SERGIO R. KARAS QUOTED IN NATIONAL POST STORY ON QUARENTENE ACT REQUIREMENTS

I am quoted in today's National Post story commenting  on a Federal Court decision concerning the 14-day self-isolation requirement, Federal COurt on Quarantine Act Exemptions

SERGIO R. KARAS QUOTED IN NATIONAL POST STORY ON IMMIGRATION AND MENTAL ILLNESS

I was quoted in today/s National Post on a very unusual case involving deportation  and mental illness.

http://news.nationalpost.com/news/canada/bipolar-man-on-verge-of-deportation-to-a-country-he-left-as-a-baby-57-years-ag

December 20, 2015

Bipolar man on verge of deportation to a country he left as a baby - 57 years ago

By Tom Blackwell 

Len Van Heest is now planning a last-ditch application to the new Immigration minister, John McCallum, for a permanent stay of deportation, said his...

A 57-year-old man who immigrated to Canada as a baby is on the verge of being deported from the only country he's known because of a string of crimes triggered by severe mental illness.

Len Van Heest - diagnosed with bipolar disorder in British Columbia at age 16 - is just the latest, dramatic example of a growing trend, say some immigration lawyers.

Increasing numbers of adult immigrants who came here as small children and developed psychiatric or neurological conditions now face removal after the previous government toughened the law on non-citizen criminals, they say.

The Canada Border Services Agency detained Len Van Heest last Wednesday and plans to send him to the Netherlands, though he doesn't speak Dutch and has not lived there since he was in diapers.

We're just dumping someone in another country

The Vancouver Island man neglected to become a Canadian citizen, so falls under legislation that lets the government expel immigrants who commit serious crimes.

A Federal Court judge has just upheld the denial of Van Heest's application to remain on humanitarian and compassionate grounds - and rejected his claim that deportation to the Netherlands would be cruel and unusual punishment.

"I don't think it's fair at all," said Peter Golden, his Victoria-based lawyer. "I don't think we can treat someone who has these vulnerabilities just like we treat everybody else ...We're just dumping someone in another country."

Golden said he is worried that his client will end up on the streets in Holland, without his required drug treatment. "In all probability, it's a death sentence for him."

Van Heest is now planning a last-ditch application to the new Immigration minister, John McCallum, for a permanent stay of deportation, said his lawyer.

But a spokesman for the Canada Border Services Agency said the decision to remove someone from Canada "is not taken lightly," and that various avenues of appeal are open to those facing deportation.

Van Heest was twice given a reprieve from removal, only to relapse into criminal activity, noted another immigration lawyer.

"I think in this particular case, as the court notes, there were just too many strikes against this fellow," said Sergio Karas, vice-chair of the Ontario Bar Association's immigration section. What's more, "in the Netherlands, you're going to get perhaps even better (mental-health) support than here."

There were just too many strikes against this fellow

Still, the United Nations' human-rights committee criticized Canada earlier this year for another, similar decision: the 2011 deportation of a 52-year-old Jamaican man who had immigrated as a teenager and committed crimes related to his schizophrenia.

Since the Conservatives tightened the law in 2013, lawyers are seeing more such removal cases, "where people came to Canada as children and developed either mental illness or brain injury due to an accident," Golden said.

The deportation rule now kicks in with a sentence of six months or more - down from two years - and there is no longer a right to appeal to the Immigration Appeal Division.

"Across the board, immigration lawyers would say they have been seeing more of these cases," echoed Jennifer Stone, a lawyer at Neighbourhood Legal Services in Toronto. "This fact scenario is one that I see somewhat commonly, and it's a real problem."

But Karas said the six-month rule makes sense, since under the old law many judges were imposing sentences of just below two years solely to avoid deportation.

According to the Federal Court ruling earlier this month, Van Heest arrived in Canada at eight months old and was a teenager when diagnosed with bipolar - where altered brain function triggers occasionally severe and disabling mood swings.

The disease causes manic episodes where he becomes agitated and hostile, harming himself and others, said Justice George Locke. He has a lengthy criminal record - usually racked up when he goes off his treatment - with about 32 police reports filed just in 2012.

Van Heest was first ordered removed from Canada in 2008, but twice won stays on deportation, and each time breached the conditions by getting in more trouble with the law, said the decision. Most recently, he was charged with uttering a threat and possession of a dangerous weapon - which Golden said was a kitchen knife.

He applied for reinstatement of his permanent residence on humanitarian and compassionate grounds, but an immigration officer rejected the request.

Golden says his client is tall, burly and bearded - making him look somewhat threatening - but he has never done serious harm to anyone.

Justice Locke - who could only review whether the immigration officer's decision was reasonable, not retry the case - cited evidence from a Dutch psychiatrist that as a citizen of Holland, Van Heest would receive treatment there, and that most Dutch people speak at least some English.

National Post

SERGIO R. KARAS QUOTED IN TODAY'S NATIONAL POST STORY ABOUT AUTISTIC CHILD

I wa quoted in today's National Post front page story on medical inadmissibility, concerning the case of an autistic child who would require public expenditures. The child's parents application for permanent residence was rejected due to the child's condition.

http://news.nationalpost.com/2015/01/12/judge-upholds-decision-denying-entry-to-south-african-doctor-because-her-autistic-child-would-cost-taxpayers-too-much/

January 12, 2015

South African doctor's immigration bid rejected because her autistic child would cost taxpayers too much

By Tom Blackwell 

Of the one million or so permanent-resident applications filed every year, 0.2% - or about 20,000 - are rejected as medically inadmissible

A judge has upheld an immigration officer's decision to deny entry to a South African doctor because her autistic child would cost taxpayers too much money, highlighting a little-known law that puts a pricetag on the medical conditions of would-be new Canadians.

Thousands of potential immigrants are rejected every year because of the rule, and numerous appeals - involving people with everything from HIV to arthritis - have reached the courts.

At the heart of the cases is a 13-year-old section of the Immigration and Refugee Protection Act that deems people "medically inadmissible" if their condition would trigger excessive medical or social costs here.

"It continues to impact real people, often in surprising cases," the author of medicallyinadmissible.com, a blog critical of the policy, wrote recently. The anonymous U.S. citizen, who describes himself as HIV-positive, says the legislation should be rescinded.

"Maybe because it violates the various UN agreements to which Canada is signatory, or because it violates the Charter rights," he charges. "Whatever the reason, it will be nice to see the morally repugnant scheme struck down."

One leading Canadian immigration lawyer, however, says the law serves an important purpose.

"The act wisely provides a mechanism to ensure aspiring immigrants don't unduly burden the system, because that wouldn't be fair," said Sergio Karas, a Toronto-based lawyer. "The system is already over-taxed. All you need to do is walk into any emergency room and you see what the problem is. There are people in the corridors for hours on end."

Of the one million or so permanent-resident applications filed every year, 0.2% - or about 20,000 - are rejected as medically inadmissible, Bill Brown, a Citizenship and Immigration Canada spokesman, said.

While those cases include people judged a threat to public health or safety, most stem from the excessive-cost question, said Mario Bellissimo, a Toronto immigration lawyer.

In the latest case, Asmeeta Burra, a physician in South Africa, and her architect husband had applied to be permanent residents under the skilled-worker category, planning to settle in British Columbia.

The fact her son is autistic triggered a medical assessment, which concluded that the cost of special education for the boy would total about $16,000 a year. That well exceeds the annually adjusted average social and medical cost for Canadians, currently about $6,300.

The couple responded that they would cover the cost of any special assistance their son would need, and noted that in South Africa he goes to a mainstream school, and requires only sporadic help from a private agency.

Applicants are allowed to submit a plan to mitigate such costs. Immigration officials rejected Dr. Burra's submission, though, saying there was no proof of the couple's likely income and that, regardless, the services their son would need are provided by publicly funded institutions.

She asked the Federal Court to overturn that decision, but in a recent ruling, Justice Cecil Strickland upheld the Citizenship and Immigration handling of the case, saying that the plan the parents filed lacked specifics and failed to clearly counter the excessive cost issue.

Dr. Burra could not be reached for comment.

Mr. Bellissimo, her lawyer, said the case underlines a problem in this area and other parts of the immigration system. The government encourages people to make applications without legal help - as his clients did in the early stages of their case - but the requirements are often difficult for lay people to understand, he said.

Still, Mr. Bellisimo stopped short of criticizing the law itself, noting that some immigrants are successful in arguing that they can mitigate the costs of medical or social services. That is usually done by promising to pay for private treatment or education.

"I think for the most part, it strikes a fair balance," he said.

National Post

SERGIO KARAS APPEARS ON CHINESE TELEVISION (CCTV)

I appeared on CCTV, China's largest TV channel, on an the question of US citizens in Canada relinquishing their US citizenship for tax reasons.

http://www.youtube.com/watch?v=L2YaIOtJddA

FEDERAL COURT LOOKING TO EXPEDITE DECISIONS, CUT HEARING TIME

This is inevitable: a flood of litigants with questionable claims avail themselves of Judaical review remedies, assisted by taxpayer-funded Legal Aid plans and at no cost to themselves. Is it any wonder that everyone seeks Judaical review? The Court's potential solutions are sensible, but I would argue that the following should be considered too: change costs awards to make it easier for the court to penalize frivolous litigants or those with flimsy cases; impose higher filing fees to fund and retire the deficit; and impose a higher bar in leave applications.

Swamped Federal Court seeking relief from pressure

By Cristin Schmitz, Ottawa

The Lawyers Weekly
Vol. 32, No. 39 (February 22, 2013)

 

The Federal Court is thinking of offering litigants a new option of a quicker hearing followed by a speedy oral decision, says its chief justice Paul Crampton.

In a wide-ranging exclusive interview about what lies ahead for the national trial court in 2013, Chief Justice Crampton revealed an "out-of-the-box" idea the court believes holds potential to improve service, while helping to contend with deep budget cuts and a burgeoning backlog.

He wants to discuss with the bar the idea of giving litigants the option of an expedited sessions-court-style procedure. Instead of people waiting to be scheduled for the usual two-hour oral hearing for judicial review and a written decision weeks or months later, litigants could elect to follow a speedier route with a half-hour or 45-minute hearing. "And the understanding would be that they would get an oral decision, or a short written endorsement?--?which is what the [provincial] superior courts and the provincial courts tend to do a lot of," Chief Justice Crampton said.

In addition to offering litigants a faster result, judges sitting in sessions courts could decide five or more cases a day, instead of hearing just two, and write their judgments later.

That route might appeal to people seeking reviews of decisions denying them permanent residence visas, for example, he suggested. "They hopefully will avail themselves of it, and hopefully it will alleviate the backlog, at least to some degree."

That fast-growing backlog is a major challenge for the 55-year-old chief justice, a one-time leading competition lawyer. His enthusiasm is evident as he speaks about the court whose leadership he assumed a little over a year ago.

Last year, the court "came within a whisker" of 13,000 filings?--?a record?--?up from 9,800 in 2011 and 7,700 in 2010, he said. Most of the growth was in non-refugee applications; for example, permanent residence visa applications from outside the country.

Meanwhile, the court's 30 judges, five supernumeraries, and six prothonotaries cranked out more decisions than ever, and did so without expanding the time between when an application is filed and judgment.

"But because we're not keeping pace with the more significant increase in filings, the overall inventory is increasing," Chief Justice Crampton said. "So, for example, on the refugee side, the inventory [backlog] increased by 25 per cent."

The expanding workload, caused partly by recent federal immigration and refugee amendments, is taking a toll on the court's itinerant judges, who travel two and sometimes three weeks a month, he said. "I don't think I can ask people to work any harder than they are currently working, without running a greater risk of absenteeism, of people falling sick."

The court is working on innovative solutions to cut its backlog while providing speedier and more efficient service, but additional judges and prothonotaries must be part of the equation, he said.

Ottawa is expected to appoint judges to two new posts on the court in the coming weeks. "If I see the backlog continuing to climb, or I see that we're not able to dig out, I'll be trying to make the case for more appointments."

An urgent request for two more prothonotaries remains unfulfilled, however.

"There's six of them, but the number and complexity of matters has been increasing over the years and they are treading water," Chief Justice Crampton said. "They are extremely busy, and so we do need more resources on that front."

The heavy workload of the prothonotaries is aggravated by the refusal of successive governments over the past 10 years to improve their compensation, pensions and other benefits, which takes its toll on morale, he said.

"The court would very much like to see progress on these issues. I think, in fairness, you have people who are working extremely hard serving their country to the best of their ability?--?above and beyond the call of duty, I would say, in the case of each and every one of them?--?and I'm not seeing much appetite to address issues that are very important to them[...]so I'm hopeful that we'll see some progress on these issues and that we can get beyond this once and for all, because it is just extremely disruptive."

In the current climate of austerity in Ottawa, the Courts Administration Service (CAS), which provides registry services to the Federal and three other courts, also faces resource challenges.

It has a roughly $3-million deficit in this fiscal year that is likely to balloon in the coming year.

If additional funds are not forthcoming, the court will have to postpone critical initiatives to modernize its technology and improve its security "and our ability to meet our mandate is going to be compromised," the chief justice said.

Three successive rounds of budget cuts "are cutting into the bone," he warned. There are not enough registry officers and other staff. "We've got about 1,000 cases that[...]are down in the registry, either waiting to come up, or to be processed by the registry."

To conserve scarce resources, the court plans to implement measures to clamp down on the 1 to 2 per cent of litigants whose frivolous and vexatious cases consume "an enormous amount" of judicial energy?--?"the equivalent of one, or two, or maybe even three judges' time," the chief justice said.

"There are people who have had their seventh, and eighth, and ninth day, in court here, while there's other people in line waiting to have their first day, and it's just not right."

He noted the judges began work last year on a five-year strategic plan that will culminate this fall in specified "goals and measurables."

They agreed they should focus on improving people's access to justice, modernizing the court, and improving how the court delivers its services?--?which are still largely paper-based.

In the wake of a study by Prof. Sean Rehaag indicating that individual Federal Court judges grant leave to appeal to failed refugee applicants at widely different rates, the judges also discussed their various approaches last year, the chief justice said.

"We recognize there is this issue," Chief Justice Crampton said. "I think the unspoken hope is that when we next see the data [for 2013 and beyond] there will be a reduced variation."

TAXES AND RESIDENCY IN THE SPOTLIGHT IN INTERESTING CASE

These cases may be more common than people think. it is important to get the appropriate tax advice from qualified professionals when organizing a move to or from Canada.


Hamel v. The Queen


Denis Hamel, Appellant v. Her Majesty the Queen, Respondent

2012 DTC 1004

Neutral Citation: 2011 TCC 357
Court File No. 2010-1756(IT)G (General Procedure)
Tax Court of Canada
August 24, 2011

Federal Income Tax -- Residence -- Whether taxpayer severed all residential ties with Canada when moving from Canada to Quatar to take up employment under three-year work permit issued by Qatar -- Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 2(1), 250(3) -- Interpretation Bulletin IT-221R3.

The taxpayer left Canada in mid-January 2007 to take up employment in Qatar under a work permit issued by Qatar, which was valid until August 13, 2010. The Minister assessed the taxpayer for 2007 on the assumption that he was a resident of Canada for 2007 and the following years. The taxpayer appealed to the Tax Court of Canada.

Held: The taxpayer's appeal was allowed.

________________________________________
Official English translation provided by the Court. Original reasons in French reported at 2011 DTC 1284.

[OFFICIAL ENGLISH TRANSLATION]

1 This is an appeal from an assessment based on the assumption that the appellant was a resident of Canada during the 2007 taxation year and subsequent years. The issue was presented in the Reply to the Notice of Appeal as follows:



• [TRANSLATION]



• Did the appellant cease to be a resident of Canada on January 13, 2007?

2 To issue and confirm the assessment presently under appeal, the respondent relied on the following presumptions of fact:



• [TRANSLATION]



• (a)

The appellant left Canada in January 2007 to work in Qatar under a contract of employment with an American company (Rust Resources Inc.) (no reply)

• (b)

The appellant did not obtain a resident's permit in Qatar. (denied)

• (c)

The appellant obtained a work permit in Qatar, valid until August 13, 2010. (admitted)

• (d)

After his work permit expired, the appellant had to leave Qatar. (admitted)

• (e)

In December 2007, the appellant obtained a driver's licence in Qatar, valid until December 11, 2012. (admitted)

• (f)

The appellant kept a bank account, a credit card and investments (RRSP and others) in Canada. (admitted)

• (g)

The appellant held a Canadian passport. (admitted)

• (h)

The appellant has two sons of full age who remained in Canada and whom he visited in 2007 and 2008. (admitted)

• (i)

In 2007, the appellant returned to Canada four times for around two weeks each time. (admitted)

• (j)

In 2008, the appellant came back to Canada three times. (admitted)

• (k)

The appellant filed his income tax return for the 2007 taxation year as a resident of Canada. (admitted)

• (l)

At no time relevant to the case, did the appellant become a resident of a country other than Canada. (denied)

3 The facts listed in these paragraphs were all admitted, except for paragraph (a), to which the appellant did not reply, and paragraphs (b) and (l), which were denied.

4 The evidence consisted mainly of the appellant's testimony. His son also testified.

5 The appellant gave a lengthy testimony and provided many details about his career, his family, one of his sons' many health problems, and issues with his wife, which led to a divorce in early 2008.

6 Because of the appellant's skills, he had a very good reputation, earned by working for companies in the paper, electricity and nuclear energy industries. These companies handled very dangerous products, and operated laboratories that manufactured peroxide, among other things.

7 I find, on the preponderance of evidence, that the appellant's departure from Canada was not spontaneous, impulsive or motivated only by the lure of profit.

8 The appellant had a very good reputation, and it is easy to say that he had no problem finding good, well-paying jobs in Canada. Indeed, he was sought out. He often lived far from his family, in particular in Montreal when his family lived in the Trois-Rivières region; moreover, he also had a very long stay in China, and had always dreamed of leaving Canada for good.

9 He hesitated mainly because of the health problems of one of his sons. At one point, his son told him he had to think of himself and live his dream with no regrets.

10 The appellant stated that after his son had encouraged him to fulfil his dream of leaving Canada, there was no longer anything holding him back. He commenced a process that would lead to a definitive break; he gave his share of the residence to his wife, whom he divorced in early 2008.

11 He disposed of his property without exception, other than two accounts in a caisse populaire, which he used to carry out his transactions. His driver's licence was suspended and he did not renew it; he did this many months before leaving for Qatar.

12 He returned for short stays in Canada only to see his two sons one of whom had serious health problems his mother and a few friends.

13 During these short stays, the appellant rented a car, stayed at a hotel and split his time between Montréal, Trois-Rivières and Québec.

14 Through the years, this and other courts have heard many cases in which the issue was the country or place of residence of a physical person. In spite of a rich case law, there is still no magic formula that leads to a definitive answer.

15 Many decisions have, however, explained the appropriate reasoning to come to a conclusion on the issue.

16 I feel it is useful to reproduce certain excerpts from these decisions; Thomson v. M.N.R., [2 DTC 812] [1946] S.C.R. 209 is a key decision on the determination of the place of residence of a person who has left Canada. [FOOTNOTE 1]





[FOOTNOTE 1]



See Paul Lefebvre's article, 'Le pouvoir d'imposition du Canada: la résidence et l'arrêt Thomson 60 ans plus tard', (2006) 54: 3 Revue fiscale canadienne 781-801.



17 In Guo v. Canada, [2004 DTC 6728] 2004 FCA 390 , the Federal Court of Appeal stated, at paragraph 2, that '[t] he determination of a person's residence is a complex question which requires the judge to weigh many factors.' And, ' [i]t is clear that residence is not simply a matter of a person's status under the Immigration Act, R.S.C. 1985, c. I-2, though a person's status may be some evidence of residence.'

18 In Thomson , supra, we learn that the issue is determining the place the taxpayer regularly, normally or customarily lives in his usual mode of life. The degree to which a person in mind and fact settles into a place and maintains and centralizes his ordinary mode of living, including social relations, interests and conveniences must be examined. Rand J. made the following comments at pages 224 and 225:



• The gradation of degrees of time, object, intention, continuity and other relevant circumstances, shows, I think, that in common parlance 'residing' is not a term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it a precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one case it is satisfied by certain elements, in another by others, some common, some new.



• The expression 'ordinarily resident' carries a restricted signification, and although the first impression seems to be that of preponderance in time, the decisions on the English Act reject that view. It is held to mean residence in the course of the customary mode of life of the per-con concerned, and it is contrasted with special or occasional or casual residence. The general mode of life is, therefore, relevant to a question of its application.



• For the purposes of income tax legislation, it must be assumed that every person has at all times a residence. It is not necessary to this that he should have a home or a particular place of abode or even a shelter. He may sleep in' the open. It is important only to ascertain the spatial bounds within which he spends his life or to which his ordered or customary living is related. Ordinary residence can best be appreciated by considering its antithesis, occasional or casual or deviatory residence. The latter would seem clearly to be not only temporary in time and exceptional in circumstance, but also accompanied by a sense of transitoriness and of return.



• But in the different situations of so-called 'permanent residence', 'temporary residence', 'ordinary residence', 'principal residence' and the like, the adjectives do not affect the fact that there is in all cases residence; and that quality is chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question. It may be limited in time from the outset, or it may be indefinite, or so far as it is thought of, unlimited. On the lower level, the expressions involving residence should be distinguished, as I think they are in ordinary speech, from the field of 'stay' or 'visit'.

Reeder factors

19 In The Queen v. Reeder, [75 DTC 5160] [1975] C.T.C. 256 (F.C.T.D.) the Federal Court set out the factors the Court must consider when determining a person's residence. In Gaudreau v. The Queen, [2005 DTC 66] 2004 TCC 840 , affirmed in 2005 FCA 388, Lamarre J. restated these factors:



• [24] Accordingly, as suggested by counsel for the appellant, the question is to determine where, during the period at issue, the appellant, in his settled routine of life, regularly, normally or customarily lived. One must examine the degree to which the appellant in mind and fact settled into, maintained or centralized his ordinary mode of living, with its accessories in social relations, interests and conveniences, at or in the place in question.



• [25] This is mainly a question of fact. In The Queen v. Reeder, 75 DTC 5160 (F.C.T.D.), referred to by the appellant, the court listed some factors considered to be material in determining the question of fiscal residence, at page 5163:



• ... While the list does not purport to be exhaustive, material factors include:



• a. past and present habits of life;



• b.

regularity and length of visits in the jurisdiction asserting residence;



• c. ties within that jurisdiction;



• d. ties elsewhere;



• e.

permanence or otherwise of purposes of stay abroad.



• The matter of ties within the jurisdiction asserting residence and elsewhere runs the gamut of an individual's connections and commitments: property and investment, employment, family, business, cultural and social are examples, again not purporting to be exhaustive. Not all factors will necessarily be material to every case. They must be considered in the light of the basic premises that everyone must have a fiscal residence somewhere and that it is quite possible for an individual to be simultaneously resident in more than one place for tax purposes.

20 Lamarre J. then cited Rip J. in Snow v. The Queen, [2004 DTC 2784] 2004 TCC 381 :



• [30] As Rip J. said in his recent decision in Snow v. Canada, [2004] T.C.J. No. 267 (Q.L.), at paragraph 18:



• [18] A person may be resident of more than one country for tax purposes. The nature of a person's life and the frequency he or she comes to Canada are important matters to consider in determining one's residence. The words 'ordinarily resident' in s.s. 250(3) refer to the place where, in the person's settled routine of life, the person normally or customarily lives. The intention of a taxpayer, while obviously relevant in determining the 'settled routine' of a taxpayer's life, is not determinative. A person's temporary absence from Canada does not necessarily lead to a loss of Canadian residence if a family household remains in Canada, or possibly even if close personal and business ties are maintained in Canada.



• ...



• [32] It is clear from the employment agreement that the appellant was given an assignment in Egypt for which he was even paid an expatriation premium for the duration thereof. The agreement provided for air transportation back and forth between the appellant's home location and his work location. The appellant kept all his assets in Canada and before leaving Canada made all the necessary arrangements to have someone look after those assets. His purpose in accepting the contract in Egypt was not to give up his ties with Canada but mainly to earn a living. The appellant agreed to go there on a contractual basis and did not sever his attachments to, or his links with, Canada. The appellant did not in mind and fact abandon his general mode of life in Canada. As a matter of fact, the house in Timmins was available at all times as a place in which he could customarily live. To use the words of Rand J. in the Thomson case, he and his wife maintained their ordinary mode of living, with its accessories in social relations, interests and conveniences, in Canada. If I may distinguish the present case from the Boston case, the duration of the contract here was a lot shorter and the appellant did not demonstrate that he became active in the community in which he lived in Egypt. He was only there to do his work. Finally, the Boston case was considered but not followed in the McFadyen case, which was affirmed by the Federal Court of Appeal.

21 In Mahmood v. The Queen, [2009 DTC 1071] 2009 TCC 89 , the Court concluded that a resident of Guyana who came to Canada regularly but was not a permanent resident was a non-resident, even though he seemed to operate a business in Canada.

22 In Filipek v. The Queen, [2008 DTC 4139] 2008 TCC 351 , Miller J. summarized the significant residence concepts at paragraph 2:



• [2] Case law has provided some considerable guidance as to what the Court is to consider in determining residence. The Income Tax Act itself stipulates in subsection 250(3) that a person resident in Canada includes a person who was at the relevant time ordinarily resident in Canada. There are many judicial pronouncements on the meaning of ordinarily resident (see for example Thomson v. Minister of National Revenue, Her Majesty the Queen v. Reeder, and Reed v. The Minister of National Revenue). What do these cases tell us?



• (i)

Every person has a residence.

• (ii)

A person may have more than one residence and can be simultaneously resident in more than one place for tax purposes.

• (iii)

Residence is determined by ascertaining the spatial bounds within which an individual spends his life or where in the settled routine of his life he regularly, normally and continuously lives.

• (iv)

Factors to consider in determining residency are connections in Canada regarding property, investments, employment, family, business, cultural, social - a non-exhaustive list.

Interpretation Bulletin IT-221R3

Severing ties with the country

23 The courts have established that residents of Canada must generally sever their ties with the country to become non-residents. Further to the former Canada Revenue Agency policy, a taxpayer who leaves Canada must intend on staying abroad for a period of at least two years to be considered a non-resident. [FOOTNOTE 2] In Peel v. Canada, [1995] 2 C.T.C. 2888 (TCC) , the Tax Court of Canada held that the two-year rule was not sound legally. Since 2002, this 'rule' no longer appears in Bulletin IT-221R3. [FOOTNOTE 3]





[FOOTNOTE 2]



See former Bulletin IT-221R2, Determination of an Individual's Residence Status, at paragraph 4.





[FOOTNOTE 3]



Interpretation Bulletin IT-221R3, Determination of an Individual's Residence Status (2002), is reproduced in Schedule A.



Significant and secondary ties

24 The new Bulletin IT-221R3 (2002) states that the following are 'significant' in determining residence status:



• (a)

dwelling place (or places),

• (b)

spouse or common-law partner,

• (c)

dependants.

But the following are secondary ties:



• (a)

personal property in Canada (such as furniture, clothing, automobiles and recreational vehicles),

• (b)

social ties with Canada (such as memberships in Canadian recreational and religious organizations),

• (c)

economic ties with Canada (such as employment, bank accounts, RRSPs, credit cards and securities accounts),

• (d)

landed immigrant status or work permits in Canada,

• (e)

provincial medical insurance coverage,

• (f)

a Canadian driver's licence,

• (g)

a vehicle registered in Canada,

• (h)

a seasonal dwelling place or leased dwelling place in Canada,

• (i)

a Canadian passport, and

• (j)

memberships in a Canadian union or professional organization.

25 The other residential ties, generally of 'limited importance' except when taken together with others, include a Canadian mailing address, a safety deposit box, business cards, a phone number and subscriptions to Canadian newspapers and magazines.

Recent cases

26 In Perlman v. The Queen, [2011 DTC 1045] 2010 TCC 658 , Boyle J. held that if a taxpayer did not sever his ties with Canada, studying abroad, even for 16 years, was of no relevance.

27 In Snow , supra, Rip J. found that the residential ties were not severed because:



• [19] In the case at bar the taxpayer took an assignment for a two-year period in Belize. She may not have believed that she would return to Canada once the assignment terminated. She maintained a home in Vancouver where her son and his family resided. All of her banking and other financial interests were in Canada. Her pension cheques were paid to her Canadian bank account. Her mail continued to be sent to her in Vancouver. Simply, she did not trust the Belize banking or postal systems and had no intention to reside on any permanent basis in Belize. She felt the comfort of having these matters remain in Canada.



• [20] In Belize Mrs. Snow lived in a 'quite modest' apartment that included two bedrooms and 'basic furnishings'. She remarked that she 'could not live in Belize' for an extended time.

28 In Revah v. The Queen, [2004 DTC 2735] 2004 TCC 312 , Rip J. concluded that the ties had been sufficiently severed for the taxpayer to become a non-resident:



• [28] In this case, the appellant was resident in the United States and spent time in Montreal only to visit his family once or twice a year. In his testimony, however, the appellant did not indicate the duration of his visits to Canada in the 1993and 1994 taxation years. The appellant did not have a residence in Canada. In effect, the appellant cut the great majority of his ties with Canada. He has two bank accounts in Canada and they contain the sums he accumulated as pension and RRSP benefits. He made charitable donations to organizations located in Canada. The fact that the appellant had several links with Canada did not make the appellant a Canadian resident indefinitely. The links that Mr. Revah had with the United States were even more substantial than those he had with Canada. He usually lived in the United States, which is where most of his property was located. In 1992, the appellant intended to leave Canada permanently and he actually left this country.



• [29] The appellant was not therefore resident in Canada during the 1993 and 1994 taxation years. The appeal is allowed with costs.

29 In Barton v. The Queen, [2007 DTC 712] 2007 TCC 222 , Lamarre J. concluded that the taxpayer still had family, social relations, interests and conveniences in Canada:



• [20] I am of the view that the appellant maintained his ordinary mode of living, with his family and social relations, interests and conveniences, in Canada. His children and his wife were all living in Canada; he had a home available to him in Canada; and he came back very often, despite the long drive, in order to live, as far as possible, a normal family life. His habits of life continued to be centered on Canada. As soon as he found an opportunity to work in Canada, he accepted it, although this meant leaving a secure employment in the USA. Apart from his retirement plan in the USA, most of his savings were in Canada. He never gave up his Canadian health card or his Canadian driver's licence. He maintained close personal and economic ties with Canada throughout. I therefore find that the appellant never ceased to reside in Canada during the period at issue. The same conclusion by this Court in a similar situation was accepted by the Federal Court of Appeal in Gaudreau v. The Queen , 2005 FCA 388.

30 In Hauser v. The Queen, [2005 DTC 1151] 2005 TCC 492 , affirmed 2006 FCA 216, Rip J. concluded that an Air Canada pilot did not truly 'divorce' from Canada after he moved to the Bahamas, for the following reasons stated at paragraph 58:



• Canada was a magnet that attracted the Hausers. After they set up residence in the Bahamas both of Mr. and Mrs. Hauser, and particularly Mr. Hauser, continued to have a presence in Canada. Mr. Hauser spent over a third of a year in Canada in each year. Air Canada required Mr. Hauser to be in Canada to fly airplanes; he reported to work at Pearson Airport and other airports in Canada. Most of his flights left from and returned to Pearson; much of his training was at Pearson. Pearson Airport was part of the routine of life. Mr. Hauser's presence in Canada during the years in appeal was not occasional, casual, deviatory, intermittent or transitory. He was in Canada in great part because he had to be, to earn a living.

31 In Yoon v. The Queen, [2005 DTC 1109] 2005 TCC 366 , O'Connor J. found that the taxpayer had closer ties to Korea, even though her husband still lived in Canada. The tie-breaker rules in the tax convention between Canada and Korea state that in case of doubt as to a person's 'centre of vital interests,' that person is deemed to be a resident of the country in which he stays more frequently. O'Connor J. found that:



• [41] The evidence shows that Mrs. Yoon spent more time in Korea than in Canada in 2001. Therefore, her habitual abode was in Korea and not Canada. If her centre of vital interests cannot be determined, then this tie-breaker definitely provides that Mrs. Yoon was a resident of Korea in 2001.

32 In Laurin v. The Queen, [2007 DTC 236] 2006 TCC 634 , affirmed 2008 FCA 58, Chief Justice Bowman (as he was then) concluded that the taxpayer, an Air Canada pilot, became a resident of the Turks and Caicos Islands. He stated:



• [32] ...For one thing, he did [sever his residential ties with Canada]. He broke up with his girlfriend, he got rid of his house, his car, his licence and his health insurance. When he came to Canada he stayed with friends but it was at their sufferance. Moreover, to say that one has not severed residential ties with a country is not tantamount to saying that one is resident there. Residual friendships and employment connections do not create residency...

33 In Johnson v. The Queen, [2007 DTC 1022] 2007 TCC 288 , [FOOTNOTE 4] Paris J. concluded that the appellant had not severed his residential ties to Canada when he went to work in the United Arab Emirates with his wife under a three-month contract because he maintained his ties to Canada, in particular his houses, which he rented, his RRSPs, his driver's licence, his credit cards and his investments composed of Canadian shares. He stated:

[FOOTNOTE 4] This decision is reproduced in Schedule B.



• [42] Although the Appellant stated that he intended to work in the UAE for at least 5 years, the assignment was only set up for a three year term and was ended at the earliest possible date, after two years and three months. It is also material that the assignment provided that at the conclusion of the assignment Mitel was required to bring the Appellant and his spouse back to Canada, and was obligated to make best efforts to find a position for the Appellant in its Canadian operations.



• [43] Throughout the time the Appellant and his spouse were in the UAE, they retained ownership their house on Parkmount Crescent, which had been their family home for 20 years. Even after accepting the UAE assignment, the Appellant and his spouse purchased a second house in Ottawa, which they designated as their principal residence.



• ...



• [47] Further ties that the Appellant maintained with Canada in this case included his RRSPs, his Ontario driver's license some Canadian credit cards and investments in Canadian stocks.



• [48] While I agree with counsel for the appellant that the Appellant's employment by a Canadian employer is not sufficient in itself to create residency, the terms and conditions of that employment are relevant. In this case, Mitel was obliged to return the Appellant and his spouse to Canada at the end of the assignment and was also obliged to try to find an equivalent position for the Appellant within Mitel's Canadian operations.



• [49] I agree as well that the Appellant had no substantial ties with any location other than Canada and the UAE in 2001 and 2002, and that the Appellant's ties to the UAE were only temporary in nature. The properties in which the Appellant resided in the UAE were rented under one year leases, his vehicle was leased, his work assignment was for 36 months and he chose not to bring the bulk of his belongings with him. Although the Appellant said that he had joined certain clubs in the UAE, there was no evidence to suggest that the Appellant had paid any permanent membership fees to join these organisations



• [50] I agree with the Respondent that the Appellant's ties to the UAE were similar in nature to those established by the taxpayer in Gaudreau v. The Queen in Egypt, which were described by Lamarre, J. as ties undertaken during the term of the taxpayer's absence which were necessary to permit him and his wife to enjoy an acceptable and expected lifestyle while in Egypt and abandoned on his return to Canada. As in Gaudreau, the Appellant's ties to the UAE were abandoned completely upon his return to Canada.



• [51] The Appellant's ties to Canada were also similar in nature and extent to those maintained by the taxpayer in the case of McFadyen v. The Queen, 2000 DTC 2473 during three years the taxpayer lived in Japan. In McFadyen, the Court said:



• [103] I have concluded that the Appellant's ties with Canada during the three-year period were significant.



• [104] [I]n my view of the evidence, the Appellant can be considered to have accompanied his spouse on a temporary, overseas posting. He returned to Canada on three occasions during his spouse's assignment to Japan. He maintained with his spouse two joint bank accounts in Canada, one was used for the mortgage in connection with one of their properties and the other was used for everything else including another mortgage. He owned two houses in Canada, one of which was later occupied as his home on his return to Canada after giving two months notice. He maintained at his own expense during the years in issue his professional membership in the Association of Professional Engineers in Ontario. The transitory nature of his posting in Japan is reflected by the storage of items of furniture, which were large and bulky, and appliances in Canada, the retaining of a safety deposit box and the maintaining of a registered retirement savings plan, a credit card, and a current Ontario driver's license. These ties were largely economical but in part personal.



• [105] The evidence supports the contention that the Appellant left Canada for Japan with the intention that he may not return and I accept his evidence that he made significant efforts not to return. However, the Appellant maintained the Canadian connections with Canada in case he did return. He did in fact return and resumed his ties to Canada.



• [52] As in the case before me, neither taxpayer in Gaudreau and McFadyen, returned to Canada frequently in the years in issue yet both were held to be ordinarily resident in Canada. As well the taxpayers in both cases were away from Canada over 3 years, longer than the Appellant in this case, and both cases, the finding that the taxpayers were ordinarily resident in Canada in the years they were absent from Canada was upheld by the Federal Court of Appeal.

34 In Mullen v. The Queen, [2008 DTC 3892] 2008 TCC 294 , Sheridan J. concluded that, since the taxpayer had retained a house that was in his son's name, a bank account, and his Canadian medical insurance coverage, he did not sufficiently sever his residential ties. She noted that 'ending one's residency in Canada is no simple thing':



• [17] From these decisions it can be seen that ending one's residency in Canada is no simple thing. Like the unsuccessful taxpayers in McFadyen or Johnson, the Appellant also divested himself of his principal residence and vehicles; he intended to remain permanently employed outside of Canada; he made efforts to realize that intention; he organized his health insurance to have suitable coverage outside of Ontario; with the exception of 1998, he made only infrequent trips to Canada. These efforts in themselves fall short of establishing that he had severed his ties to Canada. In my view, they are further weakened by the additional facts set out below.



• [18] On March 2, 1998, the Appellant's employment in China ceased. Retired or not, the fact is he did not obtain other employment in China or Thailand after that time. There was no foreign employment to diminish whatever links he may have had to Canada. He had bank accounts at various times in New York, Malaysia and Singapore. He never opened a bank account in Thailand, a deliberate choice based on his understanding of the attendant tax consequences. He also had a range of credit cards from various foreign banks. By contrast, no matter where he was in the world, he always maintained his Canadian bank account and his VISA credit card through the Royal Bank of Canada. I am not convinced by his assertion that this was just to take advantage of the 'points' attached to the card. His entitlement to drive outside of Canada hinged on his proof of a valid Ontario driver's licence. He used rented vehicles in Thailand whereas in Canada, he purchased a used car for his use. Although he ultimately divested himself of that car, by transferring it to the family's holding company he maintained access to it. Although he acquired additional private health insurance while abroad, he never cancelled his Ontario medical insurance. Having had private coverage does little to enhance the Appellant's position as even the most occasional traveller is likely to obtain additional health insurance while outside Canada. While in China and Thailand, he and his spouse had only personal effects with them; following the sale of his principal residence, all items of any significance to them were housed in the Belleville dwelling.

35 In Filipek , supra, Miller J. did not accept the Air Canada pilot's testimony and concluded that he did not cease being a resident of Canada for the following reasons, stated at paragraph 33:



• ...I find his routine of life, as an Air Canada pilot working out of Vancouver, was indeed centred in Vancouver. His banking, his time spent in the area, his ongoing relationship with his in-laws, his financial commitments to them and his own family, combined with his evasive, contradictory evidence of what he was really doing while in Vancouver for well over 100 days each year cause me to conclude that any settled way of life was primarily in Vancouver. I recognize he does not have his own home or physical residence in Canada, and while that is troubling, it is not fatal to a finding that he can still be ordinarily resident in Canada. If such a physical space is required, I have no difficulty concluding that he had ready access to his in-laws' home, and did, in fact, rely on that access.

36 In Song v. The Queen, No. 2008-733(IT)I, January 14, 2009 (TCC), affirmed 2009 FCA 278 [2009 DTC 5169] , application for leave to appeal dismissed, [2009] S.C.C.A. No. 492 (QL) (SCC), Paris J. found that the taxpayer's settled routine of life (namely her house, children, property and social ties) were in Japan, even though her husband lived in Canada.



• ... It is true that her husband remained in Canada after April 3rd, 2006, and that his settled routine of living was here. While this is a significant tie to Canada, it is outweighed, in my view, by the permanence of the appellant's ties to Japan during the period. She had a year-round residence, and her children attended school and daycare there. Almost all of her children and her own belongings were in Japan, her economic ties were almost exclusively with Japan, and her social connections were either in Japan or China.



• By contrast, she did not maintain a home for herself and her children in Canada. Her husband lived in a two-bedroom townhouse that he shared with roommates, who were asked to leave to enable the appellant and the children to stay with her husband when they visited. On all of the evidence I find that the appellant's visits to Canada do not amount to her customarily or normally living in Canada in 2006 and 2007. She spent less than 10 percent of her time in Canada, between April 2006 and September 2008, and cannot have been said to have established any significant connections of her own to Canada apart from her husband's presence here.



• I do not accept that the appellant had stronger ties with Canada than Japan during the period in issue. While it is true that the appellant planned to leave Japan and come to live permanently in Canada, this was not planned to occur until 2008. In the meantime, her day-to-day routine was centered in Japan, carrying through with a course of studies commenced in or about 2001, and caring for her three children. Her trips to Canada were intermittent visits, approximately equal in number and duration to her husband's trips to Japan in those years. This was not sufficient to establish a residence in Canada for her.

37 In Bensouilah v. The Queen, [2009 DTC 1327] 2009 TCC 440 , [FOOTNOTE 5] the appellant, a resident of Saudi Arabia and Canada, worked in Saudi Arabia while his family remained in Canada. He kept his house in Canada. Angers J. found that the ties had not been severed.





[FOOTNOTE 5]



This recent decision is reproduced in Schedule C and summarizes the principles established in the case law well.



38 In Denisov v. The Queen, [2010 DTC 1285] 2010 TCC 101 , Angers J. found that the appellant resided in Canada, not Russia, because he did not show that, for the purposes of Article 4 of the tax treaty between Canada and Russia, he was subject to full Russian taxation, because his wife, his house and personal property were in Canada.

39 In the present case, the evidence shows the tie with Canada was severed in January 2007. The evidence also showed that this break followed a lengthy period of reflection that started when the appellant first lived away from his family, when he worked in Montreal for around a year, and then during a long stay in China.

Analysis

40 The respondent's main argument is that every person must have a residence. Presuming the appellant had not resided in Qatar, she found that he must necessarily have resided in Canada.

41 After arriving at this conclusion, she relied on the following facts:

- The appellant came to Canada a few times.

- The appellant had two bank accounts in Canada, which he used to make all his payments, in particular for his credit cards, which were also issued in Canada.

- The appellant had some money in an RRSP.

- The appellant had no postal address in Qatar.

42 As for the other elements, for example, not having a driver's licence, not having property such as furniture, clothing, accommodations or vehicles, and not having a health insurance card, the respondent claims that they have no impact one way or the other.

43 The evidence clearly showed that the appellant's decision came after a lengthy period of reflection. It also showed that the appellant did not have any deep roots and did not hesitate to leave when his son, who was ill, let him go with no regrets.

44 His relationship with his wife was so tense that they tolerated one another only because of their shared concern about their son who was ill.

45 The appellant had a very good position. He did not want to run away from his responsibilies. He gave all his property and agreed to pay generous support payments before leaving; he has always complied with these commitments. He did not apply for a new driver's licence when his was suspended, even though the evidence showed it was important for him to be able to use a car if he wanted an international driver's license or even a driver's licence from the country in which he was living.

46 He specifically gave up his health card in 2008.

47 Regarding the beginning of the relevant period of the appeal, the beginning of 2007, it must be considered that a reasonable person would be careful. The appellant stated he could only get a work permit if a medical exam showed he was in good health, otherwise he had to return to his country of origin. The same can be said for the position, the duration of which generally depends on the employer, not the employee.

48 In other words, there is, normally, a reasonable delay before a permanent break.

49 This explains the time between the beginning of the period in question and the time the appellant gave up his health insurance.

50 As for the argument that the appellant never had a residence in Qatar, I do not believe it is cogent, because the appellant was employed and had a residence. The appellant's strong interest in staying in Qatar was shown by the intensive courses he took to get a driver's licence, when he could have travelled with coworkers, even though he had cancelled his Canadian driver's licence. When his employment ended in Qatar, the appellant returned to the country to see the people with whom he had worked and the work he had done.

51 In particular, in view of the following facts, I find that, on the preponderance of the evidence, the appellant's position must be accepted:

- The family context was special and conducive to a permanent departure.

- The appellant left after disposing of all his own property.

- The appellant waived his right to obtain a new driver's licence a few months before leaving Canada.

- The appellant returned to Canada a few times for very short stays that were for the purpose of visiting his two sons, his mother and friends.

- After leaving Qatar upon the expiry of his work contract, the appellant returned to meet friends and business acquaintances, thereby showing he had been happy there.

- The break came after a long period of thorough reflection.

- The appellant has set out all the facts showing his intention to sever ties with this country permanently.

- Although the relevance of prior facts is limited, they tend to confirm that the appellant severed his ties with Canada in mid-January 2007.

- Lastly, I am of the view that the cases I have cited support my conclusion, as does Interpretation Bulletin IT-221R3.

52 For these reasons, I conclude that the appellant ceased being a resident of Canada as of January 13, 2007; as a result, the appeal is allowed with costs in favour of the appellant.

US UNVEILS NORTHERN BORDER STRATEGY

The US Department of Homeland Security has unveiled a Canada- US strategy based on information sharing and analysis.

Homeland Security unveils new Canadian border strategy - Washington Times

ABA SPRING MEETING 2012

Sergio R. Karas chaired a panel at the recent American Bar Association Section of International law Spring Meeting in new York on the topic " For better or worse: international issues in marriage and divorce". Shown in the photos from right to left: Sergio R. Karas  (Canada), Jessica Sandberg ( Sweden), Graeme Kirk (UK), Gabrielle Buckley (USA), Jeremy Morley (USA) and David Starks (USA).

INDIA AND CANADA CLOSER TO TRADE, IMMIGRATION DEAL

India and Canada are said to be close to a trade deal. If that is correct, Canada should ensure that the integrity of its legal safeguards in immigration is enforced, given the high level of corruption in India. It may be a good time to secure India's cooperation to crack down on immigration scams that plague the Indian marketplace.

New deal eases free trade hurdles, work restrictions for India, Canada News National Post


New deal eases free trade hurdles, work restrictions for India, Canada

Postmedia News Nov 14, 2011 – 8:24 PM ET


By Lee Berthiaume

OTTAWA — Canada and India are on the verge of signing an agreement that would make it easier and more financially viable for thousands of Indian professionals to work here, and vice versa.

The agreement also eliminates a significant hurdle to free trade talks between the two countries, which the Conservative government has pledged to complete by 2013.

The Agreement on Social Security has been in negotiations since 2009 and has been considered a key ask for the Indian side as Canada tries to cozy up with the emerging economic power.

Cabinet last month gave Foreign Affairs Minister John Baird permission to sign the agreement on behalf of the government, according to an order-in-council published on Oct. 27.

Under the agreement, Indians working in Canada on temporary visas and making social security and pension contributions back to India would be exempt from making similar contributions here.

The same will be true for Canadians working in India, who will only pay the Canadian government.

An official with Citizenship and Immigration Canada said there were more than 14,000 Indians working in Canada at the end of 2010.

Indian deputy high commissioner to Canada Narinder Chauhan said she expects that number to increase once the social security agreement is signed.

“Lots of Indian professionals are coming into Canada,” she said, “and this agreement actually facilitates the movement of those professionals.”

The same will be true of Canadians working in India, she added.

“So we are just basically looking at an opportune moment to sign it,” she said.

Puneet Kohli, vice-president of the Indo-Canada Chamber of Commerce, said the agreement is very important for Indian companies who want to expand into Canada, and its successful conclusion would represent a big step in the Conservative government’s effort to bring the two countries closer together economically.

“It’s one of those important steps toward achieving that ultimate goal, which is a formal free trade agreement,” he said.

Canada and India recently completed a third round of free trade talks, with a fourth round set to be held in Delhi next month.

With $6.6 billion invested in Canada, Indian businesses have established a huge presence here in a variety of sectors, and Kohli said the social security agreement will likely lead to more Indian money pouring into the country.

But while Kohli acknowledged the agreement will result in more Indians coming to work in Canada, he dismissed suggestions they do so at the expense of Canadian job-seekers because of the associated influx of foreign investment.

“Theoretically I can see that concern,” he said. “But usually when they set up Canadian branches, it always means employment for Canadians. It’s an expansion into our economy. And I think that’s the most relevant factor to keep in mind.”

The Canadian economy lost 54,000 jobs in October, the largest single-month loss since February 2009. That pushed the unemployment rate up from 7.1 per cent to 7.3 per cent.

Postmedia News

IMMIGRATION CHANGES: QUOTED IN TODAY'S GLOBE AND MAIL EDITORIAL

I am quoted in today's Globe and Mail Editorial on immigration changes announced by the Mimister of Citizenship and Immigration, Jason Kenney.

Canada needs more caregivers, please - The Globe and Mail


November 6, 2011

Canada needs more caregivers, please

From Monday's Globe and Mail

The federal government's immigration reforms are largely sound, but why reduce the quota for live-in caregivers?

Immigration Minister Jason Kenney's plan to accept 10,000 more skilled workers into Canada next year is a sound one, and so is the government's overall target of 255,000 newcomers. Some other changes make less sense, and may be motivated by politics, more than economics.

Mr. Kenney acknowledged that the seven-year backlog to sponsor grandparents and parents has become unmanageable, and announced a two-year moratorium on applications. In the meantime, however, he will increase the quota by 10,000 over two years, to 25,000, and introduce a two-year multiple-entry visitor's visa for these family members.

To compensate, there will be a lower quota in other categories, including live-in caregivers. The target is 8,000-9,300, compared to 10,500-12,500 in the past two years.

Shouldn't it be the other way around? Why would a country with a declining fertility rate and the expected mass retirements of baby boomers want to recruit yet more older people? "The government has it backwards," says Sergio Karas, an immigration lawyer.

While family reunification is a goal for Canada's immigration program, family-class newcomers already make up two-thirds of all those accepted. Parents and grandparents are unlikely to create economic growth and will have more health needs.

Live-in caregivers are a category that should be expanded. They perform a key role in the labour market: caring for children in a country with no national daycare policy, and looking after the elderly. There is already a shortage of quality care for the aged, a problem that will grow in years to come with the country's demographic shift.

Canada's live-in caregiver program is unique in the world, and allows caregivers to apply for permanent residency after living with a family for two years, caring for either children or the aged. It has real weaknesses, such as long application-processing times, abusive employers and nannies being recruited for "fake" jobs, but the program itself remains sound.

The government would be wise to put resources into having it run more smoothly, and make sure that well-qualified caregivers are recruited to bona fide jobs and that their permanent residency applications are processed in a timely fashion. As the population ages, Canada will need more of them.

JOBS: CONSTRUCTION LEADS THE WAY ON WAGES, ECONOMIC GROWTH

Jobs in Canada: construction jobs are the ticket to middle class, trends support continuing growth. Immigration should reward those who have a proven track record and good training in trades such as plumbers, electricians, carpenters, and other skilled trades, particularly from the United States and the United Kingdom, with good language skills, certificates that can be easily verified, and previous employment that can be corroborated.

Canada’s hard hat economy a ticket to the middle class Economy News Financial Post

NAFTA: CANADA AND MEXICO, STRANGE BEDFELLOWS

Canada and NAFTA

No mariachis, please

Feb 12th 2009 | OTTAWA
From The Economist print edition


Some Canadians think they are more important than Mexicans

FOR the past 15 years Canada and Mexico have been joined with the United States in the three-way North American Free-Trade Agreement. But both still set much more store by their bilateral relationship with their superpower neighbour. This has led to sometimes farcical rivalry. To the joy of Canadian officials, Barack Obama is making his first, albeit brief, foreign visit as American president to Ottawa on February 19th. But Mexican officials whisper that their president, Felipe Calderón, got in first with a lunch with Mr Obama days before his inauguration.

More seriously, a growing number of Canadians, including politicians, trade negotiators and former ambassadors, have called for their government to turn its back on NAFTA and put all its efforts into improving bilateral ties with Washington. Canada was always a reluctant member of NAFTA, joining the talks mostly to safeguard gains made in a bilateral free-trade deal with the United States concluded five years earlier. Politicians chafe when Canada is lumped together with Mexico, as happened last year during Mr Obama’s campaign when he vowed to renegotiate NAFTA to protect Americans from weak environmental and labour standards. Even more woundingly, Janet Napolitano, the new secretary of homeland security, who is a former governor of Arizona, ordered a review of the northern border, saying that it presented a greater terrorist threat than the southern one.

Peter Harder, a former Canadian deputy foreign minister, argues that NAFTA holds back bilateral ties. “It is not in our interests to allow the speed of three to define the relationship of two,” says Mr Harder. “We have trilateralised for too long.” That view has been echoed by John Manley, a former Liberal deputy prime minister.

In fact many cross-border problems differ only in degree. That applies to the drug trade, gun smuggling, border security, the environment and illegal immigration. All three countries have a stake in the floundering car industry, which is organised on a North American basis. Canada and Mexico are the United States’ top two suppliers of imported energy, giving them both an interest in Mr Obama’s plans for energy and environmental measures.

Few Canadians speak up for enhancing ties with Mexico. But before leaving Ottawa this month, Emilio Goicoechea, Mexico’s ambassador, wrote a rebuttal urging Canada to stay the trilateral course. Trade between the two has grown fivefold since 1994 to $21 billion in 2007—though that is dwarfed by the United States’ two-way trade with Mexico, worth $349 billion, and with Canada ($566 billion). Some Canadian companies have invested in Mexico: Bombardier has factories making aircraft parts and trains, while Scotiabank is Mexico’s seventh-biggest bank.

In questioning NAFTA, Canadians do not just risk playing to protectionists in America’s Democratic Party. Their belief that on its own Canada would get more attention than Mexico also looks misplaced. Canada’s economy may be 40% bigger, but its population is much smaller. Mr Obama has recognised that he owes his electoral victory in part to Hispanic voters (most of whom are of Mexican descent). More than half a million Americans live in Mexico. And the security problems in Mexico caused by the American demand for cocaine are a growing worry to policymakers in both countries.

“By working together with Mexico we remain on the radar screen,” says Carlo Dade of the Canadian Foundation for the Americas, a think-tank. Canada’s prime minister, Stephen Harper, has made no comment on trilateral relations, except to oppose reopening NAFTA. He has made Latin America a foreign-policy priority, and gets on well with Mr Calderón. When the Buy America provisions of the American Congress’s economic stimulus plan hit the news, Mr Harper called Mr Calderón to confer on how to fight protectionism. The Democrats in Congress may have unwittingly handed Canada and Mexico something big their relationship has lacked in the past—a common cause.