Beyond Decriminalization: Sex-work, Human Rights and a New ...

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PIVOT LEGAL SOCIETYPublic policyIn addition to humanitarian and compassionate considerations, the government may considerpublic policy in determining whether a person may enter or remain in Canada as a permanent resident,or be granted an exception from any criteria or obligation under IRPA. 58We are unaware of any circumstance where a victim of trafficking has been allowed to stay inCanada, although she or he could claim refugee status or request to be allowed to stay on humanitariangrounds. In the event that trafficking victims are allowed to stay in Canada, some groups andorganizations argue that this is not sufficient protection since there are no government programsdesigned to help them transition to a life where they are not compelled to engage in prostitution. 59The Canadian authorities are in a position to provide some protection to trafficked sex workers inCanada by not deporting them as a matter of course; instead they could consider their circumstanceson humanitarian and compassionate grounds as per the current provisions of IRPA. Trafficked sexworkers are not perpetrators but victims of crime, and should be protected as such. Australia hasacknowledged this, and in 2003 introduced a new visa arrangements for potentially trafficked persons,including a permanent visa in certain circumstances. 60Immigration law recommendations1. Migrant sex workers need greater access to the rights and protections found in the Charter ofRights and Freedoms.2. Not all migrant sex workers should be characterized as “trafficked persons” or “victims.”3. Trafficked persons should be seen as having suffered significant human rights abuses and begranted permanent resident status so that they do not fear removal or deportation as a result ofcoming forward.4. Trafficked persons should not be compelled to testify without appropriate witness protections inplace.58 IRPA, Article 25(1).59 Supra note 21 at 7.60 Supra note 42.204
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformPART 9: FAMILY LAWBecause of the nature of their work, many sex workers have been subjectedto questions about their ability to parent when the Courts become involvedin a dispute over child custody, or when B.C.’s Ministry of Children andFamily Development (“MCFD”) initiates a child protection investigation.If adult prostitution is decriminalized, it is likely to become more visible,in which case it may become more difficult for sex workers with childrento conceal their involvement in prostitution. In this chapter, we examinefamily-law issues that may arise for parents who work in the sex industry.We focus on the ways that government agencies and the Courts shouldprotect the rights of sex workers and their children.Child custody, access and guardianshipWhen parents live together they share custody and guardianship of their children. If they separateor divorce, custody and guardianship may continue to be shared or may be awarded to one of theparents. When parents separate, the custodial parent lives with and provides daily care for the children.In a sole custody arrangement, only one parent has legal custody of the children. In a “joint”or “shared” custody arrangement, the child spends time living with both parents. In a “split” custodyarrangement, each parent has custody of one or more of the children. “Guardianship” refers to theresponsibility for making decisions about important aspects of the child’s life, such as the educationor health care the child will receive. Like custody, guardianship can be retained by one parent only orcan be shared between the parents. “Access” refers to the time a parent is permitted to spend with their child when they do nothave legal custody of that child. Usually, if one parent has full custody of a child, the other parent isgranted access. In rare cases where a judge believes that a parent might harm or kidnap the children,the judge may refuse to allow that parent access to his or her children. Alternatively, the judge mightorder “supervised access,” meaning that the non-custodial parent may spend time with the childrenonly when another adult is present.Parental involvement in prostitution and the “best interests of the child”The “best interests of the child” is the paramount criterion in custody determinations. However,this concept is elusive and difficult to define; its application is highly contextual and varies from caseto case. When attempting to establish what is in the best interests of the child, the Court considerssuch factors as the child’s health and emotional well-being, the views of the child where appropriate,the love and affection that exist between the child and others, the potential for the child’s educationand training, and the capacity of each person to whom custody or access may be granted to exerciseadequately the rights and duties of custody or access. Guardianship also refers to the responsibility for the estate of a child. [Family Relations Act, R.S.B.C 1996, c. 28, s. 25.] The Family Justice section of the B.C. Ministry of the Attorney-General website provides basic information about custody, access,and guardianship issues. It is available at: . Legal definitions and terms can befound in the Divorce Act, Child Support Guidelines, and Family Relations Act. Divorce Act, R.S. 1985 (2nd Supp.), c. 3, s. 16(8); Family Relations Act, R.S.B.C. 1996, c. 128, s. 24205
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