“There is a considerable body of case law that deals with the intersection of family and immigration law when a party in a family law case is subject to deportation. The law was recently summarized by the Ontario Court of Appeal in paragraphs [23]-[28] of J.H. v. F.A., 2009 ONCA 17 (CanLII), 306 D.L.R. (4th) 496, 77 Imm. L.R. (3d) 123, [2009] O.J. No. 88, 2009 CarswellOnt 85, as follows:
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[23] The purpose of non-removal orders under the CLRA is not to frustrate the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation but to prevent parents from removing children from the jurisdiction in contested family law proceedings: see Wozniak v. Brunton and Minister of Citizenship and Immigration (No. 2), 2004 CanLII 19764 (ON SC), 2004 CanLII 19764, 1 R.F.L. (6th) 429, [2004] O.J. No. 939, [2004] O.T.C. 240, 2004 CarswellOnt 943 (Ont. Fam. Ct.), at para. [23]; Varvara v. Constantino, [2005] O.J. No. 861, 2005 CarswellOnt 10505 (Ont. S.C.), at para. [33]. It is not open to applicants scheduled to be removed by federal immigration authorities to use the family courts to stay in Ontario “under the guise of determining [the] best interests of a child”: Augustin v. Canada (M.P.S.E.P) and Leonty (27 February 2008), Toronto 07/FA/014805 (Ont. S.C.), at para. [9]. |
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[24] In this case, there was no family law dispute with respect to incidents of custody between the parents. One child’s father had not participated in the proceedings at all. The other had no desire for custody. There was no suggestion that any of the parties had any interest in removing children from Ontario. The relevant paragraphs of the order were aimed not at the parents of the child but at the respondent Ministers pending the outcome of the [humanitarian and compassionate] application. The CLRA should not be used to frustrate the IRPA. The IRPA and related legislation is the forum in which to address immigration and related claims. |
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[25] In any event, even if the motions judge’s order was restored, recent jurisprudence from the Federal Court of Appeal, the court charged with the primary responsibility of interpreting the IRPA, indicates that the CLRA order would not affect a s. 50(a) statutory stay of the removal order. In Idahosa v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FCA 418 (CanLII), 385 N.R. 134, 307 D.L.R. (4th) 368, 77 Imm. L.R. (3d) 130, [2008] F.C.J. No. 1800, 2008 CarswellNat 4895 (Fed. C.A.), Appeal Justice John M. Evans, on behalf of a unanimous court, held at para. [59]: |
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Paragraph 50(a) does not apply to a provincial court’s order awarding custody to a parent of Canadian-born children for the purpose of delaying or preventing the enforcement of a removal order against the parent, when there is no lisrespecting custody that is unrelated to the removal. |
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[26] In coming to this conclusion, Justice Evans held that the IRPA provides opportunities for the consideration of the best interests of the children of those subject to deportation. He also stated at para [54]: |
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While great weight must be given to the best interests of children in administrative decision-making, they do not necessarily outweigh all other considerations: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 243 N.R. 22, 174 D.L.R. (4th) 193, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, 1999 CanLII 699 (SCC), 1999 CanLII 699, [1999] S.C.J. No. 39, 1999 CarswellNat 1125 at para 75; Canadian Foundation for Children, Youth and the Law v. Attorney General for Canada, [2004] 1 S.C.R. 76, 2004 SCC 4 (CanLII), 315 N.R. 201, 183 O.A.C. 1, 234 D.L.R. (4th) 257, 115 C.R.R. (2d) 88, 46 R.F.L. (5th) 1, 180 C.C.C. (3d) 353, 16 C.R. (6th) 203, [2004] S.C.J. No. 6, 2004 CarswellOnt 252, at para 10. The denial of Ms Idahosa’s H & C application is not under review in this appeal. |
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[27] I agree with and would apply this analysis to the consideration of whether the non-removal order should have been made in the circumstances of this case. The reasoning in Idahosa is consistent with the Ontario cases which indicate that non-removal orders under the CLRA should not be granted for the purpose of frustrating removal orders in immigration proceedings. |
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[28] Furthermore, as the appeal judge observed, it is open to the appellant to make an application in the Federal Court for a stay of removal pending the determination of her H&C application. This is the appropriate forum for consideration and weighing of the various competing interests.” |
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