Docket: IMM-5438-15
Citation:
2015 FC 1359
Ottawa, Ontario, December 8, 2015
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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ANAKI SALETA SASHA BAPTISTE
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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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ORDER AND REASONS
[1]
The Applicant seeks an Order staying her removal
to Grenada, scheduled to take place on December 7, 2015, pending a
determination by this Court of her application for leave and for judicial
review of the decision of an inland enforcement officer [Officer] dated
December 3, 2015 refusing her request for a deferral of her removal.
[2]
The stay motion was heard in the morning of
December 7, 2015 and the order issued orally with reasons at the completion of
the hearing. These are the more fulsome written reasons accompanying the
decision to stay the Applicant’s removal.
[3]
For the reasons that follow, the stay motion is granted.
I.
Background
[4]
The Applicant came to Canada with her mother at
the age of 11. She failed to gain permanent residency status through a number
of unsuccessful procedures initiated by her mother, and thereafter by herself.
These include an unsuccessful refugee protection claim, two non-bona fide
spousal class claims and an unsuccessful Pre-Removal Risk Assessment [PRRA]
application.
[5]
In May 2009, the Applicant failed to attend a
pre-removal interview. A warrant for her arrest issued on June 29, 2009. She
was subsequently arrested more than six years later on November 14, 2015.
[6]
While remaining illegally in Canada, the
Applicant married a Canadian citizen and had a child, who was 2 years old at
the time of her arrest on November 15, 2015.
[7]
On November 26, 2015 removal arrangements were
completed for the Applicant’s removal to Grenada on December 7, 2015. On
November 27, 2015 the Applicant requested a deferral of her removal, which was
refused by the decision of the Officer dated December 3, 2015. The Applicant
thereafter filed a leave application for judicial review of the Officer’s
decision and initiated this stay motion on Friday, December 4, 2015.
II.
Analysis
[8]
It is common ground that the conjunctive three
prong test of the Applicant having to demonstrate a serious (and heightened)
issue, irreparable harm and the balance of convenience in her favour applies to
a proceeding in order to stay the officer’s decision rejecting her request to defer
her removal: Toth v Canada (Minister of Employment and Immigration)
(1988), 86 NR 302, 6 Imm LR (2d) 123 (FCA); Baron v Canada (Minister
of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311
at para 51.
[9]
Having entertained the written and oral
submissions of the parties, the Court finds that there is a serious issue that
the removals officer failed to be “alert, alive and
sensitive” to the short-term best interests of child upon the
Applicant’s removal to Grenada: Munar v Canada (Minister of Citizenship and
Immigration) [Munar], 2005 FC 1180 at para 40:
[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), 2004 FC 1161 (CanLII), 44 Imm. L.R.
(3d) 31 (F.C.)).
[Emphasis added]
[10]
I conclude that inadequate provision for the
care of the child when the mother is to be removed extends to a failure in this
case to ensure that the parents have had a reasonable opportunity to decide
which parent should continue to have the care and custody of the child upon
separation on December 7, 2015, and whether adequate coping mechanisms are in
place to meet the child’s short term needs after the removal of the mother.
[11]
Despite the requirement by section 48 of the Immigration
and Refugee Protection Act [IRPA] that the Applicant be removed as soon as
possible, her removal to Grenada within slightly more than three weeks after
her arrest raises a serious issue that the two-year-old child faces exceptional
circumstances in terms of the hardship and risk of emotional harm by his
mother’s unexpected and very abrupt removal.
[12]
I think it must be obvious to the reasonable
person that the mother’s removal three weeks after her arrest and incarceration
is “jumping the gun” without allowing more time for the parents to make
considered decisions on what is best for the child in the circumstances and
what measures must be undertaken to provide for the significant change in his
care and custody arrangements.
[13]
In this regard, I disagree with the Officer’s
conclusion that there is insufficient evidence to demonstrate that in the short
term the Applicant’s spouse and child will be unable to cope. A reasonable
interpretation of the evidence in the record could not but suggest that the
incarcerated Applicant and her husband would not have had an opportunity to
adequately and appropriately consider the best interests of the two-year-old
child regarding who should be the single caregiver going forward.
[14]
The mother appears ready to abandon the child
despite being his principal care giver, but this is far from clear as to what
is in the child’s best interests. Abruptly removing the principal caregiver in
the child’s life overnight is an act that risks having serious consequences on
the child. Who the child should remain with is a decision that obviously
requires some degree of investigation and thought, and even professional
assistance. By acting with such haste to remove the mother, she was unable to
determine what options might exist for her in Grenada to enable her to take the
child with her.
[15]
On the other hand, if the child remains with the
father in Canada, every indication is that he will not have the time or means
in the short term at least, to care for the child in what becomes an
exceptional hardship to the child and the parents caused by the unnecessary
rapidity of the mother’s removal.
[16]
These are not simple cases, but I think in
stating the “bottom line” in respect of the counter-play between the
requirement to remove the foreign national as soon as possible and the best
interests of a child, particularly perhaps for a child of tender age, is that
removals officers must be alert, alive and sensitive to a removal of the
principal caregiver that may be effected with too much haste. For the child’s
sake, the parents must be provided with a reasonable opportunity to consider
how best to respond to the abrupt separation and to ensure that appropriate
coping mechanisms are put in place for what the psychologist described in this
matter as “the mental equivalent of parental death of
that child;”.
[17]
While I agree with the principle enunciated by
the Respondent that the parents ought to have known this day would come, and
prepared for its eventuality, the reality is that persons living on hope and
love rarely do so. This is confirmed by the well-established failure of
increased penalties to reduce crime, because criminals do not think they will
be caught. But this debate aside, the important fact remains that whatever the
parents ought to have done in preparing for this eventuality, the harmful
results are visited on the child who suffers the consequences.
[18]
Allowing a mere three weeks, when the child’s
environment has been markedly destabilized and during which time the mother
remains incarcerated, is simply insufficient to allow for the best interests of
the child to be considered and implemented in terms, either of his custody and
access arrangements, or the appropriate coping mechanisms to deal with the changed
world that he now faces.
[19]
I therefore conclude that the Officer’s failure
to be “alert, alive and sensitive” to the effects of a too-rapid removal of the
Applicant and her inability to participate with her husband in deciding who
should have custody and what coping mechanisms could be put in place to meet
the child’s needs in either case, raises a serious issue and meets the first
prong towards having the decision set aside as was done in Munar.
[20]
As in Munar, I also conclude that the
serious issue concerning the failure to consider the child’s best interests in
the short term also enables the demonstration of irreparable harm and a finding
that the balance of convenience favours an order staying the Applicant’s
removal.
[21]
Accordingly, the Court orders that the
Applicant’s removal is stayed pending the determination of the leave
application to set aside the Officer’s decision.
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