J.H. v. F.A., 2009 ONCA 17

CITATION: J.H. v. F.A., 2009 ONCA 17

DATE: 20090113

DOCKET: C48575

COURT OF APPEAL FOR ONTARIO

Doherty, Weiler and MacFarland JJ.A.

BETWEEN

J. H.

Applicant (Appellant)

and

F.A.

Respondent (Respondent)

and

The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness

Interested Parties (Respondents)

Sheilagh O’Connell, for the appellant

No one appearing, for the respondent, F.A.

Alexis Singer, Bernard Assan and Sharon Stewart-Guthrie, for the respondents, The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness

Heard: January 5, 2009

On appeal from the order of Justice George Czutrin of the Superior Court of Justice, dated February 29, 2008 and reported at (2008), 2008 ONSC 7748, 89 O.R. (3d) 514.

Weiler J.A.:

OVERVIEW

[1] The issue on this appeal is whether the appeal court judge erred in vacating an order prohibiting the removal of the appellant’s children from Ontario. The order was made as an incident to granting the appellant’s unopposed custody application. The appeal court judge held that the order was not made in relation to a family law lis but was made to effect a stay of the order directing the removal of the appellant and her eldest daughter by immigration authorities.

[2] For the reasons below, I would hold that the appeal court judge did not err in vacating the non-removal order.

FACTS

[3] The appellant is a citizen of St. Lucia. She moved with her daughter, Jewel, also a citizen of St. Lucia, to Ontario in the summer of 2003. Following their arrival, the appellant made a refugee claim on behalf of herself and Jewel in relation to threats by an abusive ex-boyfriend and the alleged failure of the state to protect her and her daughter from domestic violence. The claim was denied on November 14, 2003. The Refugee Protection Division member found the appellant credible and believed her history but concluded that she had failed to rebut the presumption of state protection.

[4] The appellant applied for leave to appeal and for judicial review of the decision. Her application was denied on March 24, 2004. The appellant says that she was then incorrectly advised to wait for a pre-removal risk assessment (“PRRA”).

[5] In the meantime, the appellant became involved with the respondent F.A. The two had a child together named Fianna. The appellant and F.A. lived together in Ontario from approximately January 2004 to sometime in 2005 when they separated. F.A. is on good terms with the appellant and has seen Fianna on a weekly basis since the parties separated. He has married another woman and does not want custody of Fianna but wishes to continue to have frequent and regular access with her.

[6] In November of 2005, Jewel and Fianna were removed from the appellant’s care by the Children’s Aid Society of Toronto (the “Society”).

[7] On August 1, 2006, the appellant’s PRRA assessment application was denied. The immigration officer affirmed the Board’s earlier finding at her refugee hearing that the existence of state protection negated the necessity for international protection.

[8] The appellant and Jewel were scheduled to be removed from Canada on September 17, 2006. However, the removal order was deferred pending the resolution of the child protection proceedings at the request of the appellant and the Society.

[9] In October 2006, the appellant applied on behalf of herself and Jewel to remain in Canada on humanitarian and compassionate (“H&C”) grounds. The appellant says that the delay in filing the application was due to incorrect advice received by an immigration official in 2004. The respondents say they have no knowledge of any such advice being given.

[10] The H&C application was based primarily on the best interests of the children. Specifically, the appellant argued that: (1) the children would be exposed to domestic violence or would witness violence against the appellant by her ex-boyfriend if they were sent back to St. Lucia; (2) Jewel needed to remain in Canada to get adequate treatment for a learning disability which is unavailable in St. Lucia; and, (3) Fianna is a Canadian citizen who has lived in Canada all her life; she would be deprived of a relationship with her father who is unable to care for her permanently and would suffer greatly from separation from her mother and sister.

[11] On January 11, 2007, the Ontario Court of Justice made a final order terminating the Society’s supervision of the appellant’s care of the children.

[12] On February 1, 2007 the appellant received a Direction to Report to Pearson Airport for deportation on February 26. At this time, the H&C application had not been considered.

[13] On February 15, 2007, the appellant’s counsel requested that the removal order be deferred pending a full consideration of the children’s best interests as set out in the pending H&C application. This request was rejected. The enforcement officer noted that Jewel would be able to obtain whatever educational support there was available in St. Lucia, however inferior it would be according to Canadian standards. Furthermore, he observed that Jewel’s learning disability was permanent and would likely require an indefinite deferral of removal which could only be granted in very exceptional cases. The officer also noted that the matter had been deferred pending the child protection proceedings and that no further impediments to deportation existed.

[14] On February 23, 2007, the appellant brought an application before Scully J. in the Ontario Court of Justice for custody of her two children and a non-removal order. She admitted that the reason for the request was to obtain a court order that would trigger the statutory stay of the removal order under s. 50(a) of the Immigration and Refugee Protection Act, 2001, c. 27, I-2.5 (“IRPA”). That section provides:

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;

[15] The Ministers were given short notice and an opportunity to intervene.

THE MOTION JUDGE’S DECISION

[16] The motion judge granted the appellant’s application for custody and the non-removal order. He further ordered:

2. As an incident of custody, both children shall remain in the direct physical care and control of the mother, [J.H.] pending further order of this Court

3. Neither child, Jewel or Fianna, is to be removed from the Province of Ontario pending further order of this Court

[17] The motion judge reasoned that while other courts may at times take the best interests of children into consideration, they are not mandated to do so. He observed that the only courts that must make such a decision are the Superior Court and the Court of Justice pursuant to the provisions of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

[18] The motion judge accepted the Society’s conclusion that the appellant was a mother who could be trusted with the care of her children. He found that it would not be in Fianna’s best interests to be separated from her mother and sister. He also accepted the appellant’s contention that since Fianna’s father would not be willing or able to take custody of her, she would be deprived of a relationship with her father in the absence of a non-removal order.

[19] With respect to Jewel, the motion judge expressed concern that if she were removed from Ontario she would be at risk of serious harm if exposed to domestic violence or if she witnessed violence committed against her mother. He accepted the appellant’s contention that it would not be in Jewel’s best interests to be removed from Canada prior to the H&C application given her learning disability which, based on the uncontradicted evidence, would not be adequately addressed by the St. Lucia school system.

THE APPEAL JUDGE’S DECISION

[20] The respondent Ministers successfully appealed the motion judge’s decision. The essence of the appeal court judge’s decision may be summarized as follows:

• There was no family law lis before the motions judge.

• The motions judge’s non-removal order amounted to a circumvention of immigration law.

• The interests of the appellant’s children would be adequately considered by the Federal Court on a motion for a stay of removal.

[21] The appellant challenges each of these conclusions.

ANALYSIS

[22] While the custody order may have been appropriate,[^1] the non-removal order as an incident of custody was not.

[23] The purpose of non-removal orders under the CLRA is not to frustrate the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation but to prevent parents from removing children from the jurisdiction in contested family law proceedings: see Wozniak v. Brunton (2004), 2004 ONSC 19764, 1 R.F.L. (6th) 429 (Ont. S.C.), at para. 23; Varvara v. Constantino, [2005] O.J. No. 861 (Q.L.), at para. 33. It is not open to applicants scheduled to be removed by federal immigration authorities to use the family courts to stay in Ontario “under the guise of determining [the] best interests of a child”: Augustin v. Canada (M.P.S.E.P) and Leonty (27 February 2008), Toronto 07/FA/014805 (Ont. S.C.), at para. 9.

[24] In this case, there was no family law dispute with respect to incidents of custody between the parents. One child’s father had not participated in the proceedings at all. The other had no desire for custody. There was no suggestion that any of the parties had any interest in removing children from Ontario. The relevant paragraphs of the order were aimed not at the parents of the child but at the respondent Ministers pending the outcome of the H&C application. The CLRA should not be used to frustrate the IRPA. The IRPA and related legislation is the forum in which to address immigration and related claims.

[25] In any event, even if the motions judge’s order was restored, recent jurisprudence from the Federal Court of Appeal, the court charged with the primary responsibility of interpreting the IRPA, indicates that the CLRA order would not affect a s. 50(a) statutory stay of the removal order. In Idahosa v. The Minister of Public Safety and Emergency Preparedness, 2008 FCA 418, Evans J.A. on behalf of a unanimous court, held at para. 59:

[p]aragraph 50(a) does not apply to a provincial court’s order awarding custody to a parent of Canadian-born children for the purpose of delaying or preventing the enforcement of a removal order against the parent, when there is no lis respecting custody that is unrelated to the removal.

[26] In coming to this conclusion, Evans J.A. held that the IRPA provides opportunities for the consideration of the best interests of the children of those subject to deportation. He also stated at para 54:

While great weight must be given to the best interests of children in administrative decision-making, they do not necessarily outweigh all other considerations: Baker v. Canada (Minister of Citizenship and Immigration), 1999 SCC 699, [1999] 2 S.C.R. 817 at para 75; Canadian Foundation of Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 268 at para 10.

[27] I agree with and would apply this analysis to the consideration of whether the non-removal order should have been made in the circumstances of this case. The reasoning in Idahosa is consistent with the Ontario cases which indicate that non-removal orders under the CLRA should not be granted for the purpose of frustrating removal orders in immigration proceedings.

[28] Furthermore, as the appeal judge observed, it is open to the appellant to make an application in the Federal Court for a stay of removal pending the determination of her H&C application. This is the appropriate forum for consideration and weighing of the various competing interests.

CONCLUSION

[29] On the facts of this case, the non-removal order ought not to have been made and the appeal judge did not err in vacating it. Accordingly, I would dismiss the appeal.

[30] In view of the novel issue presented on this appeal, the respondents are not seeking costs and I would award no costs.

RELEASED: January 13, 2009

“KMW” “K.M. Weiler J.A.”

“I agree Doherty J.A.”

“I agree J. MacFarland J.A.”

[^1]: Nothing in the CLRA restricts custody applications to a “custody contest between the parties” or a contest over “competing parenting plans”. Indeed, the CLRA contemplates that custody orders may be made absent a contest between the parents. Section 62(5) contemplates custody orders where the identity of the father is not known or capable of being ascertained. Moreover, family courts routinely make custody orders for collateral purposes such as school registration or passport application if it is in the best interest of the children to do so.