Subsidized daycare | Victory for asylum seekers

Asylum seekers, and more particularly asylum seekers, will now be able to send their children to subsidized daycare at $9.10 per day.

In a unanimous judgment, published on February 7, the Court of Appeal concludes that the government’s exclusion of asylum seekers from the program of access to subsidized childcare services constitutes a discriminatory measure against women and violation of the right to equality protected by section 15 of the Canadian Charter of Human Rights and Freedoms.

” That’s wonderful ! reacted the complainant in this case, Bijou Kanyinda, in an interview with The Press. I am really very satisfied with the judgment because other parents will be able to benefit from what we were not able to benefit from. »

The story dates back to 2018, when the Couillard government reinterpreted section 3 of the Regulations on the reduced contribution of the Educational Childcare Actwhich indicates that a person is eligible for subsidized daycare if they “stay in Quebec mainly to work there”.

According to the new interpretation, since an asylum seeker is not in Quebec “mainly” to work there, but rather to find refuge there, he is therefore not admissible. Overnight, the families of asylum seekers were therefore excluded from reduced-rate daycare.

A refusal in 2018

Bijou Kanyinda, a 46-year-old Congolese mother of three young children, fled her country and was refused access to subsidized daycare upon her arrival in Quebec in 2018 because she was waiting for her refugee status.

M^e Sibel Ataogul, a friend of a friend of an asylum seeker, chose to defend this cause pro bonowith his colleague, M^e Guillaume Grenier.

“I am a lawyer in labor law and human rights,” she explains. My friend told me about all the difficulties this asylum seeker was experiencing: she did not have access to subsidized daycare, she had three children, did not know what she was going to do, etc. I said: that makes no sense! We appealed and five years later, we won in the Court of Appeal. As of today, as we speak, asylum seekers have access to subsidized daycare. That’s really something! »

Other organizations joined the file, notably the Daycare Access Committee, Amnesty International and the Commission on Human Rights and Youth Rights.

The Superior Court first ruled in favor of Mr.^me Kanyinda, May 25, 2022. But the Attorney General of Quebec, this time under the Legault government, appealed the case, which had the effect of suspending the decision. The plaintiffs also appealed the case, but for other reasons.

The 41-page judgment, written by Judge Julie Dutil, was delivered by three judges of the Court of Appeal.

Discrimination against women

This case had several aspects, constitutional questions, regulatory aspects, but the main part of the judgment concerns the question of discrimination against women. It is on this basis that the judges found in favor of M^me Kanyinda, believing that the disputed regulations must be rewritten.

“I therefore propose that article 3 [du Règlement sur la contribution réduite] reads as making eligible for payment of the reduced contribution the parent who resides in Quebec for the purposes of an asylum application while holding a work permit,” writes Judge Dutil.

The Court of Appeal concludes that this regulation is discriminatory because it affects women more.

“Women suffer a historical disadvantage in the workplace due to the fact that they disproportionately assume the obligations relating to the custody and care of children,” adds the judge.

“I conclude that Article 3 [du Règlement sur la contribution réduite] reinforces and perpetuates the historical disadvantage experienced by women who wish to participate in the labor market. The distinction it creates by excluding people seeking asylum therefore constitutes discrimination with a detrimental effect based on sex within the meaning of section 51 of the Canadian Charter,” writes Judge Dutil.

The Minister of Families will wait before reacting

The Attorney General of Quebec could appeal this judgment to the Supreme Court, which, as we know, decides itself whether or not it hears a case.

The Minister of Families, Suzanne Roy, however, declared on Wednesday that she would take the time to analyze the decision: “We are currently looking at the entire judgment and we will come back with the decisions. »

Part of the Attorney General’s argument in this case, as interpreted by the court, was “that the real and urgent objective of excluding people seeking asylum from the benefit of reduced contributions for daycare places is that the legislator wants to give financial assistance to people who have a sufficient link with Quebec.

This link with Quebec would be all the weaker since the State cannot take for granted that the asylum request is well-founded.

An integration tool

This judgment comes at a time when the costs generated by the arrival of asylum seekers on Quebec territory are under scrutiny.

The eligibility of asylum seekers for reduced-rate custody represents an additional cost for the Quebec state.

But since daycares are an element that facilitates women’s access to the labor market, and more particularly that of more vulnerable women, and since the fact that asylum seekers can work is a desirable objective for Quebec, the Access to daycare should be a preferred tool.

This is what the general director of Amnesty International, France-Isabelle Langlois, believes. “It is much more profitable for the government, for institutions, to provide access to reduced-rate childcare services for these people, so that they can enter the job market,” he said. she declared. It is also an important factor of social inclusion, both for children and parents. »

Stephan Reichhold, director of the Table de concertation des organizations serving refugees and immigrants, shares this opinion.

M^e Stéphanie Valois, co-president of the Quebec Association of Immigration Lawyers (AQAADI), is also delighted with this news. “Access to daycare is an essential need,” she says. This is extremely important for newcomers because it is the secret to their integration and the integration of children into the French-speaking school system. It’s positive for everyone. »

In a written statement, the immigration spokesperson for Québec solidaire (QS), Guillaume Cliche-Rivard, said he hoped the government would accept the conclusions of the judgment.

If appealed, M^e Sibel Ataogul assures that she will continue to defend the interests of asylum seekers. “My goal in life is that when I go to court, I fight. If there is an appeal, I will fight again, she said. My office is going to be there until the end. »

A long legal process

April 2018

A directive from the Couillard government gives a more restrictive interpretation of section 3 of Regulations on the reduced contribution (RCR) relating to eligibility for low-cost daycare places, and excludes asylum seekers.

October 9, 2018

A Congolese woman, Bijou Kanyinda, enters Quebec via Roxham Road with her three children aged 5, 4 and 2, and asks for asylum. While waiting for refugee status, she cannot obtain places in an early childhood center (CPE).

May 31, 2019

M^me Kanyinda files a request for judicial review of this measure, joined by the Commission on Human Rights and Youth Rights (CDPDJ).

May 25, 2022

The Superior Court allowed the appeal. She agrees with M.^me Kanyinda and declares the regulation ultra vires. However, the Court does not take into account considerations linked to the Charter of Rights. The parties, i.e. M^me Kanyinda, the CDPDJ and, on the other hand, the Attorney General of Quebec, are appealing the judgment for opposing reasons.

November 2, 2023

The Court of Appeal holds its hearings, where judges Julie Dutil, Robert M. Mainville and Benoît Moore sit, and hears the parties.

February 7, 2024

The Court of Appeal publishes its decision which favors the plaintiff. She does not accept the arguments of the Attorney General of Quebec, basing her judgment on arguments linked to discrimination against women. M’s children^me Kanyinda are now 10, 9 and 7 years old.