Date:
20070316
Docket:
A-142-06
Citation: 2007 FCA 75
CORAM: DESJARDINS
J.A.
NOËL
J.A.
PELLETIER
J.A.
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
and
MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
Appellants
and
MARIA BONNIE ARIAS GARCIA
ROBERTO SALGADO-ARIAS
RODOLFO VALDES-ARIAS (A.K.A. RODOLFO
ARIAS-GARCIA)
Respondents
REASONS FOR JUDGMENT
DESJARDINS
J.A.
[1]
Maria
Bonnie Arias Garcia, her sons Roberto Salgado-Arias, as well as her second son
Rodolfo Valdes-Garcia (a.k.a. Rodolfo Arias-Garcia), two minor children, are
subject to a removal order enforceable as of January 19, 2005. Through the
operation of subsection 224(2) of the Immigration and Refugee
Protection Regulations, SOR/2002-227, this removal order has now become a
deportation order. Ms. Arias Garcia is a person contemplated by
subsection 36(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act), and her children are inadmissible to Canada based
on an inadmissible family member pursuant to paragraph 42(b) of the Act.
[2]
Although
they are all named as respondents in the style and cause, the child Rodolfo is
the only respondent.
[3]
Rodolfo
was the subject of a judgment by the Court of Appeal of Québec, dated
June 8, 2004, following an application by the father to have him
returned to Mexico forthwith.
This application was made in accordance with An Act respecting the Civil
aspects of international and interprovincial child abduction, R.S.Q.
c. A-23.01, the Act giving effect to the Hague Convention on the Civil
Aspects of International Child Abduction (the Hague Convention). The
Court of Appeal of Québec dismissed the father’s application.
[4]
A
Mexican judgment, dated October 6, 2004, granted the divorce of the two parents.
The mother was given custody of Rodolfo and parental authority was conferred to
both parents.
[5]
On
May 26, 2005, a pre-removal risk assessment (PRRA) officer made a negative
finding on the PRRA application filed by Ms. Arias Garcia on the grounds that there
was no personal risk to her or her children in Mexico and that
State protection was available to them. The application for judicial review of
this decision was dismissed on March 9, 2006 (A.R., page 272).
[6]
An
application to stay the removal order was filed pursuant to paragraph 50(a)
of the Act. It was dismissed on June 17, 2005.
[7]
The
enforcement of this removal order was suspended until the final decision on the
application for judicial review of the decision dated June 17, 2005, filed with
the Federal Court of Canada.
[8]
The
application for judicial review was allowed: 2006 FC 311, [2006] 4 F.C.R. 455.
Madam Justice Tremblay-Lamer relied on the case law factors elaborated in Alexander
v. Canada (Solicitor General), 2005 FC 1147, [2006] 2 F.C.R. 681 (Alexander)
(appeal dismissed, as the issue had become moot (2006 FCA 386); adopted in
Perez v. Canada (Minister of Citizenship and Immigration), 2005 FC
1317). She noted the decision in Cuskic v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 3 (C.A.), then she stated:
[33] In my analysis, I have been guided by those factors. In
the case at bar, the Quebec Court of Appeal held, I think quite unequivocally,
that the return of the child Rodolfo to Mexico should not take place since he had settled
into his new environment. I quote the finding of Justice Louise Mailhot in
full, at paragraph 41:
[translation]
I find that the evidence shows that the child has settled into his new
environment and, for these reasons, I would allow the appeal, quash the trial
judgment and dismiss the motion for the immediate return of the child Rodolfo
to Mexico, each party to pay its own costs.
[48] In short, the removal officer was bound to abide by
the temporary stay provided for by paragraph 50(a), since the court
judgment had a direct effect on the removal order. However, the Court of
Appeal’s judgment has to be narrowly read. It cannot be interpreted as having
the effect of giving Rodolfo permanent resident status, status which would have
to be given or withheld by the proper authority.
[49] The fact that the child Rodolfo may be the subject of
a statutory stay is not a bar to removal of the mother, since the child’s best
interests cannot in any way be a bar to the removal of a parent who is
illegally in Canada (Legault). As Dawson J.
suggested in Alexander, parental custody does not imply physical custody
of the child at all times, but the right to control its place of residence.
When faced with removal, the mother may apply to the Court of Appeal for a
variance of its order to allow the return of Rodolfo to Mexico or make
provision for leaving him in Canada.
Can the judgment of a provincial court
refusing to order the return of a child pursuant to the Convention on the Civil
Aspects of International Child Abduction, [1989] Can. T.S. No. 35, and s. 20 of
the Act respecting the Civil Aspects of International and Interprovincial Child
Abduction, R.S.Q.,
c. A-23.01, “the ACAIICA”, have the effect of directly and indefinitely
preventing the enforcement of a removal order which has taken effect pursuant
to the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (“the IRPA”)?
ANALYSIS
[11]
Since
it is essentially a question of law, the trial judge’s decision had to be
correct. The standard of review that we must apply is therefore that of
correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at paragraph
8.
[12]
Paragraph
50(a) of the Act provides the following:
|
Stay
50.
A removal order is stayed
(a)
if a decision that was made in a judicial proceeding — at which the
Minister shall be given the opportunity to make submissions — would be
directly contravened by the enforcement of the removal order;
.
. .
[Emphasis
added.]
|
Sursis
50.
Il y a sursis de la mesure de renvoi dans les cas suivants :
a) une décision judiciaire a pour effet
direct d’en empêcher l’exécution, le ministre ayant toutefois le droit de
présenter ses observations à l’instance;
[…]
[Je
souligne.]
|
[13]
Paragraph
50(a) is an exception to section 48, which provides that a removal
order is applied as soon as conditions so permit.
[14]
The
relevant elements of the Court of Appeal of Québec’s decision read as follows:
[3] For the reasons of
Mailhot J., with which Chief Justice Robert is in agreement.
[4] ALLOW the appeal;
[5] SET ASIDE the
decision of first instance and DISMISS the application to have the child
Rodolfo returned to Mexico forthwith, each party to pay their own costs.
(Appeal Book, page 27)
[15]
Tremblay-Lamer
J. could not determine that the Court of Appeal of Québec’s decision was a
decision made in a judicial proceeding that would be “ directly contravened” by
the enforcement of the removal order, pursuant to paragraph 50(a) of the
Act.
[16]
For
a decision made in a judicial proceeding to be “directly contravened” by the
enforcement of the removal order, an express provision of an order must be
inconsistent or irreconcilable with the removal of the person concerned.
Therefore, I agree on this point with paragraph 34 of Alexander,
referred to above.
[17]
The
trial judge misunderstood the scope of the Court of Appeal of Québec’s decision
when she stated: “the Quebec Court of Appeal held, I think quite unequivocally,
that the return of the child Rodolfo to Mexico should not take place since he
had settled into his new environment” (paragraph 33 of her reasons).
[18]
The
determination of the Court of Appeal of Québec to the effect that the child
Rodolfo had settled into his new environment is part of the reasons of the
majority’s judgment and not of the decision itself. This determination was made
during the analysis of whether the child should be returned to Mexico forthwith
rather than kept in his new environment, considering the fact that more than
one year had elapsed between the time of the wrongful removal of the child and
the commencement of the proceedings for his return (section 20 of the Act
respecting the Civil aspects of international and interprovincial child
abduction and article 12 of the Hague Convention).
[19]
The
grounds raised by the majority to dismiss the father’s application only explain
the Court of Appeal’s decision. The dismissal of the father’s application is a
judicial decision that does not contain a specific order. This decision
therefore cannot be inconsistent or irreconcilable with the removal order.
[20]
The
respondent submits that in accordance with Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, the child’s interest
must be considered for the purposes of interpreting and applying paragraph 50(a)
of the Act.
[21]
It
is certain, as Tremblay-Lamer J. noted, that the judgment of the Court of
Appeal of Québec cannot be interpreted as having the effect of conferring
permanent resident status to Rodolfo (paragraph 48 of her reasons). The
judgment had the effect of dismissing the application for the return of Rodolfo
to Mexico forthwith.
Therefore, Rodolfo remained in the custody of his mother and with his brother.
He could continue to attend the school that had become familiar to him. If the
minority opinion of the Court of Appeal had prevailed (Morin J.), the
child Rodolfo would have been separated from his mother and his brother and he
would have had to leave Canada immediately for Mexico.
[22]
Interpreting
50(a) in the manner proposed by the respondent, i.e. granting the child
a right to remain in Canada, would have the effect of separating the young
family, and keeping Rodolfo in Canada while his mother and brother Roberto were
subject to a deportation order. Most importantly, this interpretation would give
the judgment of the Court of Appeal of Québec a scope that it does not have.
[23]
I
would allow the appeal, set aside the decision by the trial judge and I would
dismiss the application for judicial review.
[24]
I
would respond to the following certified question in the negative:
Could a
judgment by a provincial court refusing to order the return of a child in
accordance with the Convention
on the Civil Aspects of International Child Abduction, [1989] R.T. Can. No. 35, and section 20 of An Act respecting the Civil
aspects of international and interprovincial child abduction, R.S.Q., c. A-23.01 (ACAIICA) have the effect of directly and
indefinitely preventing the enforcement of a removal order which is effective
under the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA)?
No.
[25]
The
respondent was seeking to have the enforcement of the deportation order stayed
for 60 days if we allow the appeal. The removal officer, not the Court, is
responsible for addressing such requests.
“Alice
Desjardins”
“I
concur.
Marc Noël J.A.”
“I
concur.
J.D. Denis PelletierJ.A.”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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