Date: 20070925
Docket:
IMM-3809-07
Citation: 2007
FC 956
Toronto, Ontario,
September 25, 2007
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
KALIFA
KIMBERLY TREA
Applicant
and
THE
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
AMENDED REASONS FOR ORDER AND
ORDER
Preliminary
Issue
[1]
Ms. Kalifa
Kimberly Trea was the subject of previous removal. She applied for a stay of
removal. Madam Justice Gauthier dismissed her application for a stay of
removal on August 25th, 2005. The removal was scheduled for August
26th, 2005. Ms. Trea failed to attend as required.
[2]
Counsel
for the Respondent submitted that Ms. Trea’s current application for a stay of
removal order ought not to be heard because Ms. Trea does not come to the Court
with “clean hands” having failed previously to comply with the removal
order. Counsel for the Respondent referred to a directive from Madam Justice
Tremblay-Lamer in which she held that it was not in the interest of justice to
hear a second stay application where an Applicant failed to attend a previously
ordered removal.
[3]
Counsel
for the Applicant submitted that Ms. Trea had an explanation for failing to
attend her removal. At the time of the first stay application, Trea was
pregnant. At the time the removal order was to take effect on August 26, 2005,
Ms. Trea was experiencing difficulty with her pregnancy and in fact spent time
at a health clinic under observation. Subsequently, Ms. Trea gave birth to a
child approximately one month later. The child was born prematurely at eight
months.
[4]
The Applicant’s
failure to cooperate with the removal is not excusable in law since her
application for a stay had not been granted by the Court. The difficulties
with the pregnancy, which has been substantiated by the evidence submitted and,
the fact that a birth of a child is a major life event do offer a reasonable
explanation for her failure to comply such that it is appropriate for the Court
to exercise its discretion and hear this application.
The Application for a Stay of a Removal
[5]
Ms. Trea
is subject to a removal as of this evening, Monday, September 24th, 2007. She
applies for a stay of a removal order. For her application to be successful
she must satisfy the tri-partite test in Toth v. Canada (Minister of Citizenship and
Immigration)
[2006] FC 682. There must be serious issue to be tried, irreparable harm must
result if the stay is not granted, and the balance of convenience must favour
the applicant.
Serious Issue to be Tried
[6]
Where an Applicant
is seeking a remedy in an interlocutory motion that is much the same as the
underlying action, the standard to be met is higher than that set out in RJR – MacDonald
Inc. v. Canada . In Wang v. Canada (Minister of Citizenship and
Immigration)
(2001) 3 F.C. 282; it is held that in such circumstances the likelihood of
success to the underlying application is also a consideration. The Applicant
has submitted that serious issues have been raised in that she has
an agency application and a spousal application in process.
The agency application has been in the process for 22 months. She does not
control the processing of the application. The agency application should be
considered because of the delay of 22 months. Further, she also has a spousal
application as a result of her marriage some five months previously. I am
satisfied that, in combination, these two matters can be considered as a
serious issue.
[7]
Further, the
counsel for the applicant submits that the removal officer failed to consider
the emotional impact on the Applicant’s child if removed from the family. On
review of the removal officer’s notes, it would appear that the removal officer
did consider the care and financial support for the child and the impact on the
applicant of being separated from her child. However, the officer did not
consider the emotional impact of family separation on the child. I am
satisfied this also constitutes a serious issue to be considered.
Irreparable Harm
[8]
Irreparable
harm should the removal order take effect, the child will be removed from the
family unit. The child may stay on with the mother or the step-father or with
other caregivers. There is evidence that the child has become attached to the step-father.
The child would be affected by being separated from either the applicant, or
her step-father. I am satisfied the test for irreparable harm to the child has
been met.
Balance of Convenience
[9]
The Applicant
has not been a burden to Canadian society. She has not been on welfare nor has
she been subject of criminal charges. She is in a family relationship with
her new husband who has applied to sponsor her. The couple are caring for the
two year old child. The Applicant has two applications in process, a H & C
application, which has been in process for 22 months, and a more recent spousal
application.
[10]
In all
these circumstances, the Court finds the balance of convenience favours the
applicant.
Conclusion
[11]
For the
foregoing reasons; an order for a stay of removal of the Applicant from Canada will issue until the H &
C and spousal applications have been finally disposed of.
ORDER
UPON Kalifa Kimberly Trea’s
motions for an order staying a removal to Trinidad currently scheduled for midnight
September 24th, 2007;
AND UPON having considered the materials
filed by the party, and having considered oral representations made on
September 24th, 2007;
THIS COURT ORDERS that the stay be granted until
the completion of the H & C application and the spousal application.
“Leonard
S. Mandamin”
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