Law Times

February 12, 2018

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Law Times • February 12, 2018 Page 3 Legal clinic challenges part of Income Tax Act BY ALEX ROBINSON Law Times A legal clinic is challeng- ing the constitution- ality of part of the In- come Tax Act that bars refugee claimants from receiv- ing Canada child benefits. The Metro Toronto Chinese and Southeast Asian Legal Clin- ic has filed Notices of Constitu- tional Question with the Cana- da Revenue Agency for clients, disputing the constitutional va- lidity of s. 122.6 of the act. The section holds that indi- viduals are eligible for the CCB if their spouse is a Canadian citi- zen, if they are in a humanitari- an designated class, a permanent resident, a temporary resident or a protected person, within the meaning of the Immigration and Refugee Protection Act. The legal clinic argues this imposes a blanket exclusion against refugee claimants and those with a precarious immi- gration status. Some of those excluded have been individuals who have worked and paid income tax in Canada. "Something needs to be done because of the disproportionate impact on women, but in par- ticular racialized women and women who have precarious status," says the clinic's director, Avvy Go. The challenge may have im- portant impacts for the refugee and immigration bar, say law- yers. Over the years, the clinic has seen clients who have been denied the CCB or who were receiving the benefit only to abruptly receive a letter saying they were ineligible and had to refund the benefits, says Go. Each time clients have come up against this issue, it has been be- cause of the eligibility require- ment under the ITA. Go says that in recent years there have been more and more cases of clients being given the benefit only to be told a year or two later that they have to return the funds to the CRA. Aris Daghighian, a lawyer with Green and Spiegel LLP, says the challenge is a worthy argu- ment that needs to be addressed. Even if the court does not find in the clinic's favour, Daghighian says, the challenge will be bring- ing attention to this gap in the provisions. He says that just bringing the challenge will shine a light on the issue and could push the government to make legislative changes to the system. "One way or another, I think this challenge is needed, and even if the court is unwilling to make a Charter violation finding, I think we might end up with the same result," says Daghighian, who is not involved with the challenge. Go says, for example, that one of the clinic's clients arrived with her husband in 2014 and applied for a refugee claim, which was initially denied by the Refugee Protection Division. After the client appealed that decision, the Federal Court sent her file back to the division for a new hearing. The client and her husband were granted work permits after submitting their refugee claims, but her husband was injured at work and granted benefits from the Workplace Safety and In- surance Board. The client has not been able to work full time either, due to her child-care re- sponsibilities. The husband has not been able to return to work since his injury, and the family is also receiving assistance from the Ontario Disability Support Pro- gram, but they have been unable to secure the CCB to help with child-care expenses. They applied for the CCB in 2016, but they were told by the CRA that they were not eligible because they did not meet the citizenship requirements. The client then asked the CRA to reconsider, and the agency's ap- peals division is set to hear her objection. The clinic has filed NCQs for two different clients so far, as well as six notices of objection to the exclusion. The clinic is also working with other clinics on the issue that might look to in- tervene in the case if and when it makes its way to court. The clinic has argued that s. 122.6 of the ITA discriminates against its clients on the basis of race, gender and immigration status. The clinic's notice filed with the CRA said the vast majority of CCB recipients are women, as mothers continue to be the primary caregivers in most Ca- nadian families, and that most applicants with precarious im- migration status come from ra- cialized communities. "By denying CCB to women with precarious immigration status, s. 122.6 of the ITA thus has an adverse impact on racial- ized women as it denies them an important financial benefit that they and their children need to survive," the notice said. "The denial of such a benefit perpetuates the socio-economic disadvantages faced by women from racialized communities, especially those with precarious immigration status, while rein- forcing their social isolation and stigmatization." Go says this policy also vio- lates the rights of these individu- als' children, many of whom are Canadian-born. She says the denial is arbitrary, as it does not take into account the children's best interests, the family's ties to Canada or their financial needs. And because of their parents' immigration status, these Ca- nadian children are not receiv- ing the equal benefits that other Canadian-born children are get- ting, Go says. "That further highlights the unfairness of it all," she says. The clinic has said that the exclusion also violates ss. 7 and 15 of the Charter. This is because depriving these individuals of the benefit they need "results in harm to the physical and psy- chological well-being of both the applicant and the child," the notice said. Go adds that it is not just refugee claimants who are af- fected by this exclusion, as it also applies to applicants waiting for the determination of a per- manent residency application, temporary foreign workers and other individuals with precari- ous immigration status. She says the exclusion affects some of the most vulnerable people in Canada, while benefits are provided to tourists and visi- tors who have lived in the coun- try for 18 months but may not have substantial ties to Canada and might not need the same level of financial support. "I'm very puzzled by this policy," Go says. "Why is it that we are allowing tourists — al- though they have lived here for 18 months — to claim this kind of benefit, but we're not allowing refugee claimants or people with precarious status — who are ac- tually living here and many of them [are] working in Canada and [are] clearly more in need of the benefits — to claim this kind of benefit?" She says the term "temporary resident" — which is used in the section — is not defined in the Immigration and Refugee Pro- tection Act and should be inter- preted more broadly. The CRA did not provide comment before deadline. Go says if the CRA's inter- nal appeals process confirms the original decision, the clinic will appeal to Tax Court, bring- ing the constitutional fight over this section of the ITA into the courts. LT NEWS Avvy Go says a section of the federal Income Tax Act is unconstitutional. Untitled-2 1 2018-02-06 9:51 AM 561-391-3344 f 561-948-4713 d 561-910-7861 Florida Probate and Tax Planning Services STEVEN Z. GARELLEK Florida Bar Board Certified in International Law Member of the Florida, Ontario, and New York Bar 200 East Palmetto Park Road, Suite 103, Boca Raton, FL 33432 ntitled-2 1 2017-09-13 1:45 PM

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