Date: 20080313
Docket: IMM-1142-08
Citation: 2008 FC 343
BETWEEN:
RENATA ARINA MAKIAS
OR MAKIAS
SHANY MAKIAS
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
AND THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR
ORDER
(Order
delivered on March 12, 2008)
HARRINGTON J.
[1]
Here
are but a few of the reasons why young Or and his sister Shany do not want to
be removed from Canada and into the custody of their father in Israel:
“My dad would always used to threatened to
kill me and my sister and that’s why I’m scared of going back to my dad in Israel. He would run after me with a
hammer in his hands trying to hit me with it. My dad would also always tell me
and my sister that if we would ever bring any of are friends home he would
throw them out of the window and by the way we leaved in the 4th
floor. My dad almost killed my mom once by throwing a very heavy cup of glass
and he would always throw stuff at her like cell phones or house phone or
plates, My dad would always beat me and my sister very bad and he would do it
for small thing like not giving him the TV remote.”
[2]
Their
mother, the principal applicant, Renata Makias, has applied for permanent
resident status in Canada, and asked that they be permitted to remain here
while that application is being processed. The Minister of Citizenship and
Immigration has discretion under s. 25 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA), to so allow. However, the Officer
appointed to make the decision refused to do so on March 5th. An
application for leave and for judicial review of that decision has been filed,
but cannot be heard for a few months. In the meantime, Mrs. Makias and her two
children were ordered to be removed back to Israel today. They
applied for a stay of that order pending resolution of their application for
leave and for judicial review. These are the reasons why I granted their stay
motion yesterday.
[3]
Mrs.
Makias, her husband Yossef, and their two children, Or and Shany, came to Canada from Israel in 2003, and
claimed refugee status. The decision was negative, as was the subsequent
decision on their pre-removal risk assessment.
[4]
Mrs.
Makias failed to appear for her removal in 2005. A warrant for arrest was
issued against her, she was recently arrested and is currently in detention
near Montreal. She
refuses to divulge the whereabouts of her children.
[5]
The
marriage unravelled in June 2004. The police arrested Mr. Makias and charged
him with uttering threats to cause death or bodily harm to his wife. He was
released on conditions which included a restraining order that forbade him from
having any contact with his wife or his children. He did not respect those
conditions and was convicted of “breach of reconnaissance”. In July 2005, he
was either removed or returned to Israel.
[6]
By
then, Mrs. Makias had moved to Montreal and on March 8th,
2006 was granted a divorce by the Quebec Superior Court as well as custody of
the two children. Mr. Makias has moved to vacate that order, which motion was
dismissed by the Quebec Superior Court in October of last year. That last
order is in appeal and will be heard next month.
[7]
Notwithstanding
the divorce decree and custody order, on November 16, 2006 Mr. Makias obtained
what I can only call a disturbing order from the Regional Rabbinical Court of
Tel Aviv. The court noted that Mrs. Makias and the children were in Canada without
status and that an arrest warrant had been issued against her. The court
granted custody of the children to their father and ordered Mrs. Makias to
transfer the two children to him “immediately and with no further delay”. It
declared that the decision could be enforced by any competent court either in
Israel or in Canada. The
judgment also deals with a Get (religious divorce), which is not directly
relevant to this decision.
[8]
What
is of concern is that although Mrs. Makias was in Canada, and not in Israel, so
that in one sense the decision could be said to have been rendered in absentia,
the court noted that she had responded.
[9]
Either
the court was not made aware of the restraining order which Mr. Makias
breached, as well as the divorce and custody order, or it considered the orders
of courts in British
Columbia
and Quebec irrelevant.
In any event, the moment Or and Shany step off the tarmac in Israel, their
father will take custody. He is well aware of these proceedings as his
Canadian lawyer was in the audience.
CONDITIONS FOR A STAY
[10]
It
is well established that in order to obtain the equitable remedy of a stay the
applicants must show a reasonably arguable case (meaning not frivolous or
vexatious); irreparable harm and that the balance of convenience favours them (Toth
v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587, (1988), 86 N.R. 302 ;
RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311).
[11]
There
is a serious argument to be made that leave and judicial review should be
granted. I need only mention that while the officer noted that the Israeli
Rabbinical Court had granted the husband custody, she was of the view Mrs.
Makias could apply to a civil court for a re-evaluation. It is unclear how she
reached that conclusion, but in any event it is strongly arguable that she did
not take into account the best interests of the children, as specifically
required by s. 25 of IRPA.
[12]
As
to irreparable harm, a strong case has been made out that Mrs. Makias and her
children, or at least her two children, face imminent peril on their return, as
there is already an order in place giving the husband custody. While no one
denies state protection is available in Israel, the status
quo there is not the status quo here.
[13]
Finally,
with respect to the balance of convenience, it may well be that Mrs. Makias
does not come to the Court with the cleanest of hands. However it must be kept
in mind that the main thrust of her actions has been to keep her children from
their father. The Minister complains that she is a scofflaw because she will
not reveal the whereabouts of her children. If she does they shall be put into
the custody of a man who has threatened to kill them. She has even gone to
jail. What mother would not do the same? The balance of convenience lies with
her.
[14]
As
noted in RJR-MacDonald, above, a motions judge must make a decision on
the basis of common sense and an extremely limited review of the case on the
merits. As so often happens, this application was brought on an urgent basis.
It is far better to preserve the Canadian status quo until the matter is
fully heard.
[15]
Once
I announced at the hearing what my decision would be, given that Mrs. Makias
remains in custody and has not disclosed the whereabouts of her children, in my
discretion, and with the consent of the parties, I shortened the normal filing
delays so that this matter may be heard as soon as possible.
“Sean
J. Harrington”
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