Noel v. Canada (Minister of Citizenship and Immigration), 2001 FCT 545

Date: 20010522

Docket: IMM-983-01

Neutral Citation : 2001 FCT 545

OTTAWA, ONTARIO, THIS 22^nd DAY OF MAY 2001

PRESENT:      THE ASSOCIATE CHIEF JUSTICE

BETWEEN:

                                                    ACTON NIGEL NOEL

                                                                                                                                Applicant

                                                                   - and -

                     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                            Respondent

                                      REASONS FOR ORDER AND ORDER

LUTFY A.C.J.

1.          Even assuming the applicant may establish a serious issue, which I choose not to decide for the purposes of this motion to stay the execution of his removal order, I am satisfied he has not shown that his return tomorrow to Trinidad will cause irreparable harm.

2.          The sole issue is the impact of the applicant's deportation on his 7-year old daughter.

3.          On February 13, 2001, the applicant consented to an order that his daughter "continues to be in need of protection and that she be made a Crown Ward with supervised access to the father, at the discretion of the [Children's Aid] Society." The applicant, his daughter and her maternal grandparents were represented by separate counsel for the purposes of this consent order. Currently, the applicant's access to his daughter is two hours every other week.

4.          On February 15, 2001, the Immigration Appeal Division revoked a previous panel's stay of the execution of the applicant's deportation order and ordered that the removal be executed as soon as reasonably practicable. The reasons for decision of February 15, 2001 satisfy me that the panel was alive, attentive and sensitive to the interests of the applicant's daughter: Baker at paragraph 75.

5.          There is no evidence before me, direct or otherwise, which raises any new material circumstances concerning the ongoing need for the protection of the daughter under the Children's Aid Society. There is no evidence that the applicant provides financial support to his daughter. His parental rights have been suspended by the consent order. The emotional support for his daughter which may result from his physical access, as opposed to other forms of communication, is currently limited to less than sixty hours on an annual basis. The applicant's argument based on the possibility of a change of circumstances in the future is purely speculative and cannot establish irreparable harm.

6.          Finally, the consent order in the Children's Aid Society proceeding cannot be one contemplated by section 50 of the Immigration Act. Otherwise, persons who face deportation but have access to their children in Canada without a court order would not have the rights the applicant is attempting to assert under section 50.

                                                                 ORDER

Accordingly, this motion is dismissed.

                                                                                                                           "Allan Lutfy"                 

                                                                                                                                      A.C.J.