Date: 20260225

Docket: IMM-3521-26

Citation: 2026 FC 263

Toronto, Ontario, February 25, 2026

PRESENT: Mr. Justice Brouwer

ORDER AND REASONS

[1] The Applicant, Andrea Angeles Solar Sepulveda, faces removal from Canada to her native Chile on February 26, 2026. She seeks a stay of her removal pending her application for judicial review of the decision of the Canada Border Services Agency (CBSA) refusing to defer her removal while her application for permanent residence under a sponsorship by her common law spouse is being processed. For the reasons set out below, I grant her motion.

I. Background

[2] Ms. Solar Sepulveda first entered Canada in 2017 on a work permit. She began residing with her common law partner, a Canadian citizen, soon thereafter, and they have been together ever since. In 2018 Ms. Solar Sepulveda applied for permanent residence under a sponsorship by her common law partner. This application appears to have been “in process” with Immigration, Refugees and Citizenship Canada (IRCC) for almost six years, until January 2024 when processing was cancelled. A new application was quickly submitted in January 2024, but processing of this second application was also cancelled – or possibly never started - by IRCC, a fact only discovered by Ms. Solar Sepulveda in July 2025 after she sought assistance from her Member of Parliament.

[3] Meanwhile in May 2025, CBSA issued an exclusion order against Ms. Solar Sepulveda, and then offered her a Pre-Removal Risk Assessment, which she declined in July 2025. She sought out new counsel and, on January 27, 2026, submitted a third application for permanent residence under the sponsorship of her common law partner. By this time, CBSA had begun removal discussions with Ms. Solar Sepulveda, and on February 5, 2026, issued her a Direction to Report for removal (DTR) to Chile on February 26, 2026.

[4] Ms. Solar Sepulveda requested a deferral of her removal pending the disposition of her outstanding third application for permanent residence. In support of her deferral request, she submitted proof of the outstanding application and the previous ones, detailed affidavits sworn by her and by her common law partner, an affidavit by her counsel’s assistant, letters from friends and family attesting to the couple’s relationship and expected emotional and psychological impact of separation, photographs of the couple and their pets past and present, and correspondence with previous counsel and with the office of their Member of Parliament. The letters and affidavits detailed the harms that Ms. Solar Sepulveda’s removal to Chile would cause to herself and to her common law partner. In supporting submissions her counsel explained that Ms. Solar Sepulveda had been failed by the immigration representatives who had been involved in her earlier applications, neither of which had been processed to completion, and summarized the evidence regarding the harms and hardships she and her partner faced if removal were to proceed.

[5] By decision dated February 18, 2026, an Enforcement Officer [Officer] with the CBSA refused Ms. Solar Sepulveda’s request. The Officer set out a summary of Ms. Solar Sepulveda’s immigration proceedings (albeit excluding reference to the second sponsorship application), expressed sympathy for Ms. Solar Sepulveda, but found:

(1) Application for Permanent Residence (“APR”) - Family Class

Angela Angeles Solar Sepulveda has requested that her removal from Canada be deferred until such time a decision has been rendered on her APR.

The deferral narrative states that an APR was submitted to IRCC on January 27th, 2026. At this time, IRCC has not confirmed receipt of this application.

The processing time remaining for this application is currently 20 months.

Insufficient evidence has been received by this office showing that a decision on this application is imminent or forthcoming.

(2) Hardship

Angela Angeles Solar Sepulveda has requested that her removal from Canada be deferred indefinitely to avoid irreparable emotional, social, financial, and psychological harm.

I have read and reviewed multiple letters of support from various individuals.

The removal process is not immune to its inherent consequences, and I understand the toll that it may have on those directly or indirectly involved. I do sympathize for Angela Angeles Solar Sepulveda; however, she will be returning to her country of nationality where she is familiar with the land, languages, and governments.

[6] Ms. Solar Sepulveda immediately initiated the underlying application for leave and for judicial review and accompanying motion to stay her removal. Applicant’s counsel requested that the motion be set down for a hearing at this Court’s General Sittings in Toronto and was within time to do so per Rule 362(1). On February 19, 2026, the Respondent wrote to the Court urging “the Judge who will be deciding whether to grant the Applicant(s) a special hearing of this motion pursuant to Rule 35(2) of the Federal Courts Rules” to decline to entertain the motion. The Respondent asserted that the motion was “wholly lacking in merit. The Applicant makes a number of claims that are not corroborated with evidence in the motion record, and fails to identify an error with the Officer’s decision.” The Respondent accused the Applicant of “providing evidence directly within her memorandum of argument without any corroboration within the motion record.” In the alternative, the Respondent asked to be relieved of the requirement to serve and file a motion record and to be permitted to “proceed by way of oral arguments alone.”

[7] Ms. Solar Sepulveda responded promptly, pointing out that she was not seeking a special sitting and that contrary to the Respondent’s claims, all assertions of fact were grounded in evidence contained in the motion record. I agreed with Ms. Solar Sepulveda and dismissed the Respondent’s request. The motion was heard before me on February 24, 2026.

II. Analysis

[8] To obtain a stay of removal, the Applicant must meet the well-known three-part test for injunctive relief, namely: (1) that the underlying application for judicial review raises a “serious question to be tried;” (2) that they will suffer irreparable harm if the stay is refused; and (3) that the balance of convenience favours granting a stay (Toth v Canada (Employment and Immigration) (1988), 1988 CanLII 1420 (FCA) [Toth]; R v Canadian Broadcasting Corp, 2018 SCC 5 at para 12; Manitoba (Attorney General) v Metropolitan Stores Ltd, 1987 CanLII 79 (SCC) [Metropolitan Stores]; RJR-MacDonald Inc v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at 334 [RJR-MacDonald]).

[9] Where, as here, the underlying application challenges a CBSA decision refusing to defer removal, Courts have found that granting the motion for a stay may be equivalent to the remedy sought by the main application. Because of this, the first prong of the test is applied more rigorously: the applicants must show “quite a strong case” and not simply a “serious issue” (RJR-MacDonald at paras 338–339; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at paras 66-67).

[10] While each prong of the three-part test must be met, “they are not discrete, watertight compartments.” Rather, the test is applied in a holistic fashion where strengths with respect to one factor may overcome weaknesses with respect to another (RJR-MacDonald at para 339; Parakkal v Canada (Citizenship and Immigration), 2025 FC 1280 at para 9, Spencer v Canada (Attorney General), 2021 FC 361 at para 51; British Columbia (Attorney General) v Alberta (Attorney General), 2019 FC 1195 at para 97 (rev’d on other grounds 2021 FCA 84); and Power Workers Union v Canada (Attorney General), 2022 FC 73 at para 56).

[11] In the end, the decision to grant or refuse interlocutory relief is a discretionary one that must be made having regard to all the relevant circumstances (R v Canadian Broadcasting Corporation, 2018 SCC 5 at para 27). As the Supreme Court of Canada explained in Google Inc v Equustek Solutions Inc, 2017 SCC 34 at paragraph 25: “The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. This will necessarily be context-specific.”

A. Serious Issue

[12] The Applicant asserts that the Officer’s consideration of the outstanding spousal sponsorship application unreasonably focused solely on the question of imminence, failing to engage with the record, including in particular the facts leading up to the filing of the present sponsorship application.

[13] While the imminence of a decision is certainly a relevant consideration, as found by the Officer, I agree with the Applicant that it is not necessarily determinative (Ortiz v. Canada (Public Safety and Emergency Preparedness), 2017 FC 93, at para 13). This Court has, moreover, previously found that the timeliness of an outstanding application is also a relevant consideration, and may justify deferring removal even if a decision does not appear to be imminent (Toney v Canada (Public Safety and Emergency Preparedness), 2019 FC 1018 at paras 47-57; Villanueva v. Canada (Public Safety and Emergency Preparedness), 2010 FC 543 at paras 36-37).

[14] It is true that Ms. Solar Sepulveda’s current spousal sponsorship application was filed just days before the deferral request was made. But the submissions and record before the Officer demonstrated that she has been seeking consideration of her request to remain in Canada permanently under the sponsorship of her long-time common law partner for almost eight years now, by applications filed in 2018, 2024 and 2026, and that the two previous applications had processing “cancelled” by IRCC (for reasons that were not clearly established before the Court or the Officer). While the fact that the current application is a continuation of the previous ones does not necessarily justify granting a deferral, it was certainly relevant to the determination of whether the application was “timely” and needed to be addressed by the officer. The Applicant raises a strong argument, one that I find is likely to succeed, that the decision lacks the “hallmarks of reasonableness” in that it is not justified in relation to the facts and submissions that were put to the officer in relation to the spousal sponsorship application (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 99, 106, 126-128 (Vavilov).

[15] The same may be said of the Officer’s treatment of the submissions and evidence regarding the hardship facing Ms. Solar Sepulveda and her partner if removal is not deferred. The record before the Officer included detailed and deeply personal sworn evidence about the relationship and mutual emotional and financial interdependence of Ms. Solar Sepulveda and her partner and their fears for their wellbeing should they be separated after eight years together. These affidavits were supported and corroborated by letters from those who know them best. This evidence at least arguably took their situation outside the so-called “usual consequences” of removal and at the very least warranted some analysis by the Officer. While counsel for the Respondent offered reasons why these considerations might not have been sufficient to support a deferral of removal, this Court is limited on judicial review to assessing what the officer actually said, not what counsel or the court might have said in the officer’s place. The Applicant raises a serious issue regarding the unreasonable failure of justification on this point, one that I find is likely to succeed on judicial review.

B. Irreparable harm

[16] Although the evidentiary record provided by counsel for Ms. Solar Sepulveda is not a strong one regarding the matter of irreparable harm, I find that there is nevertheless sufficient evidence contained in the uncontradicted affidavits and support letters to demonstrate that the psychological and emotional harm facing Ms. Solar Sepulveda and her partner is severe and is of a type that is “not susceptible or difficult to be compensated in damages” (Metropolitan Stores at para 35; Toth). Given the length of time that the Applicant and her partner have been in a mutually supportive common law relationship and the deep mutual dependence they have built up over nearly a decade together, along with the reality that if Ms. Solar Sepulveda is removed, the sponsorship application will no longer be processed and a new application for sponsorship – a fourth application – will have to be filed, I find that non-speculative irreparable harm is made out.

C. Balance of convenience

[17] Notwithstanding the importance of the Respondent’s public duty to enforce removal as soon as possible, I am satisfied that the balance of convenience favours the Applicant, given the serious issues with the underlying decision, the nature of the harm facing Ms. Solar Sepulveda and her partner if she is removed, and their repeated attempts to obtain a decision on whether Ms. Solar Sepulveda will be permitted to remain in Canada permanently under the sponsorship of her common law partner.

III. Conclusion

[18] In all the circumstances, I am satisfied that it is just and equitable to grant Ms. Solar Sepulveda the relief she seeks, and I will do so.

[19] It is important to observe, in closing, that had this Court accepted the preliminary “do not hear” request by the Respondent, Ms. Solar Sepulveda would have been deprived of a remedy to which I have found she is entitled. This is very troubling.

[20] Although I accept the apology provided by Counsel for the Respondent, who said he had inadvertently used the wrong precedent for his letter, I believe it is prudent to remind the Respondent that this Court’s supervisory function is directly engaged by requests for interim injunctive relief, including stays of removal. In this case and in many others, a stay of removal is required to ensure that judicial review of administrative action remains meaningful and able to provide effective remedies. As such, requests to the Court to decline to even hear stay motions should be reserved for clear cases, such as when the relief sought is unavailable or the motion is an abuse of process. Making such requests in other situations is strongly discouraged as it risks miscarriages of justice and may be a waste of scarce judicial resources.

ORDER in IMM-3521-26

THIS COURT ORDERS that:

1. The motion is granted.

2. The Applicant’s removal from Canada is stayed.

3. The Applicant shall not be removed from Canada pending the determination of her application for leave and judicial review of the decision refusing to defer her removal.

"Andrew J. Brouwer"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: