A law that bars refugee claimants from receiving federal child benefits violates Canada’s constitution, says the lawyer representing a family with a Canadian-born child.

“The irony is we are allowing other temporary residents in Canada to claim this benefit as long as they have lived here for 18 months even if they may not need the money,” said Avvy Go, director of the Chinese and Southeast Asian Legal Clinic in Toronto.

“But if you are refugee claimants who are working, have a child born in Canada and have a real need for the money, you are still not eligible.”

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Go is currently representing six clients who are challenging the Canada Revenue Agency (CRA) over the differential treatment, which they argue violates their charter rights based on immigration status.

The legal clinic is working with other clinics and community groups to intervene in other such cases.

“It is unfair that Canadian-born children do not have access to the child benefit program because of the precarious status of their parents,” said Debbie Douglas of the Ontario Council of Agencies Serving Immigrants.

“Their children miss out on this critical poverty reducing program. We must find a way for Canadian children regardless of the immigration status of their parents to access this important benefit to which they are entitled.”

According to the Income Tax Act, eligibility for child benefits is restricted to Canadian citizens, permanent residents, accepted refugees belonging to the humanitarian designated class, “temporary residents” who have lived in Canada for an 18-month period at the time of the application, or the spouse or common-law partners of any of those people.

“For (child benefit) purposes, a valid status is required, in addition to satisfying the other requirements, before we can determine an individual’s eligibility. Newcomers arriving in Canada with a valid status, such as permanent resident or a protected person, are eligible the moth following their arrival in Canada,” said Canada Revenue Agency spokesperson Etienne Biram.

“Temporary residents (work, study or visitor permits) are eligible the month following 18 months of continuous residency in Canada, as long as there are valid permits for the entire period and those permits continue to be valid the 19th month of residency.”

Although tourists and international students theoretically are counted as temporary residents, Biram said generally they would find it difficult to meet the continuous residency requirement to qualify for the benefits.

Go argues that refugees, too, are temporary residents of Canada and the tax agency must broaden its definition.

“The term ‘temporary resident’ is not clearly defined in the law. I have had clients who received the benefits but were asked to pay the CRA back a couple years later. One of them had to pay back $15,000,” said Go.

“We have Canadian-born children who are not receiving the equal benefits that other Canadian-born children are getting, all because of their parents’ immigration status.”

In addition to refugee claimants, Go said the child benefit criteria also excludes failed refugees awaiting appeal or permanent residence on humanitarian grounds and temporary foreign workers, regardless of their length of residence in Canada.

The amount of child benefits a person is entitled to varies depending by their number of children, their ages, the adjusted family net income and the child’s eligibility for disability benefits.

The basic benefit for a child under age 6 amounts to $6,400 a year, and $5,400 for those aged 6 to 17. It is reduced when a family’s net income is over $30,000.

One of Go’s cases involves a woman, her husband and their now 7-year-old son who came to Canada from China for asylum in 2014. The parents were issued work permits and are still waiting for their refugee hearing.

The husband, a construction worker, was injured at work and the family is now receiving Ontario Disability Support Program payments. Although their 2-year-old daughter was born in Canada, they were deemed ineligible for child benefits. Their challenge of the decision was recently dismissed by the tax agency’s appeals division. Their next stop is the Tax Court of Canada.

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Go said the eligibility of child benefits primarily excludes women with precarious immigration status, many of them from racialized communities.

“By design, the (child benefits) regime excludes some of the most economically, socially and politically vulnerable populations within Canadian society,” she said.

“This denial is arbitrary because it is inconsistent with the legislative objectives of the (child benefits) regime and the blanket prohibition does not consider such factors as the applicant’s and her child’s ties with Canada, their financial need, and the best interests of the child.”

The tax agency receives about 570,000 child benefit applications each year, but declined to reveal how many are declared ineligible.

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