Basha et al. v. Lofca et al., (2013) 554 A.R. 175 (QB)

• Judge: Germain, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 13, 2013
• Citations: (2013), 554 A.R. 175 (QB);2013 ABQB 159

Basha v. Lofca (2013), 554 A.R. 175 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MR.142

Bamir Basha and Panagoula (Patricia) Pantelis Foufas (respondents/applicants) v. Shkelqim Lofca (respondent/respondent) and The Attorney General of Canada (applicant/intervener)

(proposed)

(FL03 22089; 2013 ABQB 159)

Indexed As: Basha et al. v. Lofca et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Germain, J.

March 13, 2013.

Summary:

A mother of three children came to Canada from Albania on a work permit. After she became ill, her husband and children came to Canada on temporary visas. The mother died in August 2009. The family's applications to extend their visas were denied. The children's aunt and uncle applied for guardianship of the children. An order was granted in January 2010 and included a provision that prohibited the children's removal from Alberta or Canada without further court order. A short time later, the family was asked to leave Canada voluntarily. The father complied but the children remained with the aunt and uncle. The Crown applied to vary the guardianship order by removing the provision that prohibited the children from leaving Canada.

The Alberta Court of Queen's Bench allowed the application.

Aliens - Topic 1798

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Issuance or execution precluded where impediments to removal (incl. other judicial orders) - A mother of three children came to Canada from Albania on a work permit - After she became ill, her husband and children came to Canada on temporary visas - The mother died in August 2009 - The family's applications to extend their visas were denied - The children's aunt and uncle applied for guardianship of the children - An order was granted in January 2010 and included a provision that prohibited the children's removal from Alberta or Canada without further court order - A short time later, the family was asked to leave Canada voluntarily - The father complied but the children remained with the aunt and uncle - Several applications were made to allow the children to remain in Canada on humanitarian and compassionate grounds but they were all denied - The Crown applied to vary the guardianship order by removing the provision that prohibited the children from leaving Canada - The Alberta Court of Queen's Bench allowed the application - In some limited circumstances, a provincial superior court of inherent jurisdiction could make an order that effectively blocked, at least temporarily, a person's removal by immigration authorities where there was a live and real family law litigation underway - Section 50 of the Immigration and Refugee Protection Act contemplated such an order - However, there was no real litigation underway in this case - The custody "dispute" was a tactic designed to give the children a better chance to stay in Canada - The United Nations Convention on the Rights of the Child did not give the court any additional power that it would not otherwise have to take jurisdiction and block the normal operation of the immigration system.

Courts - Topic 5600

Provincial courts - General - Concurrent and conflicting jurisdiction - General - [See Aliens - Topic 1798 ].

Courts - Topic 8348.1

Provincial Courts - Alberta - Court of Queen's Bench - Jurisdiction - Custody and access - [See Aliens - Topic 1798 ].

Family Law - Topic 2124.1

Custody and access - Jurisdiction - Where immigration proceedings pending - [See Aliens - Topic 1798 ].

Guardian and Ward - Topic 215

Appointment and qualifications of guardian - Of children - Jurisdiction - [See Aliens - Topic 1798 ].

Cases Noticed:

J.H. v. F.A. et al. (2009), 265 O.A.C. 200; 306 D.L.R.(4th) 496; 2009 ONCA 17, appld. [para. 27].

Torres-Samuels et al. v. Canada (Minister of Citizenship and Immigration) (1998), 106 B.C.A.C. 144; 172 W.A.C. 144; 49 B.C.L.R.(3d) 7; 158 D.L.R.(4th) 254 (C.A.), refd to. [para. 31].

Jones v. Canada (Minister of Citizenship and Immigration), [2000] A.R. Uned. 442; 11 Imm. L.R.(3d) 173; 2000 ABCA 325, refd to. [para. 32].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 37].

De Guzman v. Canada (Minister of Citizenship and Immigration) (2005), 345 N.R. 73; 262 D.L.R.(4th) 13; 2005 FCA 436, leave to appeal denied (2006), 356 N.R. 399 (S.C.C.), refd to. [para. 37].

Counsel:

Z. Hardin (Family Law Office), for the respondents/applicants;

Bamir Basha and Panagoula (Patricia) Pantelis Foufas, respondents/applicants, on their own behalf;

Shkelqim Lofca, on his own behalf, did not appear;

C. Ashcroft and R. Garvin (Department of Justice), for the applicant/intervener.

This application was heard on March 1 and 8, 2013, before Germain, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who released the following oral reasons for judgment on March 13, 2013.