissed the motion, finding it premature to withdraw the application given the unresolved risks and the intersection of child protection and immigration law.

The accused was charged with two offences under the Immigration and Refugee Protection Act: (1) returning to Canada without authorization after a removal order was enforced, contrary to section 52(1); and (2) failing to appear for examination at a port of entry, contrary to section 18(1).

The accused had been issued an Exclusion Order on June 18, 2012, and deported to the United States.

He subsequently re-entered Canada in September 2012 without presenting himself for examination at a port of entry.

The Crown proved both charges beyond a reasonable doubt.

The accused admitted knowledge of the Exclusion Order and his inadmissibility but chose to return to Canada anyway.

The court found guilt on both counts.

The applicant father sought temporary custody of two young children and permission to relocate them to France.

The respondent mother opposed the transfer and sought return of the children to her primary care.

The court found that the father's concerns about the mother's mental health deterioration during the summer were credible and well-grounded, supported by observations from multiple independent sources including the Children's Aid Society.

The court determined that the father could provide greater stability for the children at that time and granted him temporary custody with supervised access for the mother.

The court also granted permission for the father to relocate with the children to France, finding that Canada was not the appropriate jurisdiction for long-term parenting arrangements given immigration constraints, language considerations, and the availability of family support in France.

A Hague Convention application for the return of a child to Latvia, brought by the father against the mother who fled with the child to Canada.

The mother and child were recognized as Convention refugees based on domestic violence perpetrated by the father.

The court found that while the removal was wrongful under the Hague Convention, the exceptions under Articles 13(b) and 20 applied due to the grave risk of harm to the child and mother if returned, the principle of non-refoulement, and the inability of the Latvian justice system to protect victims of domestic violence.

The application was dismissed and interim custody was granted to the mother.

A family law application concerning custody, access, and child support for a five-year-old child whose mother is subject to a deportation order to Jamaica.

The applicant father initially sought sole custody and a non-removal order but modified his position during trial.

The respondent mother sought sole custody with reasonable access for the father.

The court granted sole custody to the mother, reasonable and generous access to the father whether in Canada or Jamaica, child support of $400 per month, and dispensed with the father's consent for travel documentation and international travel with the child.

The court terminated the temporary non-removal order, finding no genuine dispute between the parties on this issue.

The offender pleaded guilty to sexual assault after failing to disclose that he was likely infected with HSV-2 (genital herpes) before engaging in unprotected sexual intercourse with the complainant.

The complainant subsequently contracted the virus and suffered significant physical and emotional harm.

The court imposed a conditional discharge with one year of probation, including 80 hours of community service and a ten-year SOIRA order, rather than a custodial sentence or conviction.

The decision represents a "test case" on sentencing for sexual transmission of herpes through non-disclosure, with the court emphasizing the novel nature of the offence and the disproportionate immigration consequences that would follow a conviction.

The accused, a pastor of a Spanish Pentecostal Church in London, Ontario, was charged with withholding material facts during border entry and attempting to aid and abet an undocumented individual to contravene immigration requirements.

The accused claimed duress, alleging that the hidden passenger threatened harm to his family in El Salvador if he did not smuggle him into Canada.

The court found the accused guilty on both counts, holding that the alleged threat of harm to the accused's parents lacked the temporal immediacy required for the duress defence and that the threat was too contingent and remote to constitute immediate harm.

The court also found the accused's account of events improbable and incredible.

A custody application brought by the mother against the father involving their child born in 2011, with the complication that the mother faced deportation to Hong Kong on April 30, 2012.

The father cross-claimed for custody and child support or, alternatively, specified access.

The court found that the father had engaged in domestic violence, confinement, assault, and threats against the mother, and demonstrated poor parenting practices.

The mother was granted sole custody of the child.

The father was granted supervised access twice per week for two hours per visit, which would terminate upon the mother's deportation.

The non-removal order was terminated as there was no evidence that either parent intended to voluntarily remove the child from the jurisdiction.