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Collaborative Strategy

Strategies for a Friendly and Affordable Separation and/or Divorce

RECOMMENDATIONS

  1. Learn about the law.
  2. Collect and summarize relevant information using my FREE WORKBOOK.
  3. Identify Agreements and disagreements BUT do NOT dwell on disagreements…just identify them! It’s amazing how many of these disagreements simply disappear as individuals work through this collaborative process.
  4. Choose your service provider(s). If you live in Alberta, call me (Debbie Ward) at 1-800-320-2477 (or 403-229-2774 in Calgary) for a FREE CONSULTATION.
  5. Proceed with your Separation Agreement, Divorce and/or other required service.
  6. Consult with a lawyer for legal advice (if applicable).
  7. Resolve disagreements.
  8. Finalize your Separation Agreement, Divorce and/or other required service.

#1. Do NOT fight about disagreements until the first 7 steps have been completed.

These Instructions help you focus on the process (facts), not the problems (disputes/reasons for marriage breakdown). Focus on the process and be seen as more credible and taken more seriously by your lawyer. You will be well organized and prepared. You will reduce the amount of time spent with a lawyer. You will understand and be in control of your Separation and/or Divorce. You will reduce conflict. You will save hundreds, and possibly thousands of dollars. More importantly, you will gain peace of mind and lessen the impact of marriage breakdown, Separation and Divorce on you, your spouse and your children.

Does it make sense to dwell on disagreements when all of the facts have not been gathered and summarized into a meaningful format, when you may not fully understand your legal rights and responsibilities, and prior to you and your spouse receiving independent legal advice? It is okay to identify disagreements at the beginning of the process, just do NOT dwell on them until you’ve completed Step #1 to Step #7. For most of my clients, if they put their trust in the collaborative process…the disagreements often simply disappear. 

#2. Until you have a fully executed Separation Agreement all Agreements are subject to change.

If you are at all uncomfortable negotiating any kind of Agreement with your spouse, please keep in mind that any Agreement negotiated with your spouse will be reviewed with a lawyer before it is signed. If on that advice you decide you want changes, the Agreement can then be re-negotiated.

No one can be bound by an Agreement until there has been full disclosure, full appreciation for what is being negotiated (which is usually not apparent until a full Agreement has been drafted and a networth statement for each party created), and independent legal advice received.

#3. Recognize that I do NOT represent the bests interests of either party.

I often tell each spouse that I do not represent the best interests of either or both parties. My interest is simply to help the parties with the drafting of an Agreement—which is why they must each take the Agreement to their respective lawyers for review, advice and signing. It is for their protection AND it is for my protection. First, each lawyer will represent their best interests. Secondly, neither party can say that they relied on me in any way for legal advice. I type the Agreement under your direction. I don’t give legal advice. You rely on your lawyers for legal advice. I then incorporate any changes either of you wish, if any, based upon the advice of your lawyers.

We gather the facts (what you acquired in terms of property, assets and debts and how you propose to divide everything); document how you want custody, access and child support worded; and, indicate whether or not there will be spousal support. We discuss the possibility of exemptions. We discuss general procedures to divide property, assets and debts equally (though there may be exceptions were it is not necessary or appropriate to divide equally).

Keep in mind that:

  • The parties can agree to deviate from an equal division—they need to consider the law but also have the right to consider situations where it might be appropriate or fair not to follow the letter of the law—to consider circumstances in the relationship which would make it fair to divide in some other manner.
  • Perhaps it has always been the desire of both parties to keep some or all assets acquired solely as separate and not to be divided in the event of Separation or Divorce.

We also discuss situations where parties can negotiate trades—such as a waiver of spousal support and/or child support in consideration of an unequal division of matrimonial property. Any negotiated Agreement, whether equal or not, will be reviewed with each of your lawyers. We discuss the fact that I am relying on the parties to provide complete, full and honest disclosure, that the parties may wish to pursue a more formal evaluation and disclosure process with their lawyers. We also discuss the fact that my services are completely inappropriate in situations where one or both spouses are hiding or disposing of assets and/or income, when the parties have complex situation or when the parties are unable or unwilling to cooperate in a friendly non-adversarial manner.

#4. Advanced Planning

Lawyers are great at giving advice. But, there are steps that may save time and money that can be made even before you go to a lawyer.

Parenting after Separation Seminar

If your disputes are over children, you and your spouse may want to attend the free 6-hour Parenting After Separation Seminar. The facilitators help parents understand how to minimize the impact of Separation on children, and offer general information (rights and responsibilities) about custody, access and child support. If you would like to attend this free seminar, please select the link below for a list of Cities (and telephone numbers) in Alberta that have an in-class seminar:

Parenting After Separation Seminar

Alternatively, you may complete the course online by going to this link: pas.albertacourts.ab.ca

Published Books

There are several very good books that will help you with the process of Separation and Divorce found in your public library or local bookstore. Make sure that Divorce literature applies to Canada, property division applies to the laws of the Province you live in, and the publication date is recent.

Financial Advisor

Before taking the Agreement to a lawyer for advice and signing, you can each take the Agreement to a Financial Advisor (i.e. Investment Advisor, Chartered Accountant or Divorce Financial Analyst) to determine any financial consequences involving the proposed division (such as capital gains taxes, disposition costs and balancing of risks).

A financial advisor may be extremely important in the following situations:

  • Transferring rental properties to a spouse may trigger capital gains taxes or losses;
  • Either party may have significant capital gains and losses on investments that have not yet been declared.

You can both review your documentation with your financial advisor to ensure disclosure is accurate with respect to any financial accounts the financial planner is aware of. You can also ask if there are any financial considerations that you both ought to consider.

Some lawyers have a financial background and would be appropriate to advise on this. If there are complex financial issues, your lawyer will advise as to whether you should see a financial advisor.

Family Law Information Centre (operated by Family Justice Services)

The Family Law Information Centre at the Court House can confirm child support calculations and standard of living tests—all for free, which take into account the incomes of both parties after payment of government source deductions, payment/receipt of spousal support and payment/receipt of child support. Standard of living tests are only applied in certain circumstances.

We also provide you with a copy of these calculations that you can take to your lawyer, along with your Separation Agreement (if we draft if for you) for review and advice.

You can also find the following free online lookups:

Banker / Creditor

You can each take the Agreement to your banker or creditor to ensure that one spouse will qualify to assume a debt if that is the Agreement (assumptions of mortgages are not automatic as they once were—the party keeping the matrimonial home may have to re-qualify unless both spouses agree to remain on the mortgage jointly until one spouse qualifies on their own, obtains a co-signer, or until a set date in the future).

Normally, I would draft the Agreement for both parties. They would then take it to their bank to ensure that the bank will cooperate with the parties’ wishes regarding re-financing. We would then make any relevant changes to the Agreement based upon the bank’s agreement, prior to the parties’ meeting with their lawyers.

Financial TIPS on sale of matrimonial home:

  • If you and your spouse intend to sell the matrimonial home and purchase new properties (i.e. one for each), be sure to negotiate with the bank to have them waive the mortgage penalties upon the sale of the matrimonial home. Often, they’ll cooperate. HOWEVER, be also sure that you get the lowest possible interest rate.
  • You may not realize that when banks happily agree to waive your interest, it is because you did not negotiate the interest rate. Sometimes you SAVE by taking the penalty for a lower interest rate, especially if you think interest rates will go up in the future.
  • If you are selling at one low interest rate and are being offered a higher rate for the purchase of a new home (ie. mortgage rates have gone up since signing your last mortgage), there should be no mortgage penalty. Why would there be a penalty when you are signing on at a higher mortgage rate? If the bank still wants to give you a penalty, then I would suggest you consider looking elsewhere for a mortgage.
  • Negotiate negotiate negotiate with your Realtor! If one Realtor is used for the sale of your matrimonial home and purchase of two separate homes, you should be getting a very good deal on Real Estate Commissions.

Monthly Budget

Preparing and following a monthly budget is always important. However, I normally don’t expect people to prepare a budget and then say to their spouse “this is what I need, so this is what I want”. Normally, property is divided fairly and an appropriate amount of child support and spousal support is paid. Then, you learn to live within your means. You don’t usually get more money simply because you want it or pay less because you feel you can’t afford to pay it.

Normally, you get what you are entitled to (or pay what you are required to pay) then learn to live within your means.

This is not legal advice, just my view of things. I mention this because some lawyers spend a lot of time having the couples prepare monthly budgets and I have yet to fully appreciate the value of this timely and expensive exercise, unless:

  • A spouse might negotiate extra money upfront (and less later) in order to afford and keep the matrimonial home while the children are still in school.
  • A monthly budget will help someone figure out if they can afford to keep the matrimonial home— but usually determining whether that person qualifies for a mortgage answers the same question.
  • A monthly budget will help the parties figure out who pays what until such time as everything has been divided.

Child Tax Credits and GST Credits

Curious as to how much child tax credits will increase or how much in GST credits you might qualify for? Though this is not likely to affect the division of things, if you find out that your child tax credits will increase a hundred or two, it might reduce your stress a little. Check here for free online calculators:

Canada Revenue Agency CCTC and GST Benefits Calculator

Division of Property, Assets and Debts

In the sidebar of this blog fill in the form to receive your free Divorce & Property Workbook.

What is the Parenting After Separation Seminar (PAS) About?

Parenting After Separation

This Parenting after Separation seminar is one of many free seminars and services offered by Family Justice Services, a division of the Department of Justice Canada, and in coordination with the Alberta Courts.  The purpose of this seminar is to give parents who are separated or seeking a divorce the knowledge and tools they will require to better serve their children’s health, social and emotional needs.

Why is the Government Providing this Free Course?

Studies have shown that children of parents who complete the program are much less likely to develop Parental Alienation Syndrome. As the children’s mental health is paramount, it is in their best interests that the government funds this type of program. As well, attendance in the free course will provide the following additional benefits:

  • answers frequently asked questions about custody, access and child support;
  • helps parents learn how to minimize the impact of separation and/or divorce on children; and
  • reduces the risk of conflict between the parties and before the courts on matters concerning the children.

I remember once having a friend who used to be in high conflict with the mother of his children.  He attended the seminar and learned how separated and fighting parents can negatively affect children.  He then called the mother of his children and arranged a friendly lunch to discuss the things that he learned.  It was a pivotal turning point in their co-parenting—and from that point forward, their co-parenting became very friendly.

How do I register for the course?

Previously, the seminar was only available in-class on a Saturday (full-day) or two evenings.  But now you can complete the course on-line in 3 hours!  You can visit the Alberta Government’s Website here: http://pas.albertacourts.ab.ca/PAS-course .  Click the “Register to Access Course”  button.

Online Parenting After Separation Seminar

Course Topics

Topics parents will learn include:

  • Relationship Building Blocks
  • How Children Can Cope with Separation and Divorce
  • Learning Your Way Around the Legal System
  • Parenting Plans That Work for Your Family
  • Important Information and resources to assist you

 Is the PAS Course Mandatory?

In the Court of Queen’s Bench of Alberta, filing a Certificate of Completion of the Parenting after Separation program is required in most cases before finalizing a divorce. In the Alberta Provincial Court, Judges often order the completion of the course before proceeding with any type of application involving children (ie. custody, access and child support).

Can I get an Exemption from the Parenting After Separation Seminar?

Yes, it is possible that you may be able to apply for and receive an exemption from attending the seminar. But, now that the seminar is available on-line, exemptions are difficult to obtain.  If you are in a battle over custody, access and child support with your spouse and you refuse to take the PAS Course, it may negatively affect the outcome of your case (ie. if you are not willing to take it, the Judge might assume you do not have the children’s bests interests at heart).

The following situations may qualify you for an exemption (but we recommend that you make every effort to take the course):

  • parties have an executed legal separation agreement (signed with lawyers);
  • the children are 16 years of age or older;
  • the parties have sworn Affidavits confirming they have settled all issues between them;
  • the parties have been separate and apart for over 10 years;
  • the children live out of the Country or with a third party;
  • cases involving kidnapping or domestic abuse; and
  • other extraordinary circumstances.

Often it is more work to get an exemption than simply taking the online course.

Other Courses

Other available seminars include:

  • Parenting After Separation High Conflict
  • Focus on Communication

To learn more about all of these seminars, click this link:  Family Justice Services Seminars

Parenting Lessons

One of the interesting take-a-ways I got from this seminar is that children identify with both parents. If you criticize the other parent in front of the children—effectively it’s like criticizing your children.  Also, it brings the children a tremendous amount of joy when:

  • you talk kindly of the other parent in front of the children; and
  • get them excited when it comes time to buy or make presents for the other parent.

Most importantly, it is important that you do these nice things even if the other parent does not do them for you.  You will also learn how typical behaviors arise in children as they reach certain ages, as a result of their parents’ separation and/or divorce. You will learn the age-related behaviors that can be expected, and how best to manage them.

Do you have favorite lessons that you’ve learned from this or other parenting courses?  Please feel free to share your comments below. In the meantime, here is a fantastic video providing children’s perspective of divorce.

Children: The Experts on Divorce from PLEIS NB on Vimeo.

Tuck your waiver in your passport for safekeeping when travelling through the United States

Tuck your waiver in your passport for safekeeping when traveling through the United States

Congratulations! You successfully applied for and received an I-192 Waiver of Inadmissibility.  But now what? Ensure your travel plans go smoothly with these simple tips:

BEFORE TRAVEL

  1. If you have not already done so AND you are our client, email or fax to us a copy of your Waiver for safekeeping. If you’d like to be our client, please contact us!
  2. Insert your ORIGINAL Waiver into your passport.
  3. Put an elastic around your passport so that your Waiver does not fall out.

DURING TRAVEL TO THE USA

  1. When travelling to the U.S., present your passport and Waiver upon entry.  Your Waiver can be revoked if you don’t present it upon entry!  Though rare, I have heard of this happening before.  On your Waiver, it states “you must present this Waiver upon entry”.
  2. When the officer is done reviewing your passport and Waiver, be sure the Waiver is put back in your passport and put the elastic back on.  This ensures your Waiver is returned to you.  We had a situation where the waiver was not returned to our client, which our client did not notice until after it was too late. Unfortunately, the cost to replace a lost waiver is $405 USD.

AVOID DELAY AND EMBARRASSMENT

  1. Arrive at least 2 hours early for U.S. travel.  Even though you have a Waiver, you can be detained until the border guard ‘has time’ and will verify there are no new convictions and that the Waiver is valid.  If you do not leave the border guard enough time, you can miss your flight.
  2. Boarder guards may discuss the details of your Waiver and criminal record with you—so if you wish to avoid this conversation in the presence of others, go through security by yourself.  Some officers may not respect your privacy even if you are in the presence of children and co-workers.

TRAVELLING TO OTHER COUNTRIES

  1. If traveling internationally via the U.S., remove your Waiver from your passport after you have gone through U.S. Security and place it in a secure place when traveling through non-US Countries.  Other Countries do not need to see your Waiver.
  2. If you are not traveling to or en-route through the USA, be sure to keep your US Waiver in a safe place at home.

LOST OR STOLEN

  1. The fee is $405 USD to replace a lost or stolen Waiver.
  2. You should report a stolen Waiver to the police and to Homeland Security.
  3. If your waiver is lost or stolen, please contact us.

Have a question?

We are here to help! Give us a call @ 403-229-2774 (Calgary) or 1-800-320-2477 (Toll Free)

Final Ruling on I-192 Waiver Fee Increase

Coutts Border Crossing - Will US Waiver fee increase affect border applications?

Coutts Border Crossing – Will US I-192 Waiver fee increase affect border applications?

The application fee for I-192 Waiver of Inadmissibility is increasing from $585.00 USD to $930.00 USD. This site shows the fee is increasing December 23, 2016. https://www.uscis.gov/forms/our-fees  But, does this fee apply to everyone?  Keep reading to find out.

The Fee Increase will Not Affect Canadians!

The good news is that the fee increase will not affect Canadians. However, the fee does affect people who are unable to submit their application at a United States Customs and Border Protection Office (CBP Office). Where are CBP Offices located?  A CBP Office is located at every international airport in Canada and every major land border crossing between Canada and the United States.

The final ruling states:

Application for Advance Permission to Enter as a Non-immigrant, Form I-192, and Application for Waiver for Passport and/or Visa, Form I-193. DHS has made adjustments to the proposed fees in the final rule for the Application for Advance Permission to Enter as a Non-immigrant, Form I-192, and the Application for Waiver for Passport and/or Visa, Form I-193. For the reasons outlined in section IV.B.2.p. of this preamble, the fees for Forms I-192 and I-193 will remain at $585, rather than the proposed fee of $930 when such forms are submitted to and processed by the U.S. Customs and Border Protection (CBP).

To summarize, after public comment period, a final rule was published.  Effective December 23, 2016, the fees will be as follows:

  • Form I-212 fee will increase to $930.00 USD;
  • Form I-192 waiver fee will increase to $930.00 USD for applications filed with USCIS (Non-immigrant T and U classifications); and
  • I-192 waiver applications filed with and processed by CBP will remain $585.00 USD.

For more information, see Federal Register Vol. 81, No. 205, Monday, October 24, 2016. (Linked below)

— Source: https://www.federalregister.gov/d/2016-25328/p-104

 

Top 7 Reasons You May be Denied Entry to the United States

Grounds for Inadmissibility

The ability to travel to the United States is not an automatic right—not even for Canadians!  You may be denied entry to the United States for one of the following reasons:

Criminal Inadmissibility – You have a criminal record that makes you inadmissible to the United States. Convictions such as common assault, mischief, and DUI are normally not of concern. However, Crimes of Moral Turpitude (crimes of dishonesty and crimes of violence where harm was intended) and Drug Offences will almost always make you inadmissible.  There are exceptions.

The USA does not recognize Canadian Pardons or Record Suspensions. Conditional and Absolute Discharges are treated like convictions and may still render you inadmissible even if no conviction resulted. You may also be denied for offences you admit to having committed even if no conviction resulted. Youth offences may make you excludable if you were tried as an adult for felony violence or felony drugs.

Criminal Inadmissibility even applies if the offence happened 30 years ago!  Once a conviction makes you inadmissible, it always makes you inadmissible. However, remember, not all convictions will get you banned from entering the USA–either because they are not excludable or the exception rule applies.

A United States Waiver allows you legal entry into the United States if you are inadmissible. Inadmissibility could arise due to a number of factors, including criminal inadmissibility (above) and other factors described below.  For your free consultation, click the button below.

Book an Appointment and Fee Schedule

Medical Inadmissibility – Though driving impaired and driving over .08 does not make you criminally inadmissible to the USA, multiple driving-related offences may make you inadmissible to the USA for medical reasons. You can also be denied for other medical reasons based upon your appearance or any prescription-related drugs you may have in your possession.

Other medical issues that can make you inadmissible to the United States include having a communicable disease of public health significance, being unable to provide proof of required vaccinations on request, a physical or mental disorder with associated harmful behavior, and drug abuse or addiction.

Though medical insurance is no guarantee that you will be let in, having proof of medical insurance may assure the border guard that you have the resources to pay for your medical expenses should you encounter medical issues in the United States.  If you are denied entry to the USA for medical reasons, you may be given an opportunity to get a medical test done to prove that your medical issues will not be a burden to the USA.

Illegal Work in the USA – If it is determined that you do not have enough funds to support your stay in the USA and/or you do not have a return ticket or job in Canada, you could be denied entry if it is suspected that you intend to work illegally in the USA.

You are allowed to enter the United States without a work visa for work purposes such as attending a business meeting or conference, to negotiate a contract or even to take orders for goods manufactured abroad on behalf of a Canadian or foreign company. If you are not sure if the work-related tasks you are performing require you to get a work visa, please call our office for a free consultation.

You need to do your own homework.  You can’t always trust that your employer will complete the paperwork properly.  Otherwise, you can be held personally responsible for the actions (or inaction) of your employer.

Illegal Immigration to USA (Intending Immigrant) – You could be denied entry to the USA if you are going to visit a new partner and there is not enough proof that you intend to return to Canada prior to the end of your authorized visit. Having proof of your residence and employment in Canada will help support the fact that your stay in the USA is only temporary and that you intend to return to Canada.

If you intend to stay permanently or are suspected of same, you must provide documents to prove authorization to do so, or you will be denied entry and deemed inadmissible.

Admission of Drug Use – If you admit to drug use, you can be denied entry. Use of an illegal substance is a crime in the United States, and even without a conviction they can deny you entry.  What should you say if asked “Do you smoke pot?” when crossing into the United States?  Click here for more information.

Improper Documentation – If you are not a Canadian (this includes Permanent Residents of Canada) you may require a visitor visa from the USA Consulate in order to visit the USA. If you fail to travel with the proper visa, you can be denied entry. To find out if you need a visa waiver, please CLICK HERE – VISA WAIVER.  Other visa requirements include Work Visa and Study Visa.

Traveling with an Inadmissible Alien – You could be denied entry to the USA if you are traveling with someone who is inadmissible to the USA. If you do it knowingly, you could be charged with harboring an illegal alien.

Immigration and Nationality Act Sec 212

The laws governing inadmissibility can be found here: Immigration and Nationality Act

How to Overcome Criminal Inadmissibility

Would you like more information on US Waivers of Inadmissibility? If yes, click the image to the right and obtain your free guide. What you will learn:

  • Definition of a United States Waiver
  • Travel Risks
  • What are Grounds of Excludability
  • What is a Crime involving Moral Turpitude
  • Summary vs Indictable offenses
  • Conditional and Absolute Discharges
  • Admitting to Drug Use
  • Traveling to the U.S. with a Pardon
  • Fact or Fiction? Myths About Traveling to the USA with a Criminal Record
  • 1 Yr, 5 Yr and Permanent Waivers
  • and much more!

Other Border Issues

Have you been ordered removed or deported from the USA?  Did you work or live in the USA illegally?  For these and other cross-border issues, please contact us.

Should I Admit Drug Use?

Admit Drug Use – Permanent Ban

Is it better to admit drug use to the United States Border Patrol?

Is it better to admit drug use to the United States Border Patrol?

If you admit to drug use at a USA port of entry, you may be denied entry. Why?  The United States Customs and Border Patrol (CBP) treat the admission of drug use the same as a conviction. Drug convictions over the age of 18 and indictable drug convictions between the age of 16 and 18 render you inadmissible to the United States on a permanent basis.   ***There are exceptions, see below. ***

You can overcome your inadmissibility by applying for a Waiver of Inadmissibility. However, waivers are only valid for a period of 6 months to 5 years. This means you will have to keep renewing your waiver if you want to continue to visit the United States regularly.

To answer the question “Should I admit drug use to a USA CBP officer?” or “should I lie about my past drug use?”, you should never lie or misrepresent yourself to a USA CBP officer. Be truthful. We will never counsel misrepresentation. I always tell people there are 3 things that the USA absolutely hates the most. They are drug trafficking, sex offences and lying to a CBP officer!  Some proponents argue that you should never admit to drug use.

Refuse to Admit Drug Use – Temporary Ban

The better question is: “Do I have to answer their question about drug use?” No, you don’t. You can refuse to answer the question. Ordinarily, it would result in a one-time ban and possible problems on re-entry in the future.

I believe being denied entry for failure to answer a question is preferable to a possible lifetime ban. However, it is only speculation as to which situation will result in a better outcome for your specific case.

Airport vs Land Port of Entry

It is better to be denied in Canada at an International airport—it is more difficult for a CBP officer to detain or arrest you.  But, you are on USA soil once you reach a CBP officer at a land border.  At a land border, a CBP officer is more likely to detain you longer, deny you washroom privileges and tear your car apart (for you to put back together).  Therefore, refusal to answer questions may aggravate the situation.

You need to think about the long-term impact of your answer.   I’m a Waiver Specialist. I’ve helped process over 2,000 applications.  As I’ve said, I can’t tell you what to say–meaning I can’t counsel misrepresentation. I can only tell you what you are expected to say.  But, I imagine a lawyer would tell you “don’t admit to anything” and “don’t sign anything”.  The choice is yours.

Exceptions to Bans

If you have a prescription for marijuana use for medical purposes (or other banned substance), you may not be denied entry for admitting to drug us or being in possession of marijuana (or other banned substance) for personal use while in possession of a medical prescription. HOWEVER, you run the risk of becoming medically inadmissible if the medical issue for which you are taking marijuana (or other banned substance) is of concern to the United States. That means, they could deny you for medical reasons if they think that your medical condition could cause you to be a burden on the USA health care system.  In a case like this, it is helpful to carry medical insurance to ensure that you are adequately covered—but it is no gaurantee that you will be permitted entry.

Trigger

Once the border guard goes down any particular path that could lead to your refusal, they often will check other things that may lead to refusal including (a) do you have a return ticket (meaning is your stay in the USA really only temporary; (b) do you have the means to support yourself while visiting the United States; (c) do you have a job to return to or other ties to Canada.  Basically, once border guards become concerned for any particular reason, they often go through many more checks than they would otherwise. For example, I once had a client who proved she was not inadmissible for drug use because she had a medical prescription, but they determined she had a one-way ticket, was going to the USA for the winter to enjoy the hot sunshine because the hot weather was less aggravating for her medical condition and she was being supported by her parents. They felt she could become a financial burden in the United States as there was no way to gaurantee her parents would continue to support her or that all of her medical expenses would be covered. So, they denied her and deemed her medically inadmissible. Once inadmissible, she has to correct the situation that made her inadmissible, show that an error was made when denying her, or apply for and receive a U.S. Waiver due to medical inadmissiibility.

What Can I Do If I am Denied Entry?

To summarize, if you admit drug use or you refuse to answer their question, the outcome will be unfavorable.  You may be denied entry one-time only or you may be banned permanently.  Depending on your situation, there are four possible remedies:

  • Make a redress complaint;
  • Apply for a Waiver of Inadmissibility;
  • Request a Non-inadmissibility letter (a ruling that the incident does not make you inadmissible); or
  • spend your travel dollars somewhere else!

We strongly recommend that you be polite and respectful in all cases. If you have cross-border issues, please call. We can help. Contact us, if you need our assistance on this or a related matter.

Am I banned permanently?

In a 1957 court case (Matter of K-), the Board of Immigration Appeals stated that the following steps must be followed before an individual can be found inadmissible:

  1. the individual must be given a definition of the offense with all essential elements; and
  2. the individual must be given an explanation of the offense in layperson’s terms.

The statute does not make someone inadmissible if they admit drug use. Rather, a person becomes inadmissible for admitting to breaking a statute related to a controlled substance. However, a person can only be found to be inadmissible if these requirements are satisfied:

  1. DHS identify the laws violated;
  2. the person was given an explanation of the elements of the crime; and
  3. the person admitted to all these elements in Affidavit form, signed under oath in the presence of a Customs and Border Protection (CBP) officer.

That means if the elements do not all occur on your refusal or you refuse to sign the Affidavit, your refusal may be one-time only. Rather than sign the Affidavit, you may instead request to withdraw your application for admission.

Legalization of Marijuana

It will be interesting to see what happens when marijuana use becomes legal in Canada.  Currently, marijuana use is legal in some US States, but is not legal on a Federal level.  The admission of visitors to the USA is controlled on a Federal level and it is Federal laws which make drug violations excludable offences.  This is why you are inadmissible to the USA if you admit to marijuana use even if marijuana use is legal in the State you are visiting.

What do others have to say on the matter?

It has been argued that the new policy from DHS does not satisfy “corpus delicti” (a crime must be proved to have occurred before a person can be convicted of committing that crime). I guess the question remains, is a confession but not a conviction sufficient to exclude a person? It seems DHS is taking that view.

As well, the statute of limitations may apply. For example, in Canada a person can’t be charged more than six months after the commission of the summary offence in question (pursuant to Section 786(2) of the Criminal Code of Canada) whereas there are no limitations for indictable offences.

The Canadian Government has expressed strong objections to this latest DHS policy. Public Safety Minister Ralph Goodale said in an interview with the CBC, “We obviously need to intensify our discussions with our border authorities in the United States, including the Department of Homeland Security” and “This does seem to be a ludicrous situation”.

Tell Us Your Stories

Feel free to share your experience below.

United States Waiver of Inadmissibility

Seal your criminal record with Record Suspension

In addition to a Record Suspension, you may need to consider other applications such as a US Travel Waiver, Nexus Card or Purge Services.

According to the Parole Board of Canada, a Canadian Pardon (now called Record Suspension) is not recognized outside Canada. Specifically, they state: “Many foreign countries, including the United States (U.S.), do not recognize a Canadian Pardon. If you have a criminal record and are interested in going to the U.S., you may want to apply for a United States Waiver (American INS Waiver).” For more information, visit: United States Waiver.

Frequent travellers may need a US Waiver and Pardon (or Record Suspension) to qualify for a Nexus Card so that they may avoid long line ups when entering the United States.

According to the Parole Board of Canada:

Because a Pardon is awarded under Canadian Law it does not have legal force outside of Canada. The authorities of foreign countries can not be compelled to delete or withdraw criminal record information from their own records. Although a Pardon can be considered a positive factor, it does not guarantee entry on foreign soil.

Travelling to Other Foreign Countries with a Criminal Record

Most countries will not inquire as to whether you have a criminal record when travelling to their country unless you plan to (a) visit their country for more than 6 months; (b) immigrate to their country; or (c) obtain a work visa for their country. You will need to check the Consulate of the Country to which you are travelling to determine if your record will prevent you from entering. This obstacle will be removed once you obtain a Canadian Pardon or Record Suspension in most cases.

NOTE: If you are inadmissible to the United States, you cannot travel to a foreign country via stop-over in the United States unless you have a Waiver of Inadmissibility.

Can my pardoned or suspended file be disclosed to the United States or other countries?

According to the Parole Board of Canada, the Solicitor General may choose to disclose a pardoned file (or Record Suspension) to the United States or any other country without your consent or knowledge. They specifically state:

Under the CRA, only the Solicitor General of Canada has the authority to disclose information from a pardoned Record…if satisfied that the disclosure is desirable in the interests of the administration of justice or for any purpose related to the safety or security of Canada or any state allied or associated with Canada.

According to Sec. 212(a)(6)(i) of the United States Immigration and Nationality Act[8 U.S.C. 1182], misrepresentation is defined as:

In general – Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

According to McWhirter, R.J. (The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers, Alberta Bar Association: 2006, 2nd Ed., p. 261.),

…denying a criminal conviction violates 18 U.S.C. § 1546.

Can I Obtain a Passport?

According to Passport Canada:

The fact that a person has a criminal record will not necessarily prevent that person from obtaining a passport. We examine all passport applications and establish eligibility on a case-by-case basis.

It is my experience your passport would only be denied if you are serving or facing a sentence that prohibits travel or if a restriction was placed on your passport due to unpaid child support.

Possessing a passport does not guarantee you entry privileges into another country and does not help you overcome grounds for inadmissibility. When your Passport is scanned at a port of entry of a foreign country, it is being scanned to see if it is valid or if it has been reported stolen. It is not ordinarily linked to a criminal record. U.S. authorities would typically have to go to a different database to see if you have a criminal record, unless your passport was previously linked by them to a criminal record.

CAUTION:  The United States Border Pre-Screening Officer may decide to check for a criminal record upon entry, at some point during your trip, or long after your trip. US Authorities may store biographic information about you which was obtained from your passport upon entry and search for a criminal record at a later date.  Illustration:  I’ve had clients pass US Pre-Clearance at an International Airport in Canada, arrive at an International Airport in the USA (ie. Hawaii) only to immediately be deported back to Canada on the next available flight (or spend the night in jail if no flight is available until morning).

Must I Disclose my Suspended Criminal Record?

Must I disclose my Pardon or Record Suspension?

Must I disclose my Pardon or Record Suspension?

When it comes to employment applications, the best policy is to tell the truth. However, do not volunteer information if it is not absolutely required. The following is a general guide in navigating employment applications and interviews:

  • A Canadian Record Suspension seals your criminal record. It does not erase the fact that you had a criminal record. If asked, “Have you ever been arrested, charged, convicted, pardoned, or received a Record Suspension”, then the correct and truthful response is “Yes, I was convicted. However, I have since been granted a Canadian Pardon (or been granted a Record Suspension).”
  • Most employment applications ask “Do you have a criminal record for which you have not been pardoned (or received a Record Suspension)”. In these cases, once pardoned or suspended, you can truthfully answer “no”. However, in some employment situations, an employer will demand that you disclose a pardoned or suspended record (primarily jobs involving vulnerable people and high security).
  • A Pardon or Record Suspension is not perfect. It helps in many, but not all, situations. Most employers do not ask individuals to disclose a pardoned or suspended record unless related to a position involving the vulnerable sector.

You might think that having a Record Suspension or Pardon gives you the right to deny having had a criminal record, meaning it is “not really a lie”.  Companies under the jurisdiction of the Federal Government (i.e. Federal Government employment) will NOT normally ask you to disclose a pardoned or suspended record UNLESS you are applying for a job in the vulnerable sector (ie. with children, sick or elderly).  However, companies not under the jurisdiction of the Federal Government (i.e. private or public company that is not a government office) still have the right to ask you to disclose a pardoned or suspended record.  FORTUNATELY, many non-government offices also do not request the disclosure of pardoned or suspended records, unless they work with the vulnerable sector.

As a result, having a pardoned or suspended record helps in many cases–but not in every case.

Must I Disclose a Suspended File to a Foreign Country?

When it comes to disclosing information to foreign countries, it is absolutely imperative that you are forthcoming. Lying to a government official can result in fines and even jail time!

Some companies will advise not to disclose a pardoned or suspended file to a foreign country. They are counselling misrepresentation and can get themselves and you into trouble. You have a criminal record (pardoned or suspended). It is (or should be) your goal to put it behind you for good—misrepresentation does not accomplish this. If you are inadmissible to the United States, the proper and legal thing to do is to apply for a Waiver for legal entry.

Not ALL convictions render you inadmissible to the United States.

Free Consultation

For your free consultation, please contact us.

A Record Suspension Does Not Eliminate Discrimination in all Cases. Here is a List of Some Limitations:

  • A Record Suspension (or Pardon) may not be recognized by a foreign country and may not guarantee that you will be granted entry privileges.
  • A suspended record does not erase the fact that you were convicted of an offence.
  • A Record Suspension does not return to you driving privileges or the ability to possess a firearm (if prohibited from having a Driver’s Licence or firearm).
  • Courts and Police Services (excluding RCMP) are governed by provincial and municipal legislation. Though they are not obligated to keep pardoned and suspended files separate from other convictions, most will.
  • If other persons, agencies or foreign countries have details of your criminal record, they will not be asked or required to remove it. A separate request may be required to have local police purge criminal-related information, including arrest records.
  • The police have the authority to retrieve suspended sex offences during employment and volunteer pre-screening involving work in the vulnerable sector. If a civil search or search of a pardoned or suspended record results in the finding of a sex offence, a police clearance certificate will not be issued and employment or volunteering will not be allowed with the vulnerable sector.
  • A Record Suspension will most likely be revoked if you re-offend. Further, if you are facing charges before court, a suspended record can be opened and presented before the courts as prior offences can affect the outcome of sentencing.
  • If your court case was published on the internet, it may not be removed without a court order.

Where Can I Get a Vulnerable Sector Search in Calgary, Alberta?

Vulnerable Sector Search in CalgaryFingerprinting service has been privatized in Calgary.  That means for MOST cases, you must go to a private fingerprinting agency (like ours) for most of your fingerprint services.

HOWEVER, you must go to the Calgary Police Service to get a vulnerable sector search. Do not go to a private fingerprinting agency for a Vulnerable Sector Search.

For more information about Calgary Police Vulnerable Sector Search click here:

You may also download and print the Calgary Police Service instructions here:

What is a Vulnerable Sector Search?

This question is answered in great detail by the RCMP. Their definition of a vulnerable sector search is as follows:

“A vulnerable sector check is an enhanced criminal record check. This type of record check was created in 2000 to protect children and vulnerable persons and is governed by section 6.3(3) of the Criminal Records Act. Policies and procedures related to vulnerable sector checks can be found in the Dissemination of Criminal Record Information policy and the Ministerial Directive Concerning the Release of Criminal Record Information by the Royal Canadian Mounted Police.”

Vulnerable sector checks are used to verify if an individual has a Record Suspension (formerly Pardon) for sex offenses. They also include checks of national databases maintained by the RCMP and local police records where the applicant lives.

For more frequently asked questions about a vulnerable sector search, go to the RCMP website here:

Services Provided by Canadian Legal Resource Centre Inc.

  • Ink and Digital Fingerprinting Services (excluding Vulnerable Sector Searches);
  • Uncontested Divorces and Legal Separation Agreements;
  • Record Suspensions (Pardons) and U.S. Waivers of Inadmissibility
  • Commissioner for Oaths

Also available at our location, by appointment:  Notary Services, Lawyer Services, and Passport Photographs.

About the Canadian Legal Resource Centre Inc.

  • We are one of the longest-running fingerprint agents in Canada. We’ve been fingerprinting since 1995.
  • We are RCMP Accredited and Certified Fingerprint Agency.
  • We’ve won the Consumer Choice Awards.
  • We assist with a variety of paralegal services.
  • We have helped over 30,000 people since 1995.
  • We pride ourselves on providing fantastic customer care.

 

TOP OF VULNERABLE SECTOR PAGE

C-216C RCMP Fingerprint Processing Times

Calgary Fingerprint

How Long Will it Take For My Fingerprints to be Processed?

STEP #1:  Ink Digitization or Digital Fingerprinting

We digitize your ink fingerprints and submit them to the RCMP instantly within one working day of receiving them.  For applicants attending our office, we take your fingerprints electronically and submit the prints instantly at the time of the appointment.

STEP #2: RCMP Fingeprint Processing Times

RCMP processing times vary depending on whether you need a regular search or privacy search.  The regular search results in a Certified Criminal Record Background Check and is required for most official purposes (i.e., Immigration, US Waivers, Record Suspensions).  The only time you ordinarily request a Privacy Act Search for a Pardoned (or Suspended Record) is if you have a criminal record that has been pardoned or suspended and you would like a copy of it.

A Non-Certified Criminal Record search is typically ordered if you have a criminal record that has NOT been pardoned or suspended and you want quick results (for example, when you need to order court documents right away or need advice based upon the contents of your criminal record).  A Certified Copy takes over 120 days to obtain, but a Non-Certified copy typically takes less than two weeks.

Electronic Fingerprinting

  • Regular:  You Have No Criminal Record: 3 business days or less
  • Regular:  There is a match to a Criminal Record: 120 days or more
  • Privacy Act Search for Pardoned (or Suspended) Criminal Record: 2 weeks or less
  • Privacy Act Search for Non-Certified Criminal Record: 2 weeks or less

    Note: You must also add time for mail delivery (see below)

Ink Fingerprinting

  • The RCMP will accept ink fingerprints for processing ONLY if your fingerprints are non-classified and cannot be successfully read by the Digital Fingerprint technology.
  • Processing times are 120 days or more.

STEP #3:  Ordinary Mail Delivery

The RCMP will only send the results to you by ordinary mail through Canada Post  Canada Post processing times from Ottawa, Ontario is:

  • Delivery to an address in Canada:  3 to 5 business days
  • Delivery to an address in the United States:   4 to 6 business days
  • Delivery to other countries:  4 to 7 business days

Delivery times outside of Canada are estimates and are not guaranteed by Canada Post.

How to Convert Ink to Digital Prints For Fast Processing

Unable to attend an office in Canada for electronic fingerprinting? Your only option is to have ink fingerprints taken and forwarded to an RCMP Accredited and Certified Fingerprint Agency in Canada with the technology to digitize them.

Contact Us: Ink to Digital Fingerprint Conversion Service

How to Improve RCMP Fingerprint Processing Times for Fingerprint-Based Criminal Record Background Checks

  • Mail-in Method: If you are unable to attend for digital fingerprinting, you can get ink fingerprinted, and then we can convert to digital and remit electronically to the RCMP. Please contact us for the specific ink to digital fingerprinting instructions (select the link above).
  • FPS Number: If you have a criminal record and know your FPS number, sometimes inputting this number into the system can result in faster processing.

Miscellaneous Obstacles that Can Slow Down the Processing of RCMP Fingerprint Form

  • Sex Offender Registry: Your date of birth and gender matches a sex offender (extra steps are in place to ensure you are not the same person).
  • Investigation in Progress: A person may have been identified in a crime with a similar name. The RCMP can delay the release of the results of your search until they rule out you are not the person in question.
  • Poor Fingerprint Quality: There is nothing we can do to improve the quality of your fingerprints if your fingerprints are heavily wrinkled or worn.

NOTE: The RCMP will NOT disclose reasons for delays other than to indicate your ‘request is being processed’. In a case like this, all we can do is confirm: (a) they have your request; (b) the date they received your request; and (c) that it is being processed.

Moved or Wrong Address

  • If you move, please arrange with Canada Post to have mail re-directed to your new address (if the results of your search are being mailed to you directly).
  • If your request is taking longer than usual, please contact us immediately. But, please DO NOT inquire if the minimum amount of time has not passed.

Emergency / Expedited Processing

  • No fingerprinting agency can promise faster processing than another company. The RCMP does not accept requests for emergency or expedited processing under any circumstance. Furthermore, we all use a digital system that transmits instantly to the RCMP—no one system results in faster or better processing than another.

Top of RCMP Fingerprint Processing Time Blog

Prisoner-in-Spotlight-FB-large

Update on the Pardons Backlog

According to the Government of Canada’s website (https://www.canada.ca/en/parole-board/services/record-suspensions/update-on-the-pardons-backlog.html)

As of November 30, 2016, there are no unassigned pardon files remaining in the pardons’ backlog, meaning, all files are at the investigation stage.

The Parole Board of Canada remains on target for clearing the backlog of pardon files by March 31, 2017.

 Learn About the Parole Board NEW Discretionary Power
to Deny Record Suspensions

 

To receive your Free Copy of our Record Suspension Strategies Report Click Here

Could you imagine if the Canadian Pardon program was cancelled forever? It would be a travesty of justice.

You can listen to this episode and download its mp3 from my podcast for free: http://traffic.libsyn.com/canadianlegal/RecordSuspension.mp3

Erase your CRIMINAL RECORD
and its Devastating Effect on your Future.

Criminal Record?

The Parole Board of Canada is proposing to SCRAP Canadian Pardons and Record Suspensions forever! Is this FACT or FICTION? Read on and see what you must do immediately.

An audit of our client files revealed the following shocking information… On average, our clients wait 9.3 years AFTER they are eligible to apply for a Pardon. Why do clients wait for so long?  Why don’t they APPLY for a Record Suspension/Canadian Pardon as soon as they are eligible?

Our survey shows that the top THREE reasons our clients procrastinate are…

  • It costs too much MONEY.
  • The processing time for a Canadian Pardon (now called Record Suspension) is TOO SLOW and cannot solve their immediate concerns.
  • They saw no significant benefit in getting a Record Suspension.

BUT, when they did finally get their Record Suspension, when asked: “Did they REGRET waiting for so long to apply?” Overwhelmingly…the answer is “YES”…they wished they had applied sooner.

Does a Record Suspension REALLY Cost Too Much?  Or, Does INACTION Cost you More?

Studies show that without a Record Suspention / Canadian pardon, you can expect to earn 40% less!Studies show that without a Record Suspension, it will take you longer to get a job and, when you do get a job, you’ll earn up to 40% less.

Getting a job is also not easy.  Background checks are increasingly becoming the norm. If you have a criminal record, you will be earning up to 40% less, being overlooked for promotions, and take longer to find that next job.

Not having a Record Suspension can also force you to take a job you don’t want or force you to stay in a dead-end job due to the restrictions of having a criminal record. For many, the cost of a Record Suspension is less than one week’s wages—you’ll quickly realize you can’t afford to NOT get a Record Suspension.

Is the Parole Board Really SCRAPPING Canadian Pardons & Record Suspensions?

There is MISLEADING information circulating the internet.  Ever since the Harper Government handed down their new “tough on crime legislation”, the internet has been buzzing with speculation that the program is being cancelled.

The good news is the Parole Board is NOT scrapping Pardons.  However, on February 22, 2012, the Parole Board of Canada changed the name from Pardon to Record Suspension.

 

To Pardon means to ‘forgive’.  They changed the name to Record Suspension because they are no longer in the business of forgiveness. Some serious offenders are now banned from applying…this also means they may have trouble getting employment.  Doesn’t this put them at greater risk of re-offending?  Sounds backwards.

You now have to wait longer to qualify for a Record Suspension…even though less than 4% of Pardoned people ever re-offended under the old rules. That means we are punishing 96% of the applicants with tougher rules for the less than 4% who had re-offended. The Parole Board fee increased from $150 to $631. (Subsidies to the program have been cancelled.) What is even more alarming is that the Parole Board has been given new powers to deny a Record Suspension at their discretion if they feel it would simply be offensive to give you a Record Suspension, even if you meet the eligibility requirements.

All of these new changes are because of the Harper Government’s support of U.S. style “tough on crime legislation” which studies have proven DO NOT WORK. Just ask the State of Texas… it did not work for them and they pleaded with the Canadian Government “DON’T DO IT!”

Why Did we Begin with the Idea that Canadian Pardon & Record Suspensions are Being Scrapped?

There are two reasons.

  • First, we wanted you to see the consequences of NOT getting a Record Suspension at the earliest opportunity. Too many of our clients procrastinate far too long before applying for a Record Suspension…and they regret it. We want to STOP procrastination.  We’ve learned we’re not really in the Record Suspension/Canadian Pardon business as much as we are in the “Overcoming Procrastination” business! Second, rules around getting a Record Suspension continue to get TOUGHER.
  • We had to figure out some way for you to view the alarming statistics about your financial future and alert you to the dangerous trends caused by “tough on crime legislation”.  Even though the Canadian Pardon program has been renamed and is harder to qualify for, it is becoming even more urgent that people stop procrastinating.

Pardons were once subsidized by the government because people with criminal records often did not have a job.  Now that subsidies have been removed, many people with a criminal record put off getting a Record Suspension because of the high cost!

The criminalization of poverty is the subject of another article… but the bottom line is that people with a criminal record who are desperate to get a job often THINK they cannot afford a Record Suspension.

This is NOT true. There is HOPE.

Start your Record Suspension immediately. Call us today for a free consultation.

Welcome to the Canadian Legal Resource Centre. We have over 45 years of combined experience working with Pardons and Record Suspensions. The Canadian Legal Resource Centre has won the Consumer Choice Awards for Business Excellence in the category of paralegal services for each of the past 12 years. We are members of the Chamber of Commerce and enjoy an A+ Reputation with the Better Business Bureau. We celebrated 22 years in business in January 2017.

We are also a RCMP Accredited & Certified Fingerprint Agency. What are you waiting for? Call us today during office hours. (403-229-2774)

“We believe in forgiveness. We believe in YOU! “

–Debbie Ward, President of Canadian Legal Resource Centre.

Learn How Criminal Pleadings and Elections can Affect Your Record Suspension Eligibility

A gavel depicting canadian pardon eligibilityThis information is for you if:

  1. you are facing criminal charges in Canada; or
  2. you are representing someone who is facing criminal charges (ie. lawyer, paralegal for summary offenses, or duty counsel).
  3. you want to understand how pleadings (ie. guilty or not guilty), elections (ie. summary or indictable) and sentences (ie. 1 year probation vs 3 months probation) will impact your ability to travel to the United States and Record Suspension eligibility date.

How Criminal Pleadings Affect Criminal Record Suspension Eligibility

You can apply to have your record sealed in Canada (for convictions within Canada) with an Application for Record Suspension after you have completed the required waiting periods. The waiting period you must wait before qualifying for  Record Suspension Eligibility does not begin until AFTER you complete your entire sentence (even if released from it early). Here are some tips to negotiate a sentence that you can complete as soon as possible:

Negotiate a sentence that can be completed as soon as possible. Your Record Suspension eligibility starts as soon as all conditions and restitution are complete.

Probation – To illustrate, if convicted of assault and the possible sentence in your case is probation of 1 year, you might request a shorter probationary period of say 3 months in exchange for attending an anger management course and donating money to a Women’s Shelter.

How does it affect an Application for Record Suspension? You must wait 5 years after completion of the sentence before you can submit an application for a summary offense as follows:

Scenario 1: 1 year probation + 5 year waiting period = 6 years

Scenario 2: 3 months probation (plus anger management and donation to women’s shelter completed within the 3 month probationary period) + 5 year waiting period = 5 years and 3 months.

In Scenario 2 you can apply for a Record Suspension 9 months sooner if you are found or plead guilty to this offence if it is tried as a summary offence. NOTE: the waiting period was recently changed from 3 years to 5 years (Bill C-10 Crime Bill / Amendment to Criminal Records Act). If convicted of an indictable offence, the waiting period is 10 years pursuant to the new rules (it was 5 years previously).

Restitution and Fines – Pay these as soon as possible as the waiting period does not begin until paid. I had a client that was given 5 years to pay a large restitution order. Rather than refinance his house immediately and satisfy it, he thought it financially prudent to wait till near the end of the 5-year deadline to pay so as to avoid extra interest payments on his mortgage. He did not realize this delayed his ability to apply for a Record Suspension until it was too late. Once he satisfied his large restitution payment, he then commenced an application for Pardon only to learn he had to wait an additional 5 years due to his delay in satisfying his restitution.

Immediately Obtain Proof of Payment of Fine, Restitution or VFS as Soon as Paid

Immediately obtain proof from the Courts when any sentence (fine, VFS, restitution) is satisfied. You do this for the following two reasons:

  1. To ensure you fully understood and satisfied 100% of your sentence; and
  2. To ensure the Courts documented properly the fact you fully satisfied your sentence.

I have processed well over 2,000 Record Suspension Applications (previously called Canadian Pardon) and have come across countless files where clients have missed completing part of a sentence in error or insist that they satisfied it, only to be told by the courts years later when applying for a Record Suspension (or Pardon) that it was not satisfied. They then have to satisfy it and then wait the full waiting period (5 years for summary offences and 10 years for indictable offences). This effectively reset their Record Suspension eligibility waiting period! The Parole Board of Canada rarely accepts an application with a request for leniency due to the error. This can cause considerable delays in Record Suspension eligibility. It can be frustrating when the individual insists it was paid and there is not enough evidence to prove a court administrative error.

Request to Pay Victim Fine Surcharge through the Courts

Is money owed directly to a Victim? Ask if it can be paid to the Victim through the Courts. You don’t want to have to contact the “Victim” years later to obtain proof that you paid the restitution as ordered when applying for a Record Suspension. This can be offensive to the Victim and he or she may be tempted to deny the fact that you paid the restitution in order to be re-compensated. Or, simply, the Victim may be un-reachable or may refuse to give you the confirmation you seek. If you’re unable to get confirmation, it may affect your Record Suspension eligibility and you could be forced to re-pay it and then wait the 5 or 10 year waiting period before qualifying for a Record Suspension. Sometimes there are exceptions–but it can be difficult to deal with.

United States Waiver of Inadmissibility

Some individuals may choose to plead not guilty when they realize the long-term consequences of having to apply for Waivers and the possibility that they may not be able to obtain legal entry to the United States for at least 5 years.

  • some convictions render you excludable to the United States.
  • the United States treats discharges the same way they treat convictions.
  • if convicted or discharged, it may be upwards of 5 years or more before the United States considers granting you a U.S. Waiver of Inadmissibility so that you can gain legal entry.
  • if convicted and your record makes you excludable to the United States, it could cost you thousands of dollars plus consume a lot of your time applying for Waivers throughout the rest of your life (they are currently only granted for period of up to 5 years).
  • Individuals convicted of sex offences or serious drug offences may now have to spend upwards of $5,000 on Psychological Testing by a DHS Approved Panel Physician.
  • NOT all convictions make you excludable. In some cases, if you only have one excludable offence (not drug-related), you may be exempt from having to apply for a Waiver if the crown proceeded summarily and the maximum potential sentence does not exceed one year and you were not sentenced to 6 months or more in jail. Therefore, in some cases you might negotiate a plea of ‘summary’. To find out if your potential conviction renders you inadmissible, please call!

Discharges

You will find an explanation of what a discharge is in this excerpt from the Canadian Criminal Code:

730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused by discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

Though not a conviction, it is still evidence of guilt because the accused ”pleads guilty to or is found guilty of an offence.”An absolute discharge will appear on your criminal record for one year and a conditional discharge will appear on your record for 3 years.

CAUTION: The discharge will show up in employment pre-screening or at U.S. border crossings during the one or three year period that the discharge appears on your record. And, if your discharge is not automatically purged after the one or three year period, the discharge will appear on your record until you write to the RCMP to have it purged.

Having a discharge can affect you the following ways:

  • It is still evidence of guilt.
  • It appears on your RCMP record for one year (if absolute) or three years (if conditional), following which it is either purged or you have to request in writing to have it purged.
  • A discharge may prevent you from gaining legal entry to the United States if it is an excludable offence. Waivers can cost thousands over your lifetime. And, it is possible that if you need a Waiver it will not be granted until at least 5 years have passed since the alleged offence was committed.
  • The discharge will show up on a criminal records check for employment, volunteering, adopting, etc. until such time as it has been purged.

Most lawyers know that discharges are purged automatically after one year for absolute discharges and after three years for conditional discharges. However, if other charges were withdrawn or dismissed at the same time, this could result in an ‘incomplete’ purge of the RCMP Record, meaning the discharge was purged but entries in the computer database showing withdrawn or dismissed charges remain. As a result, the FPS number associated with the criminal record remains. Here is what happens:

  1. A 48 Hour Name Search (criminal record search based upon name and date of birth) will reveal “there may be a criminal record” which can only be verified by fingerprints.
  2. A fingerprint based criminal record search for employment will reveal that there is a police file, but no information will be provided leading others to know that a record did exist. The only way to correct this is to contact the arresting police and ask them to notify the RCMP to purge the withdrawn/dismissed charges, a process which can take upwards of 6 months and delay employment opportunities.

SUMMARY / FINAL COMMENTS:

  1. If pleading guilty or negotiating a particular sentence and method of trial (summary or indictable) keep in mind how it affects Record Suspension eligibility and life time cost of obtaining U.S. Waivers of Inadmissibility.
  2. I have had countless clients whose ability to obtain a Record Suspension or Pardon was delayed because of the type of sentence they received, failure to satisfy an entire sentence or due to a possible court error where the courts insist a sentence was not satisfied when perhaps it was.
  3. I have had many clients wish they pursued the “not guilty” option once learning of their lifetime inadmissibility to the United States, difficulty in obtaining a Waiver within 5 years, and time/money to apply for Waivers over their lifetime.

For more information, please click the following links:

Request for Referral

We would be pleased to receive your referrals for Record Suspension and U.S. Waiver Applications.

We have processed over 5,000 applications for Pardons (now called Record Suspensions) and US Waivers (the owner has 25 years of experience, and the company has been in business since 1995).

We are leading experts in the industry and provide exceptional customer service–we have combined office experience of 50+ years, all files are handled promptly and on-time, and clients can always reach an actual employee in a few short rings any time they call during office hours (we always have the phones ring live as we are not fans of automated voice systems).

We also provide on-site ink and electronic fingerprinting services.

How to Understand the Criminal Offence Penalty Chart

The following criminal offence penalty chart has been published with permission from Ron Jourard, criminal lawyer. Determining whether a particular offence has been prosecuted by summary conviction or indictment requires a review of the actual court documents as the Criminal Code of Canada has been amended several times. Whether an offence is summary, indictable, or hybrid (meaning it can be tried summarily or by indictment), is determined by the law at the time the charge was laid. The Chart below offers a general guideline but may not apply to your particular situation.

If you were convicted of a hybrid offence, you will need to order your court document to confirm if your conviction was tried summarily or by indictment.  Alternatively, if your sentence exceeded the maximum penalty if tried summarily, then you know it was tried by indictment.  This also applies to Conditional Discharges.  Though most Provinces might deem a conditional discharge to be a summary offence unless an election is made, the United States authorities may determine it to be an indictable offence.

If you agree to accept a Conditional Discharge, technically, you are not convicted.  Accordingly, the courts or your lawyer may not think to ask the courts to make an election “summary” or make a notation on the court records that the offence is considered to be summary, even though you are NOT being convicted.  By default, it could be considered an indictable offence to US authorities even though you are NOT convicted.  Some Provinces may treat all discharges as summary offences, but this is not always the case.

What difference does it make if it was tried summarily or by indictment?  If convicted, it will affect when you are eligible to apply for a Canadian Pardon  (now called Record Suspension).   A determination of whether or not your offence OR discharge is summary may affect also your ability to travel to the United States.  If it is determined you are inadmissible to the United States, you will need a US Waiver for legal entry.  First, review the Criminal Offence Penalty Chart below.  Then review the following links:

For information on pardons, waivers, fingerprinting, background checks and immigration, please contact the Canadian Legal Resource Centre Inc. at 1-800-320-2477.


Criminal Offence Penalty Charts

Compiled by Ron Jourard

This article last updated February 16, 2012

 Criminal Offence Penalty Chart - Driving Offences

Criminal Offence Penalty Chart - Crimes of Dishonesty

Criminal Offence Penalty Chart - Weapons Offences

Criminal Offence Penalty Chart - Threats of Violence

Criminal Offence Penalty Chart - Drug Offences

Criminal Offence Penalty Chart - Administration of Justice

Criminal Offence Penalty Chart - Sexual Immorality

Ron Jourard, author of the above criminal offence penalty chart, is a Toronto criminal lawyer. He can be reached at (416) 398-6685 or toll free (Canada and U.S.) 1-888-257-0002, or by email at jourard@defencelaw.com.  For information on pardons, waivers, fingerprinting, background checks and immigration, please contact the Canadian Legal Resource Centre Inc. at 1-800-320-2477.

Criminal Offence Penalty Chart Amendments

If you notice any changes/errors with the above criminal offence penalty chart, please contact our office.

Click Here to Contact Us

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What you Need to Know Before you Travel with a Criminal Record

Visiting Canada with a Criminal Record

Can I Travel with a Criminal Record?

Eliminate Obstacles Caused by Having a Criminal Record

Do you want to visit Canada? You may be inadmissible if you have a criminal record. To gain legal entry into Canada, here are your options:

#1. Obtain a Record Suspension if your criminal record is in Canada.

Click here to learn more about Record Suspensions (Previously called Pardons)

OR, for a Free Consultation on Record Suspensions, click the “Free Consultation” button at the bottom of this page.

#2. Apply for Criminal Rehabilitation if (a) you were ordered removed or deported from Canada; and/or (b) you have a criminal record outside Canada.

Check out this Company if You Wish to Apply for a Criminal Rehabilitation

Canada Immigration and Employment Consulting Services Inc.
203, 4014 Macleod Trail SE, Calgary, Alberta CANADA T2G 2R7
403-398-7203
info@ciecsi.com

Visiting the United States with a Criminal Record

If you are a Canadian with a Criminal Record, you may need a U.S. Waiver of Inadmissibility. Please check here for more information:

United States Waiver of Inadmissibility

Were you denied entry to the United States because of a criminal record and told that you need a U.S. Waiver of Inadmissibility? If yes, this does not mean that a U.S. Waiver of Inadmissibility is your only option. A review of your criminal record and court documents may reveal that you are NOT inadmissible after all. Instead, you may need to apply for a Non-Inadmissibility Letter. Please note that US Border Guards rarely explain this second option. Do not apply for a Waiver on your own. Hire an expert as an expert can sometimes help you remove your inadmissibility or assist you in improving your chances at a favorable review of your application (ie. minimize the risk of denial of your application or assist you in getting a waiver for the longest period of time possible). Contact us for a free consultation.

If you are a visitor to Canada, Permanent Resident in Canada, or individual from a Visa/Waiver Country, you may need to apply for a Visa/Waiver through the US Consulate instead. Please click here for more information:

Visa/Waiver Program

Summary

You arrived at this site because you need a criminal record background check in Canada. It is important to understand that if you wish to visit Canada and you have a criminal record, you may need to apply for a Record Suspension (if your criminal record is in Canada) or Criminal Rehabilitation (if your criminal record is outside Canada or you were ordered removed or deported). Some people request background checks in Canada for an Application involving a United States Waiver. Before proceeding with a Waiver, you really should consult with an expert. Please contact us below for your free consultation.

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What are the Five Types of Calgary Police Checks?

How to Get a Calgary Police Check

What Type of Criminal Record Search do you Need?

A Calgary Police Check is also known as a Criminal Record Check, RCMP Background Check, Name Check, Police Clearance, Background Check, Security Clearance or Backcheck or Vulnerable Sector Search.  In fact, there are five types of Police Checks that you can request in Calgary.  It is important that you know what type you need in advance of requesting a Check to ensure that the proper one is conducted. Some can only be completed by the Calgary Police and some must be completed by a private fingerprint agency.  Some fingerprinting and background check services have been privatized, which is why you can no longer go to the Calgary Police for all of your services.

All five checks are available all across Canada.  If you do not live in or near Calgary, then you’ll probably have to investigate how to get the proper search done for the region you live in.  We provide free consultations if your search is in relation to one of the following:

  • you have a criminal record or conditional discharge (we provide services in this area across Canada);
  • you need fingerprinting or background check services in Calgary; or
  • you are outside Canada (we assist individuals outside Canada with background checks in Canada).

Private Background Checks

Private background checks are background checks that can only be completed by Private Fingerprint Agencies.  In Calgary, you need to go to an accredited and certified fingerprint agency if you need one of the following two types of checks:

#1.  48 Hour Name Check

In reality, a 48 Hour Name Check completed in Calgary is really a search of the National RCMP Canada.  All police voluntarily register most convictions on the National RCMP database.  So, rather than search local databases which only contain local information, a search of the National RCMP database is made.  Applicants do not have the option of which database is searched, meaning a search of the National RCMP database is the only option.

A 48 Hour Name Check is a criminal record background check that is based upon a search of your name and date of birth only.  The benefit of this type of search is that it is normally completed within 48 hours.  It is fast.  The results will reveal one of the following:

  • there is no criminal record associated with the applicant’s name and date of birth; or
  • there might be a criminal record which can only be verified if the applicant submits a set of fingerprints.

There are 2 possible risks for the employer with 48 Hour Name Checks:

  • the employee may not have provided all of their names during the screening process; or
  • the local police may have entered the name, date of birth, or gender of the employee into the system incorrectly when either registering a conviction or searching to see if a conviction exists

As a result, a check may come back clear when in fact the person may have a criminal record.  A 48 Hour Name Check also does NOT reveal convictions for which a person has been pardoned (or given a record suspension).  Typically, a 48 Hour Name Check is not suitable for jobs involving the vulnerable sector.  Most employers who employ people in the vulnerable sector will not accept a 48 hour name check.

Further, if there is a criminal record, then this type of search is NOT suitable as it will only disclose the fact that there might be a record which has not yet been verified by fingerprints.  This also leads to another BIG problem for the employee.  They may NOT have a criminal record.  Instead, someone with a similar name and date of birth might have a criminal record, leading the employer to think that their employee might have one.  To prove the employee does not have a criminal record, they will need to be fingerprinted.

The only way to determine reliably if there is really a criminal record or to access a criminal record, the employee needs to be fingerprinted (see #2 below).  Fewer companies are relying on 48 Hour Name Checks as a screening method as a result of the digital technology that often provides results in as few as 10 days (when the applicant does NOT have a criminal record).

#2.  Fingerprint Based Search

Your fingerprints are taken electronically through a digital fingerprint agency and sent to the RCMP in Ottawa for processing.  This type of search reveals only convictions registered on the National RCMP database.  Most police voluntarily register convictions on the RCMP database.  This type of search is mandatory for applications involving Record Suspensions, Waivers, Immigration, Licensing and by most employment positions.

The Calgary Police no longer provide fingerprinting services to the public unless it is in relation to a Vulnerable Sector Search or criminal matters (such as when a person is being charged/convicted).  Instead, you’ll have to go to an accredited RCMP fingerprint agent (details below) for this service. For a fingerprint-based search, please contact our office. We are RCMP Accredited and Certified.

If you need to have your fingerprints processed outside Canada, we can provide you with a set of ink fingerprints for submission purposes.

Calgary Police Service

There are 3 types of checks conducted by the Calgary Police.

#3.  Local Police Check for Record Suspension (Pardon)

Are you applying for a Record Suspension?  If yes, there are two types of criminal record searches that must be completed.  First, you must complete the #2 Search above.  Secondly, only after you have received your RCMP criminal record, you must give your RCMP criminal record, along with the Record Suspensions Application form “Request for Local Police Check” to the police.  They will conduct a search and prepare a report disclosing , if any, convictions missing from the RCMP database, pending charges, charges not resulting in convictions, and other police matters (such as speeding tickets, disturbances, etc).

We recommend that you contact us before commencing a Record Suspension application.

#4.  NEW:  Criminal Record Check Provided by the Calgary Police

The Calgary Police will now give you a printout of your criminal record.   Though this printout is not recognized for Record Suspensions, Waivers, licensing, Immigration and most employment purposes, it does reveal to you what is on your criminal record and usually only takes an upwards of 10 days to receive. The Calgary Police will process this search based on a search of your name and date of birth.  This search is not verified by fingerprints.

#5.  Vulnerable Sector Search

If you are applying for a job in the vulnerable sector (working with vulnerable people such as children, elderly, and disabled), you will need to attend the Calgary Police Service for a vulnerable sector search.  This search reveals convictions on the National RCMP database and convictions involving offences against the vulnerable sector which may have been pardoned or suspended.  The local police may refuse to give you a police clearance if you have had charges related to the vulnerable sector which did not result in convictions.  Please visit the CPS Website for more information on vulnerable sector searches.

***If you are not sure what type of search you need, please contact our office.***

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Crime in Canada – It’s Not What you Think!

Crime in Canada

Crime in Canada

The book, Crime in Canada, provides an overview of statistics which challenge our perceptions.    I have no doubt that the voting public, even victims of crime, would have a different view of tough on crime legislation if they read this book, which favors instead the gradual release from prison and community-based rehabilitation programs.  They would learn that ‘tough on crime’ legislation will have the opposite unintended effect, contrary to the interests of the people it was intended to protect—the victims!

Learning that programs which address mental health issues have had some success is positive.  I’m not surprised to learn that programs dealing with the issue of drug use are not as successful, given my perception that many believe simple drug possession ought not to be a crime.  How can anyone support a program that fundamentally (to a degree) opposes the view of a large populous?  I am very thrilled to read about some of the community programs that have resulted in the successful monitoring of sex offenders following the date of release of incarceration that have not only been beneficial for the community but for the offender as well (meaning it’s a program that the offender voluntarily participates in).

The idea that our current political climate favors the U.S. model is frightening given the U.S. has the highest incarceration rates by far.  This is inconsistent with our values in Canada which favor more of a restorative justice approach.  Though many of our programs have not worked as well as we had hoped, some are working. We need to stay the course for so long as crime rates continue to trend in the right direction (down).

I fear that the expensive tough on crime policies of the current government will take resources from our social programs as well as from rehabilitation programs, resulting in an upward trend of our crime rate.

The author, Diane Crocker, does a very good job of providing an overview of criminal justice issues in Canada.  Individuals working in the criminal justice systems as well as students pursuing a career in criminal justice will enjoy this overview.  It’s easy to have a narrow view of criminal justice when you work in just one area.  More importantly, this book will give the voting public more confidence on Election Day, knowing that their votes are based upon statistical evidence and not merely emotional appeals designed to attract votes.

In the end, I am left with the impression that the current tough on crime approach approach may be favorable, but only provided it does not last!  Regrettably, I suspect it will come at great expense to some of our social programs, but I hope in the end it will strengthen our commitment to our core values in Canada.

The debate about whether we need to take a tougher stand against crime is healthy in that it brings to the attention of the public important issues including the demographics of offenders and social problems.  Like the State of Texas, I hope that the Government of Canada soon realizes that tough on crime legislation is too expensive and will not have the intended impact of reducing crime in Canada.

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