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As if he had won a soccer match, Damas Porcena waves his arms in celebration, both fists clenched in the air. This father of two children aged two and four celebrates the decision of the Quebec Court of Appeal, which gives asylum seekers with a work permit the right to have access to subsidized daycares and early childhood centers (CPEs). A decision that gives freedom to thousands of parents who have been deprived of this right since 2018.
“We feel liberated! Even if she is our daughter and we love her, we are not free to move, to work, to see people, to meet people,” says the 44-year-old man from Haiti, who arrived six months ago in the company of his wife and their two daughters.
The judges of the Court of Appeal decided in favor of the plaintiffs in a lawsuit brought by Bijou Cibuabua Kanyinda and the Quebec Human Rights Commission against the Quebec State in 2018.
“My wife said, “I'm going to be able to go to school.” We were very, very happy”, exclaims Mr. Porcena, whom La Converse met at the premises of the Collective Bienvenu. Dynamic and jovial, he is struggling to contain his joy at the prospects that are finally opening up to him and his family.
“Normally, when we have an appointment, we have to bring it with us in a stroller on the subway and the bus, even if it takes an hour or two. We should always have it with us. We have no choice.”
In her decision, Quebec Court of Appeal judge Julie Dutil emphasized the discriminatory nature of this exclusion.
“The inclusion of persons seeking asylum in Article 3 of CPR [Reduced Contribution Regulation] will also have no significant financial repercussions, since they do not benefit from automatic access to the reduced contribution, but rather from the possibility of accessing it,” she argues.
“I therefore propose that Article 3 (3) of the CPR reads as making eligible for payment of the reduced contribution a parent who resides in Quebec for the purposes of an asylum application while holding a work permit.”
A look back at a judicial saga...
In 2018, Philippe Couillard's provincial government changed the rules of the game and excluded access to subsidized daycare for the children of asylum seekers with a work permit. They had access to the same services from 2015 to 2018.
Bijou Cibuabua Kanyinda is the mother of three children who accompanied her to Quebec when she decided to cross the border with the United States on Roxham Road. They were two, four and five years old at the time she filed her appeal.
While she is looking for places for her children in subsidized daycares, they are refused, because “access to these services [is] reserved for people whose refugee status is formally recognized by the federal authorities,” the legal documents read.
Now, MMe Kanyinda has his work permit and the delay between filing an asylum application, hearing and obtaining refugee status can take years. That is why she decided to appeal to justice.
Other organizations supported his request, including the Child Care Access Committee and Amnesty International.
The Superior Court of Quebec rules in favor of asylum seekers and their right to access subsidized daycare on May 25, 2022. The judgment is contested by both parties for opposing reasons.
In the judgment of February 7, 2024, judge Julie Dutil determined that the refusal of asylum seekers to have access to subsidized childcare “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.”
And it is precisely this discrimination based on gender that Ileana experiences every day. This 30-year-old single mother came from Nicaragua alone and pregnant, but she faced a lot of obstacles. “I have seen very difficult cases where mothers fall psychologically, like me,” she says. It affects us a lot, because we get discouraged, and we say to ourselves, “I won't be able to connect with anyone.” You stay isolated at home, you can't even volunteer. We can't because we don't have access to daycare.”
... that may not be over
If the Attorney General of Quebec, who represents the province, decides to challenge the Court of Appeal's judgment, the case will go to the Supreme Court of Canada.
However, the highest legal body in the country must agree to hear it. On the side of the Ministry of Family Affairs, it is too early to announce next steps. “We are still learning [of the decision], explains the ministry's press officer in an email. It is too early to comment on the effects of the Court's decision on the educational child care system.”
According to the most recent data from the Ministry of the Family, 32,113 children are waiting for a place in subsidized daycare.
Described as historic because of its recognition of discrimination against women from a sub-group, namely that of asylum seekers, the Court of Appeal's judgment aroused the enthusiasm of one of the lawyers for the cause, Mr.E Guillaume Grenier, who describes the decision as “comprehensive.”
“We think that the judgment is extremely solid, and we hope that the government will take note of this and not appeal the judgment,” says the person who is handling the case with his colleague Mr.E Sibel Ataogul since 2019.
On a more personal note, M.E Grenier realizes the scope of his work, which he sees as a culmination. “It's extremely moving. I was hearing the testimonies [of asylum seekers], and even now, it moves me. We cannot remain indifferent to that. In the end, this is what drives our actions.”
Daycare, a good place to socialize
If daycare provides a good educational program for children, However, its benefits are multiple for their development. These living spaces for toddlers allow children to socialize, but also to acquire skills that will be useful to them in kindergarten. And this integration is all the more important for children who don't speak French at home, notes Mélissa Claisse, of the Bienvenu Collective.
“Having very good access to language acquisition conditions is huge for these children. In addition, being in an early childhood education environment gives them access to screening for developmental problems,” says the woman who has witnessed situations where children were followed up much later for a learning problem.
“They wouldn't have access to it if they stayed home. And for children who have these problems, early intervention makes a huge difference.”
And we can add that socialization is not only for toddlers — parents also benefit. “With access to daycare, now that I am told that it is possible [to bring my daughter there], you cannot imagine how I feel,” exclaims Ileana, her one-year-old daughter in her arms. The little one has a fever and does not want to leave her mother's arms.
“It feels like a lot of doors are opening! And the possibilities are endless for me. Both to integrate myself and to support organizations, to volunteer, to work, to study, do you understand? ”
The first wish of this single mother? Take French lessons and integrate into Quebec society as quickly as possible. “I was losing hope... To learn the language and have richer conversations with other people. Integration also means being autonomous,” she philosophises as she gently cradles her daughter.
Ileana's face lights up at the mention of this possibility, she who is constantly struggling to be understood in a system where she does not speak French or English. Especially when it comes to seeking care for your daughter. Without daycare, it's very difficult.
An appeal of the decision?
The speakers of the Bienvenu Collective can attest to the effects of this advance, both in terms of accessing the job market and in taking French language courses. And they believe that women are going to benefit.
“I know at least a hundred people who are trained as caregivers and who could work right now,” says Maryse Poisson, executive director of this group that helps refugees and asylum seekers.
When asked what they would say to policy makers if they were ever tempted to appeal the judgment of the Quebec Court of Appeal and take the case to the Supreme Court, Mr. Porcena and Ileana are unanimous: taking away their access to subsidized daycare would be like shutting doors in their face and taking away opportunities.
“When you come here [as asylum seekers], integration is difficult. We really need it,” said Mr Porcena, who then apologized for being in a hurry to leave.
“Now I have to go home because my wife has an appointment; I have to do the relay. It gets in the way [my schedule]; if my daughter were in a daycare, my wife would be free to move around without me having to come home.”
When daycare makes a difference
Mélissa Claisse, of the Collectif Bienvenu, wants Quebec to recognize the immense difference that this access to subsidized daycares could represent. “Recently, François Legault specifically mentioned the burden that asylum seekers represent for the social assistance program. It's a perfect example of how to make a huge difference in this area. Access to employment means leaving social assistance. And families don't want to be dependent on welfare.”
And what's more, asylum seekers want to contribute to society — that's what Ileana believes in.
“If we take away this opportunity, many, many asylum seekers will leave, because they will lose their illusions. They are tired of fighting, of trying to integrate without being able to do so. It makes them feel... how to say? rejected. I know a lot of people here who think it would be better to go back and not fight anymore.”