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

• Judge: Doherty, Weiler and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 05, 2009
• Jurisdiction: Ontario
• Citations: 2009 ONCA 17;(2009), 265 O.A.C. 200 (CA)

J.H. v. F.A. (2009), 265 O.A.C. 200 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AU.001

J.H. (applicant/appellant) v. F.A. (respondent/respondent) and The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness (interested parties/respondents)

(C48575; 2009 ONCA 17)

Indexed As: J.H. v. F.A. et al.

Ontario Court of Appeal

Doherty, Weiler and MacFarland, JJ.A.

January 13, 2009.

Summary:

A mother of two children was (a) a citizen of St. Lucia, (b) awaiting her deportation from Canada, and (c) awaiting the determination of her application to remain in Canada on humanitarian and compassionate grounds. One of her children was born in St. Lucia. The other was born in Canada. The mother applied in the Ontario Court of Justice for the custody of her children and an order prohibiting their removal from Ontario. The application was uncontested. The federal Ministers of Citizenship and Immigration and of Public Safety and Emergency Preparedness were given notice of the application.

The Ontario Court of Justice allowed the application. The Ministers appealed.

The Ontario Superior Court allowed the appeal and vacated the non-removal order. The mother appealed.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

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 two children was (a) a citizen of St. Lucia, (b) awaiting her deportation from Canada, and (c) awaiting the determination of her application to remain in Canada on humanitarian and compassionate grounds (H&C) - One of her children was born in St. Lucia - The other was born in Canada - The mother applied in the Ontario Court of Justice, under the Children's Law Reform Act (Ont.) (CLRA) for the custody of her children and an order prohibiting their removal from Ontario - The application was uncontested - The mother admitted that her objective was to obtain a court order that would trigger the statutory stay of removal under s. 50(a) of the Immigration and Refugee Protection Act (IRPA) - The mother's application was allowed at first instance but the non-removal order was vacated on appeal - The Ontario Court of Appeal stated that non-removal orders under the CLRA should not be granted for the purpose of frustrating removal orders in immigration proceedings - However, the mother was entitled to apply in the Federal Court for a stay of removal pending the determination of her H&C application - See paragraphs 1 to 30.

Aliens - Topic 1800

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Stay of (incl. termination of stay) - [See Aliens - Topic 1798 ].

Cases Noticed:

Wozniak v. Brunton et al., [2004] O.T.C. 240; 1 R.F.L.(6th) 429 (Sup. Ct.), refd to. [para. 23].

Varvara v. Constantino, [2005] O.J. No. 861 (Sup. Ct.), refd to. [para. 23].

Idahosa v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 385 N.R. 134; 2008 FCA 418, consd. [para. 25].

Counsel:

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.

This appeal was heard on January 5, 2009, by Doherty, Weiler and MacFarland, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Weiler, J.A., and released on January 13, 2009.