Docket:
IMM-10406-12
Citation: 2014 FC 229
Ottawa, Ontario, March 7, 2014
PRESENT: The Honourable
Mr. Justice Annis
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BETWEEN:
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CATERINA PANGALLO
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application under s 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], for judicial review of the decision of
Officer S. Glenney (the Officer) of the Canada Border Services Agency (CBSA)
refusing the Applicant’s request of October 7, 2012 to defer her removal from
Canada. The Applicant asks that the decision be set aside and referred for
re-determination by another officer. For the following reasons, the application
is dismissed.
BACKGROUND
[2]
The Applicant,
Catherina Pangallo, is an Italian citizen who came to Canada from Italy in 2001. In Canada she met Antonio Botelho, a Canadian citizen, with whom she
became pregnant in 2005 as a result of alleged forced sexual relations. They
had three children together. She continued her troubled relationship with Mr.
Botelho, which was marred by incidents of domestic violence. On one occasion,
Mr. Botelho pleaded guilty to slapping the Applicant.
[3]
The Applicant
submitted an application for permanent residence on humanitarian and
compassionate grounds, which was refused on January 11, 2010. She also
submitted a PRRA in 2009, which was refused on February 10, 2010. As a result,
a removal order was issued against her.
[4]
In April of 2010, the
Applicant informed CBSA that she and the father of her children were unable to
agree on custody arrangements for their three children. As a result, CBSA did
not schedule her removal in order to allow her to bring a motion before the
family court to obtain travel documents and custody of her three children. This
situation was prolonged by the Applicant’s failure to comply with arrangements
intended to assist her in obtaining travel documents for her children.
[5]
The Applicant and Mr.
Botelho were married on January 21, 2012, and the Applicant informed CBSA that
she had withdrawn her motion for custody before family court. CBSA instructed
her to obtain travel documents for her children and she was advised that her
removal would be scheduled. On July 27, 2012, the Applicant was served with a
direction to report for removal on August 17, 2012. This removal was cancelled
on August 13, 2012 when the Applicant notified CBSA that she had been involved
in an incident of domestic violence and was living at a shelter.
[6]
On August 31, 2012, the
Applicant was served with a new direction to report for removal on October 10,
2012.
[7]
On September 11, 2012,
the Applicant’s family lawyer, Aida Pasha, submitted a letter to Legal Aid
Ontario (LAO) outlining a “breakdown” that had occurred in the relationship
between herself and the Applicant, in which she explained that the Applicant
required legal representation from a lawyer who was more experienced in dealing
with intersecting issues of family and immigration law. No further work was
done on the file until Ms. Pasha, on October 2, 2012, brought an emergency
motion on behalf of the Applicant at the Superior Court of Justice for
temporary custody of her children. Justice Rogers of that Court awarded custody
to the Applicant’s estranged husband, Mr. Botelho, on a without prejudice
basis.
[8]
On October 7, 2012,
the Applicant filed a request to defer removal to allow her to gain custody of
her children.
[9]
On October 10, 2012,
Officer Glenney denied the Applicant’s deferral request.
APPLICANT SUBMISSIONS
[10]
The Applicant alleges
that the Officer committed an error in failing to consider the breakdown in
solicitor-client relationship between the Applicant and her family lawyer, Ms. Pasha
despite the fact that the Applicant submitted a letter with her deferral request
from Ms. Pasha to Legal Aid Ontario detailing the breakdown.
[11]
The Applicant also
alleges that Justice Roger’s judgment on the custody matter makes it seem that
he was not informed for the reasons for the delay in bringing the emergency
custody motion (on August 31, 2012 the Applicant was served with a direction to
report for a removal date scheduled for October 10, 2012, yet did not file a
motion before the Family Court until October 2, 2012).
[12]
According to the
Applicant, Ms. Pasha contacted LAO on September 11, 2012, and on September 28,
2012, when LAO still had not provided a definitive answer, Ms. Pasha agreed to
assist with the emergency motion.
[13]
The Applicant alleges
that the Officer did not give consideration to the breakdown in the
solicitor-client relationship, which impeded the Applicant from obtaining a
temporary custody order, nor to the abuse and “turmoil” that led the Applicant
to stay with Mr. Botelho and rely on a sponsorship application that was never
filed.
[14]
The Applicant
disputes the Officer’s reasoning in regards to the best interests of the
children. The Officer stated in his decision that he was deferring to Justice
Roger’s order and reasoning in regards to the best interests of the children,
despite the fact that Justice Rogers noted in her reasoning that “the best
interests of the children cannot be fully ascertained today.” As a result, the
Applicant alleges that the Officer made an error by not properly considering
the best interests of the children.
STANDARD OF REVIEW
[15]
The Applicant submits
that the standard of review is one of reasonableness, basing this contention on
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and Vidaurre
Cortes v Canada (MCI), 2007 FC 78 at paras 8-10, 308 FTR 69.
[16]
In respect to the
best interests of the children, in Gurshomov v. Canada (Public Safety and
Emergency Preparedness), 2010 FC 1212, 94 Imm LR (3d) 109, Justice Phelan
stated the following at paragraph 13:
[…] a best interests of the children analysis is subject to the
reasonableness standard of review (Kolosovs v. Canada (Minister of
Citizenship and Immigration), 2008 FC 165).
ISSUES
1.
Did the Officer fail to consider the breakdown in solicitor-client
relationship between the Applicant and her family lawyer?
2.
Was the Officer’s
consideration of the best interests of the children reasonable?
ANALYSIS
[17]
It is
well-established that an enforcement officer’s discretion to defer removal is
limited (Baron v Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA 81 [Baron] at para 49, [2010] 2 FCR 311;
Turay v Canada (Public Safety and Emergency Preparedness), 2009 FC 1090
at para 16, [2009] FCJ No 1369). In Baron at paragraph 51, the Federal
Court of Appeal reiterated the guiding principles for review of an enforcement
officer’s decision not to defer removal, which were developed by Justice
Pelletier in Wang v Canada (Minister of Citizenship and Immigration),
2001 FCT 148, [2001] 3 FC 682 (FC) [Wang] as follows:
− There are a range of factors
that can validly influence the timing of removal on even the narrowest reading
of section 48, such as those factors related to making effective travel
arrangements and other factors affected by those arrangements, such
as children’s school years and pending births or deaths.
− The Minister
is bound by law to execute a valid removal order and, consequently,
any deferral policy should reflect this imperative of the Act.In
considering the duty to comply with section 48, the availability of an
alternate remedy, such as a right to return, should be given great
consideration because it is a remedy other than failing to comply with a
positive statutory obligation. In instances where applicants are successful in
their H&C applications, they can be made whole by readmission.
− In order to respect the
policy of the Act which imposes a positive obligation on the Minister, while
allowing for some discretion with respect to the timing of a
removal, deferral should be reserved for those applications where
failure to defer will expose the applicant to the risk of death, extreme
sanction or inhumane treatment. With respect to H&C applications, absent
special considerations, such applications will not
justify deferral unless based upon a threat to personal safety.
− Cases where the only
harm suffered by the applicant will be family hardship can be remedied by
readmitting the person to the country following the successful conclusion of
the pending application.
Lack of Adequate Representation at the
Mobility Motion
[18]
The Applicant’s
allegations that the Officer did not give proper consideration to the breakdown
in the relationship between the Applicant and her legal counsel have little, if
any, merit. As clearly stated in Wang, Baron, and subsequent
jurisprudence, an enforcement officer’s discretion to defer removal is very
limited, and should only be granted in cases where there is a risk of death,
extreme sanction, or inhumane treatment, or in temporary exigent circumstances,
such as in order to facilitate appropriate travel arrangements.
[19]
There is nothing
temporary or exigent in the circumstances precipitating the applicant’s
application for a deferral in order to challenge the Superior Court’s decision
in a custody proceeding, which procedures can extend over many years. No
evidence was introduced to the effect that 18 months after a stay decision was
issued in favour of the Applicant, she had succeeded in challenging the
mobility decision awarding custody of the children to Mr. Botelho, thereby
providing an opportunity for the Officer to reconsider the removal order on the
basis of changed circumstances.
[20]
Moreover, the
evidence indicates that Mr. Botelho was unrepresented at the mobility custody
motion, while the Applicant’s lawyer was in attendance to represent her. I may
also take judicial notice of the fact that parties in family law matters are
often unrepresented and in such circumstances judges are obliged to ensure no
miscarriage of justice occurs. This includes a wide discretion to obtain
information from the parties and consider all the relevant circumstances,
particularly where the interests of children are concerned. This discretion is
rooted in, among other things, the Court’s parens patriae jurisdiction,
which was described by the Supreme Court of Canada in E. (Mrs.) v Eve, [1986]
2 SCR 388 at paragraph 73, [1986] SCJ No 60:
The parens patriae jurisdiction is, as I have said, founded on necessity,
namely the need to act for the protection of those who cannot care for
themselves. The courts have frequently stated that it is to be exercised in the
"best interest" of the protected person, or again, for his or her
"benefit" or "welfare".
[21]
This wide discretion
conferred upon the Superior Court in matters of unrepresented litigants in
challenging family law proceedings where the custody of children is at stake
must be respected.
Best Interests of the Children
[22]
In Baron, the
Court stated at paragraph 57 that “. . . The jurisprudence of this Court has
made it clear that illegal immigrants cannot avoid execution of a valid removal
order simply because they are parents of Canadian-born children. . . . an
enforcement officer has no obligation to substantially review the children’s
best interest before executing a removal order.”
[23]
In Varga v Canada
(Minister of Citizenship and Immigration), 2006 FCA 394, [2007] 4 FCR
3, the Federal Court of Appeal stated at paragraph 16 that “…within the narrow
scope of removals officers’ duties, their obligation, if any, to consider the
interests of affected children is at the low end of the spectrum, as contrasted
with the full assessment which must be made on an H&C application under subsection
25(1).”
[24]
In Munar v Canada (Minister of Citizenship
and Immigration), 2005 FC 1180, [2006] 2 FCR 664 [Munar], Justice de
Montigny made a determination on a motion for a stay of removal brought by an
applicant who had requested deferral of removal in order to apply for passports
for her two Canadian-born children, who she wanted to take with her upon
removal. She alleged that they would suffer severe hardship if separated from
her. Nevertheless, the removal officer refused to defer her removal. Justice de
Montigny granted the stay in question, and carried out a thorough analysis of
the best interests of the child in the context of removal of a parent. I quote
from his decision beginning from paragraph 37:
[37] Having said
all of this, if the best interest of the child is to be taken seriously, some
consideration must be given to fate when one or both of their parents are to be
removed from this country. As is often the case, I believe that the solution
lies somewhere in between the two extreme positions espoused by the parties.
While an absolute bar on the removal of the parent would not be warranted, an
approach precluding the removal officers to give any consideration to the
situation of a child would equally be unacceptable.
[38] I tend to
agree with my colleague Justice Snider that the consideration of the best
interests of the child is not an all‑or‑nothing
exercise, but should be seen as a continuum. While a full‑fledged analysis is required in the
context of an H&C application, a less thorough examination may be
sufficient when other types of decisions are made. Because of section 48 of the
Act and of its overall structure, I would also agree with her that the
obligation of a removal officer to consider the interests of Canadian‑born children must rest at the lower
end of the spectrum (John v. Canada (Minister of Citizenship and
Immigration)).
[39] When
assessing an H&C application, the immigration officer must weigh the long
term best interests of the child. A useful guide as to the factors that can be
taken into consideration is provided in Chapter IP 5 (Immigrant Applications in
Canada Made on Humanitarian or Compassionate (H&C) Grounds) of the Immigration
Manual: Inland Processing (IP), published by Immigration and Citizenship
Canada. Factors related to the emotional, social, cultural and physical well‑being of the child are to be taken
into consideration. Examples of factors that can be taken into account include
the age of the child, the level of dependency between the child and the H&C
applicant, the degree of the child’s establishment in Canada, the child’s links
to the country in relation to which the H&C decision is being considered, the
medical issues or special needs the child may have, the impact to the child’s
education, and matters related to the child’s gender. In a nutshell, to quote
from Décary. J.A. in Hawthorne v. Canada (Minister of Citizenship and
Immigration), [2003] 2 F.C. 555 (C.A.), at paragraph 6, “the officer’s task
is to determine, in the circumstances of each case, the likely degree of
hardship to the child caused by the removal of the parent and to weigh this
degree of hardship together with other factors, including public policy
considerations, that militate in favour of or against the removal of the
parent.”
[40] This is
obviously not the kind of assessment that the removal officer is expected to
undertake when deciding whether the enforcement of the removal order is “reasonably
practicable.” What he should be considering, however, are the short‑term best interests of the child. For
example, it is certainly within the removal officer’s discretion to defer
removal until a child has terminated his or her school year, if he or she is
going with his or her parent. Similarly, I cannot bring myself to the
conclusion that the removal officer should not satisfy himself that provisions
have been made for leaving a child in the care of others in Canada when parents are to be removed. This is clearly within his mandate, if section 48 of
the IRPA is to be read consistently with the Convention on the Rights of the
Child. To make enquiries as to whether a child will be adequately looked
after does not amount to a fulsome H&C assessment and in no way duplicates
the role of the immigration officer who will eventually deal with such an
application (see Boniowski v. Canada (Minister of Citizenship and
Immigration) (2004), 44 Imm. L.R. (3d) 31 (F.C.)).
[41] In the
present case, the two kids of the applicant are very young, and nobody seems
prepared to care for them besides their mother. Yet, she cannot take them with
her since her application for an order seeking sole custody has not yet been
dealt with. Therefore, I conclude that the applicant has raised a serious
question, even on the more probing standard required in a case like this one,
when claiming that the removal officer failed to exercise her discretion
appropriately and was not “alert, alive and sensitive” to the childrens’ best
interests.
[25]
The jurisprudence has
made clear that while the best interests of the children are certainly a factor
that must be considered in the context of a removal order, they are not an
over-riding consideration. In the case at hand, unlike in Munar, the
children are in the custody of one of their parents, and therefore the
deportation of the Applicant will not leave the children without a parent to
care for them. While it is clear that the Applicant’s family situation has been
fraught with conflict and domestic violence, resulting in her reluctance to
leave her children with her estranged husband, this is not the matter before
me. Justice Rogers heard the Applicant’s emergency motion for temporary custody
and awarded custody to Mr. Botelho. It is not for me to second guess Justice
Rogers’ decision, nor to grant a deferral of removal based on the Applicant’s
discontent with that decision. The custody order was awarded without prejudice,
which will allow the Applicant to continue to pursue custody upon removal.
[26]
In the case at hand,
the Officer did his best to facilitate appropriate travel arrangements by
postponing the Applicant’s removal on more than one occasion in order to allow
her to resolve custody issues with her husband. Once Justice Rogers’ decision
was rendered, custody of the children was no longer an issue, and there has
been no allegation of risk of death, extreme sanction, or inhumane treatment.
[27]
As a result, I find
that the enforcement officer’s decision not to defer removal was reasonable,
and took sufficient consideration of both the Applicant’s relationship with her
lawyer, as well as the best interests of the children.
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