Judgments

2005 FC 1147

IMM‑9107‑04

Lena Alexander, Crystal Roberts and Dameon Alexander by their litigation guardian Lena Alexander (Applicants)

v.

Solicitor General of Canada (Respondent)

IMM‑500‑05

Lena Alexander (Applicant)

v.

Solicitor General of Canada (Respondent)

Indexed as: Alexander v. Canada (Solicitor General) (F.C.)

Federal Court, Dawson J.—Toronto, July 18; Ottawa, August 23, 2005.

Citizenship and Immigration — Exclusion and Removal — Judicial review of decisions refusing to defer removal of Lena Alexander (applicant) — Applicant living in Canada on expired visitor’s visa, bearing two children while in Canada — Ontario Court of Justice granting interim, final custody orders; ordering children not be removed from Ontario — Applicant twice unsuccessfully seeking to have removal deferred on basis would violate Ontario Court of Justice order, contrary to Immigration and Refugee Protection Act, s. 50(a), best interests of children — Act, s. 50(a) staying removal only if decision in judicial proceeding directly contravened by enforcement of removal — Here, removal order applying to applicant, not children —  Enforcement not directly contravening Ontario Court of Justice order, no statutory stay arising — Grant of custody not requiring custodial parent to maintain physical care of child at all times — Application dismissed — Question certified as to whether family court order granting custody of child to foreign national directly violated if parent but not child removed from Canada.

Construction of Statutes — Immigration and Refugee Protection Act, s. 50(a) providing for stay of removal order if decision in judicial proceeding directly contravened by enforcement of removal order — Case law re: former Immigration Act, s. 50(1)(a) supporting interpretation of Act, s. 50(a) as requiring express provision of order be incompatible, irreconcilable with removal of person for stay to be granted — That case law of assistance here — Scheme, object of Act considered — Interpreting Act, s. 50(a) so that execution of removal order not contravening order of Ontario Court of Justice in accordance with scheme of Act — Immigration and Refugee Protection Regulations, s. 234 not providing exhaustive list of situations in which removal order not contravening court order.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Federal Court of Appeal already determining, in Langner v. Canada (Minister of Employment and Immigration), Charter, s. 7 not applying in situation of removal of custodial parent — Child having no constitutional right never to be separated from parents — Langner still binding on Court.

Administrative Law — Judicial Review — Grounds of Review — First removal officer’s decision not to defer removal of mother of Canadian children notwithstanding interim Ontario custody, non‑removal order pertaining to children, statement of legal position (i.e. that no statutory stay arose) — Duty of fairness not requiring more detailed explanation; applicant, counsel not requesting further clarification — As such, removal officer not erring by failing to provide reasons — As to second decision, removal officer not failing to provide adequate reasons — Reasons conveying why deferral refused, evidence, factors considered, permitting judicial review, consistent with scope of officer’s discretion — Second officer not fettering discretion, ignoring evidence, decision not unreasonable — Officer considering number of factors, but not required to conduct thorough review of best interests of children.

These were applications for judicial review of two decisions by removal officers refusing to defer the removal of Lena Alexander (the applicant). The applicant, a citizen of Grenada, entered Canada in 1994 and remained here illegally following the expiry of her visitor’s visa. While in Canada, she gave birth to two children (in 1999 and 2002), and in 2004 filed an application for custody of these children, as well as for an order prohibiting the removal of these children from Ontario, in the Ontario Court of Justice. These orders were granted on an interim basis by the Ontario Court of Justice. The applicant then sought to have her removal to Grenada deferred on the basis that the Ontario Court of Justice orders created a statutory stay of her removal pursuant to paragraph 50(a) of the Immigration and Refugee Protection Act (first decision), but the first officer determined that the interim order did not give rise to a statutory stay. The Ontario Court of Justice later issued its final order, granting the applicant custody of her two children and extending the order of non‑removal of the children for six months. The applicant once again sought unsuccessfully to have her removal deferred (second decision),  pending a decision on a second Humanitarian and Compassionate (H&C) application. The applicant argued, inter alia, that removing her would be contrary to the best interests of her children and would violate the Ontario Court of Justice’s orders.

Held, the application should be dismissed.

Paragraph 50(a) of the Act provides that a removal order is stayed if a decision that was made in a judicial proceeding would be directly contravened by the enforcement of the removal order. The decisions at issue here were the Ontario Court of Justice’s orders that the children not be removed from Ontario. As the removal order only applied to the applicant, its enforcement would not directly contravene the orders of the Ontario Court of Justice. Accordingly, no statutory stay arose pursuant to paragraph 50(a) of the Act. In light of the similarity between paragraph 50(1)(a) of the former Immigration Act and paragraph 50(a) of the current Act, the case law relating to paragraph 50(1)(a) could be of assistance in interpreting the current provision. This case law supported the interpretation of paragraph 50(a) as requiring that an express provision of an order be incompatible or irreconcilable with removal of the person concerned for a stay to be granted. The scheme and object of the Act also had to be considered. Central aspects of that scheme include the fact that non‑citizens do not have an unqualified right to enter and remain in Canada, and that the best interests of affected children is but one factor to be considered under the Act. The presence of a child in Canada is not, by itself, an absolute impediment to the removal of a parent. Here, interpreting paragraph 50(a) so that execution of the removal order would not directly contravene the orders of the Ontario Court of Justice was in accordance with the scheme of the Act. The grant of custody, or sole custody, does not necessitate that the custodial parent maintain physical care of a child at all times. As for the Convention on the Rights of the Child, the implementation of the Act and the enactment of its paragraph 3(3)(d) (which provides that one of the objectives of the Act is to see that families are reunited in Canada) has not incorporated the Convention into Canadian domestic law. The Convention was of no assistance to the applicant in the present instance. Finally, section 234 of the Immigration and Refugee Protection Regulations is not intended to provide an exhaustive list of situations in which execution of a removal order would not contravene a court order.

Turning to whether the removal of a custodial parent breaches section 7 of the Charter, the Federal Court of Appeal determined in Langner v. Canada (Minister of Employment and Immigration) that in these circumstances, the Charter has no application, and a child has no constitutional right never to be separated from his or her parents. Nothing in section 3 of the Act overtakes Langner, which continues to be a valid and binding authority upon the Court.

With regard to the first decision, the removal officer did not err by failing to provide reasons. The officer responded by letter to counsel’s assertion that a statutory stay arose from the Ontario Court of Justice’s interim order, stating the Canada Border Services Agency’s position that no such stay arose. This was a statement of a legal position and the duty of fairness did not require a more detailed explanation or response. Furthermore, the applicant or her counsel did not request further clarification as they should have done if they considered the officer’s response to be inadequate. As such, no breach of the duty of fairness was established.

With regard to the second decision, the officer did not fail to provide adequate reasons. Consideration was given to the following: (1) Enforcement officers have a limited discretion to defer removal; (2) The reasons of such an officer tell the person concerned why a particular decision was made and provide the basis upon which the decision can be reviewed; and (3) The Court must be mindful of administrative concerns, i.e. the duty of fairness is to provide sufficient flexibility to decision makers by accepting that various types of written explanations may be sufficient. Here, the officer’s reasons were sufficient to convey to the applicant why the request for deferral was refused and what evidence and factors were considered in reaching a decision. The reasons also permitted the Court to judicially review the officer’s decision and were consistent with the scope of the officer’s discretion.

The second officer did not fetter her discretion and her decision was not unreasonable. She considered a number of factors, including the previous negative H&C application, the time available to the applicant to prepare for removal, and the fact that the children could remain in Canada. The officer was not required to conduct a thorough review of the best interests of the children, and she did not ignore evidence and make her decision without regard to the evidence, in a perverse and capricious manner. The evidence that was not mentioned was not of such significance, in light of the unique circumstances of the case, as to suggest that the officer did not have proper regard to the evidence. Consideration of the applicant’s arguments concerning the evidence allegedly ignored by the officer led to the conclusion that the officer’s decision was not unreasonable, or made without regard to the evidence before her.

A question was certified as to whether a family court order granting to a foreign national custody of his child would be directly contravened within the contemplation of paragraph 50(a) of the Act if the parent, but not the child, were removed from Canada.

statutes and regulations judicially

considered

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 7.

Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3.

Immigration Act, R.S.C., 1985, c. I‑2, s. 50(1)(a).

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3, 25(1), 48, 50(a).

Immigration and Refugee Protection Regulations, SOR/2002‑227, s. 234.

Interpretation Act, R.S.C., 1985, c. I‑21, s. 12.

cases judicially considered

applied:

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; De Guzman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 162; (2004), 245 D.L.R. (4th) 341; 29 Admin. L.R. (4th) 291; 124 C.R.R. (2d) 189; 257 F.T.R. 290; 2004 FC 1276; Charkaoui (Re), [2005] 2 F.C.R. 299; (2004), 247 D.L.R. (4th) 405; 126 C.R.R. (2d) 298; 42 Imm. L.R. (3d) 165; 328 N.R. 201; 2004 FCA 421; Langner v. Canada (Minister of Employment and Immigration) (1995), 29 C.R.R. (2d) 184; 184 N.R. 230 (F.C.A.); Liang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1301 (T.D.) (QL).

considered:

Alexander v. Powell (2005), 13 R.F.L. (6th) 7 (Ont. H.C.); Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; (1998), 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1; Mobtagha v. Canada (Minister of Employment and Immigration) (1992), 53 F.T.R. 249 (F.C.T.D.); Cuskic v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 3; (2000), 148 C.C.C. (3d) 541; 9 Imm. L.R. (3d) 5; 261 N.R. 73 (C.A.); Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358; (2002), 212 D.L.R. (4th) 139; 20 Imm. L.R. (3d) 119; 288 N.R. 174; 2002 FCA 125; Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555; (2002), 222 D.L.R. (4th) 265; 24 Imm. L.R. (3d) 34; 297 N.R. 187; 2002 FCA 475; Chou v. Chou (2005), 253 D.L.R. (4th) 548; [2005] O.T.C. 256 (Ont. S.C.); Thomas v. Canada (Minister of Citizenship and Immigration), 2003 FC 1477; VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25; (2000), 193 D.L.R. (4th) 357; 26 Admin. L.R. (3d) 1; 261 N.R. 184 (C.A.); Simoes v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219; 7 Imm. L.R. (3d) 141 (F.C.T.D.); Cepeda‑Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.); Lukic v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 325 (T.D.) (QL); John v. Canada (Minister of Citizenship and Immigration) (2003), 231 F.T.R. 248; 2003 FCT 420; Martinez v. Canada (Minister of Citizenship and Immigration), 2003 FC 1341.

referred to:

Adviento v. Canada (Minister of Citizenship and Immigration) (2003), 242 F.T.R. 295; 33 Imm. L.R. (3d) 13; 2003 FC 1430; Wozniak v. Brunton (2003), 28 Imm. L.R. (3d) 1; [2003] O.T.C. 386; 38 R.F.L. (5th) 443 (Ont. S.C.J.); Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; (2004), 234 D.L.R. (4th) 257; 180 C.C.C. (3d) 353; 16 C.R. (6th) 203; 315 N.R. 201; 183 O.A.C. 1; 46 R.F.L. (5th) 1; 2004 SCC 4; Augustus v. Gossett, [1996] 3 S.C.R. 268; (1996), 138 D.L.R. (4th) 617; 34 C.C.L.T. (2d) 111; 202 N.R. 241; Prasad v. Canada (Minister of Citizenship and Immigration) (2003), 28 Imm. L.R. (3d) 87; 2003 FCT 614; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th)1; 50 Admin. L.R. (2d) 199; 71 C.P.R. (3d) 417; 209 N.R. 20; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247; (2003), 257 N.B.R. (2d) 207; 223 D.L.R. (4th) 577; 48 Admin. L.R. (3d) 33; 31 C.P.C. (5th) 1; 302 N.R. 1; 2003 SCC 20.

APPLICATION for judicial review of two decisions by removal officers refusing to defer the applicant Lena Alexander’s removal from Canada. Application dismissed.

appearances:

Amina S. Sherazee and Carole Simone Dahan for applicants.

Gregory G. George for respondent.

solicitors of record:

Downtown Legal Services and Refugee Law Office, Toronto, for applicants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order and order rendered in English by

[1]Dawson J.: While the applicant, Ms. Alexander, raises a number of issues in these applications for judicial review, the most significant are:

1. Does an order of the Ontario Court of Justice [Alexander v. Powell (2005), 13 R.F.L. (6th) 7] granting Ms. Alexander sole custody of her two Canadian-born children, and further ordering that they not be removed from Ontario, create a statutory stay pursuant to paragraph 50(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) so as to stay operation of a valid removal order issued in respect of Ms. Alexander?

2. Does the removal of a custodial parent breach section 7 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (Charter) by violating the right of the parent’s child to “security of the person” because the removal interferes with the child’s right to family life?

[2]These issues arise out of the following facts.

FACTUAL BACKGROUND

[3]Ms. Alexander is a citizen of Grenada who arrived in Canada as a visitor on July 31, 1994. After her visitor’s visa expired, she remained in Canada without lawful status. In the course of her stay here she has received a negative determination in respect of a refugee claim, a negative decision in respect of a humanitarian and compassionate (H&C) application, and a negative pre‑removal risk assessment (PRRA). While in Canada she gave birth to two children, Crystal, born in 1999, and Dameon, born in 2002.

[4]In June of 2004, Ms. Alexander filed an application for custody of Dameon, and for child support, in the Ontario Court of Justice. In October of 2004, the application was amended at Ms. Alexander’s request to include a claim for custody of Crystal and a request for an order prohibiting the removal of the children from Ontario. Ms. Alexander admits that, knowing that she faced removal from Canada, the non‑removal order was sought by her in order to assist her efforts to keep her together with her children in Canada. There is no evidence of any pending custody dispute with the father of either child that led to the court application. Ms. Alexander had not heard from the father of Crystal after he learned she was pregnant and had been unable to locate him. Dameon’s father had ended his relationship with Ms. Alexander when he learned she was pregnant. He responded to the Court proceedings by denying paternity. As set out in more detail at paragraph 83, Ms. Alexander was reported by the media to admit that she sought the non‑removal order in order to force immigration officials into deferring her removal from Canada pending a new application for landing from within Canada.

[5]On October 27, 2004, as a result of her application, the Ontario Court of Justice issued an interim order granting Ms. Alexander sole custody of both of her children. The order also provided that the children not be removed from the province of Ontario without further order of that Court. The operative portions of the Court’s order are set out in Appendix A to these reasons. While the Minister was served with the motions materials that gave rise to that order, and so was given the opportunity to make submissions before the Ontario Court of Justice, the Minister was not represented at the hearing and so made no submissions to the Court. While counsel for Ms. Alexander raised the issue, nothing, in my view, turns on why the Minister was not represented at that hearing. The applicable legislation only requires that the Minister be provided with the opportunity to make submissions.

[6]Ms. Alexander was, at the time the interim order was issued, scheduled for removal to Grenada on November 4, 2004. In consequence, her counsel faxed a copy of the interim order to a removal officer (first officer) together with a letter which asserted that the interim order of the Ontario Court of Justice created a statutory stay of Ms. Alexander’s removal, pursuant to paragraph 50(a) of the Act. Notwithstanding this advice, on November 1, 2004, the first officer determined that the interim order did not give rise to a statutory stay and that Ms. Alexander’s removal would take place on November 4 as scheduled. Ms. Alexander now seeks judicial review of that decision (first decision) in IMM‑9107‑04.

[7]Ms. Alexander was then successful in obtaining from Madam Justice Layden‑Stevenson of this Court an interim stay of her removal until December 17, 2004. On December 16, 2004, further argument was heard before the Ontario Court of Justice and the Minister participated in that hearing, opposing the issuance of a further non‑removal order. At the conclusion of argument on December 16, the Court continued its interim order and indicated that a final decision would be released on or before January 21, 2005. Counsel for Ms. Alexander advised the Court that, if the Federal Court dismissed her motion for a stay of removal on December 17, 2004, Ms. Alexander could make an urgent motion to the Ontario Court of Justice to vary the interim order so as to permit Ms. Alexander to take her children to Grenada. The Court confirmed this was an option available to Ms. Alexander.

[8]On December 17, 2004, Ms. Alexander obtained a further order from Madam Justice Layden‑Stevenson. Such order continued the stay of Ms. Alexander’s removal until January 30, 2005, but provided that, after that date, the Minister was free to execute removal. Justice Layden‑Stevenson found Ms. Alexander to have raised no serious issue. The interim stay was continued to afford to Ms. Alexander an opportunity to make any necessary arrangements for her removal.

[9]On January 19, 2005, the Ontario Court of Justice issued its final order, granting Ms. Alexander custody of her two children, ordering that the children not be removed from the province of Ontario for six months, and granting Dameon’s father access rights. The operative portions of that order are set out at Appendix B to these reasons. The order indicated that Ms. Alexander could bring the matter back to Court to consider an extension of the six‑month period if she wished to present further evidence concerning the situation in Grenada. The six‑month period expired on the date these applications for judicial review were argued orally. Counsel advised that no extension had been sought from the Ontario Court of Justice, but that such an application was anticipated.

[10]On January 24, 2005, Ms. Alexander again requested a deferral of her removal, then scheduled for February 1, 2005, pending a decision to be rendered on a second H&C application. The grounds for the deferral request were:

(a) It was against her children’s best interests for Ms. Alexander to be removed from Canada and in their best interests to remain in Canada;

(b) Removing Ms. Alexander alone would mean placing her children in the care of the Children’s Aid Society which was neither a reasonable nor a compassionate option;

(c) Removing Ms. Alexander alone would be contemptuous of, and would contravene, the custody, non‑removal and access order of the Ontario Court of Justice;

(d) Removing Ms. Alexander while her H&C application was pending would violate the United Nations Convention on the Rights of the Child [November 20, 1989, [1992] Can. T.S. No. 3 (Convention);

(e) Removing Ms. Alexander to Grenada in light of the country’s devastation by hurricane Ivan would deprive her of basic human rights to shelter, food and adequate medical care; and

(f) Removing Ms. Alexander to Grenada would exacerbate her diabetes in light of the lack of medical services presently available in Grenada.

[11]The request for deferral was refused by the second officer on January 26, 2005. Ms. Alexander now seeks judicial review of that decision (second decision) in IMM‑500‑05.

[12]By order dated February 14, 2005, Mr. Justice Campbell of this Court stayed Ms. Alexander’s removal until the earlier of July 19, 2005 or the determination of the underlying application for judicial review. Justice Campbell found a serious issue to be raised as to the existence of a statutory stay. He subsequently granted leave in both applications and ordered that they be consolidated for hearing. While the stay granted by Mr. Justice Campbell expired on the day following the hearing of these applications, the Minister has agreed not to remove Ms. Alexander until at least 14 days have elapsed from the release of these reasons.

[13]On June 17, 2005, the Ontario Court of Justice dismissed a motion brought by Ms. Alexander to have the second officer found to be in contempt of the January 19, 2005 order.

THE FIRST DECISION—NOVEMBER 1, 2004

[14]In response to the letter sent by Ms. Alexander’s counsel asserting that, because of the interim order, Ms. Alexander’s removal was stayed, the officer faxed a reply on November 1, 2004. The reply stated:

In response to your fax dated 27 October 2004, it is Canada Border Services Agency’s position that there is no 50(a) stay for Lena Alexander. Therefore her scheduled removal on the 04 November 2004 is still to take place.

If you require anything further, please contact me.

THE SECOND DECISION—JANUARY 26, 2005

[15]By a letter dated January 26, 2005, addressed to Ms. Alexander’s counsel, the second officer responded to the request for deferral by advising that Canada Border Services Agency has an obligation under section 48 of the Act to carry out removal orders as soon as reasonably practicable. Having considered Ms. Alexander’s request to defer the execution of her removal order, the officer did not feel that a deferral of the execution of the removal order was appropriate in the circumstances of this case. The officer confirmed that Ms. Alexander was scheduled for removal on February 1, 2005.

[16]In the officer’s notes to file, which are to be taken as the officer’s reasons, she acknowledged that the reason for the request to defer Ms. Alexander’s removal was to await the decision on the second H&C application submitted in November 2004, after a previous application was refused in September of 2004.

[17]The officer went on to note that Ms. Alexander had been given adequate time to organize her affairs, because Citizenship and Immigration has been trying to execute Ms. Alexander’s removal since 2002. There had been several deferral requests, and Ms. Alexander’s removal had in the past on a number of occasions been deferred, cancelled, or stayed.

[18]The officer observed that Ms. Alexander’s children are not subject to a removal order and can remain in Canada. In the officer’s view, Ms. Alexander would have had sufficient time to make alternative arrangements for her children in the event that she is removed from Canada.

[19]As for returning to Grenada, the officer noted that there were no outstanding moratoriums or current policies with regards to non‑removal of citizens to Grenada due to the country conditions. As well, since the hurricane in mid‑2004, Citizenship and Immigration had been removing to Grenada, and the department had been advised that residents have resumed their day-to-day activities. The officer also stated that Ms. Alexander’s PRRA application had been refused on the basis that Ms. Alexander faced no risk in returning to Grenada.

[20]Finally, the officer referred to the order of this Court of December 17, 2004 which stated that the Minister was free to execute removal of Ms. Alexander after January 30, 2005.

ISSUES

[21] Ms. Alexander raises the following issues to be determined:

In relation to the applications generally:

1. Do the interim and final Ontario Court of Justice orders, granting the applicant sole custody of her children and prohibiting their removal from Ontario, result in a statutory stay pursuant to paragraph 50(a) of the Act?

2. Does the removal of a custodial parent breach section 7 of the Charter by violating the children’s rights to “security of the person” by interfering with their right to family life? If so, is this violation a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society pursuant to section 1 of the Charter?

In relation to the first decision:

3. Did the first officer err by failing to provide reasons?

In relation to the second decision:

4. Did the second officer err by failing to provide adequate reasons?

5. Did the second officer fetter her discretion and fail to consider relevant factors in determining whether or not to defer the applicant’s removal?

6. Did the second officer ignore evidence and make a decision refusing the applicant’s deferral of removal without regard to the evidence, in a perverse and capricious manner?

[22]Ms. Alexander did not pursue the issue raised briefly in her written argument that the second decision was made unfairly because the second officer relied, in part, upon extrinsic evidence for her decision.

THE STANDARD OF REVIEW

[23]Neither party addressed this issue in their written submissions. During oral argument counsel agreed that different standards of review must be applied to the different issues raised in these applications, and agreed that the following are the appropriate standards of review.

[24]The officers’ decisions about the absence of a statutory stay should be reviewed on the standard of correctness. This is because the question is one of law: the proper interpretation and application of paragraph 50(a) of the Act. The issue of the application of the Charter is also a question of law to be decided on the standard of correctness. The provision and adequacy of reasons is a matter of procedural fairness. Therefore, determining whether the reasons provided for the two decisions at issue are adequate is a matter for this Court to decide; no “standard of review” is applicable. As for the reasonableness of the second officer’s decision, the decision of an officer whether or not to defer removal is reviewable on a standard of reasonableness simpliciter. See: Adviento v. Canada (Minister of Citizenship and Immigration) (2003), 242 F.T.R. 295 (F.C.).

ANALYSIS

[25]I turn now to consider the issues raised, in the order set out above.

1. Do the interim and final orders of the Ontario Court of Justice result in a statutory stay pursuant to paragraph 50(a) of the Act?

[26]Paragraph 50(a) of the Act states as follows:

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;

[27]Ms. Alexander also relies upon section 234 of the Immigration and Refugee Protection Regulations, SOR/2002‑227 (Regulations) which provides:

234. For greater certainty and for the purposes of paragraph 50(a) of the Act, a decision made in a judicial proceeding would not be directly contravened by the enforcement of a removal order if

(a) there is an agreement between the Department and the Attorney General of Canada or the attorney general of a province that criminal charges will be withdrawn or stayed on the removal of the person from Canada; or

(b) there is an agreement between the Department and the Attorney General of Canada or the attorney general of a province to withdraw or cancel any summons or subpoena on the removal of the person from Canada.

[28]To support her argument as to the existence of a statutory stay, Ms. Alexander submits that:

1. Having regard to section 12 of the Interpretation Act, R.S.C., 1985, c. I‑21 (set out in Appendix C to these reasons) and to the principle of statutory interpretation articulated by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paragraph 21, the legislation is to be liberally construed and interpreted harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

2. The objectives of the Act are stated, in paragraph 3(1)(d) of the Act, to include seeing that families are reunited in Canada.

3. Paragraphs 3(3)(d) and (f) of the Act require that it be construed in a manner that ensures that decisions taken under the Act are consistent with the Charter and comply with international human rights instruments which Canada has signed. One such instrument is the Convention, which, in Article 3, provides that:

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. State Parties undertake to ensure the child such protection and care as is necessary for his or her well‑being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her. . . .

4. A plain language reading of paragraph 50(a) of the Act makes it clear that it would be a contravention of the orders of the Ontario Court of Justice to remove Ms. Alexander from Canada and thus, remove the children from her physical care and custody. These orders were rendered in a judicial proceeding in which the Minister was given the opportunity to make submissions.

5. In section 234 of the Regulations, Parliament defined situations where decisions made in a judicial proceeding would not be contravened. The execution of the removal order does not fall within any one of those defined situations. This supports Ms. Alexander’s interpretation of the legislation.

[29]I note, at the outset, that the Ontario Superior Court of Justice (Family Court) has acknowledged that it is for this Court to determine whether any order of a provincial court directly contravenes a removal order issued pursuant to the Act. See, for example, Wozniak v. Brunton (2003), 28 Imm. L.R. (3d) 1 (Ont. S.C.J.).

[30]Having reviewed the jurisprudence and international conventions relied upon by the parties, I conclude that the enforcement of the removal order against Ms. Alexander would not directly contravene either the interim or final order of the Ontario Court of Justice. Accordingly, no statutory stay arose pursuant to paragraph 50(a) of the Act. My reasons for this conclusion are as follows.

[31]First, after awarding custody to Ms. Alexander, the orders went on to provide that Ms. Alexander’s children “shall not be removed from the Province of Ontario.” Applying the grammatical and ordinary sense of the phrase “directly contravened,” as found in paragraph 50(a) of the Act, I find that the orders would only be directly contravened if either of Ms. Alexander’s children were removed from Ontario. The removal order applies only to Ms. Alexander, because her two children are Canadian citizens who enjoy an absolute right to remain in Canada. Thus, the removal order does not interfere with the physical location of Ms. Alexander’s children. Faced with removal, Ms. Alexander could (as she had earlier contemplated if her request for a stay was unsuccessful) apply to the Ontario Court of Justice for a variation of its order, or Ms. Alexander could make arrangements to leave her children in Canada. Neither of those options would contravene the interim or final order.

[32]Second, paragraph 50(a) of the Act is substantially similar to paragraph 50(1)(a) of the now repealed Immigration Act, R.S.C., 1985, c. I‑2 (set out in Appendix D to these reasons). In view of the similarity between the two provisions, assistance in interpreting the current provision is provided by the jurisprudence that considered the meaning of paragraph 50(1)(a) of the former Act.

[33]In Mobtagha v. Canada (Minister of Employment and Immigration) (1992), 53 F.T.R. 249 (F.C.T.D.) my colleague Mr. Justice Rouleau considered whether a deportation order was stayed in circumstances where the person subject to the order had been found not guilty of a criminal offence by reason of insanity and so had been placed in custody pursuant to an order made by the Lieutenant Governor of Quebec. At the time removal was contemplated, the requirement of incarceration had been lifted, on condition that the person concerned live in an approved place, keep appointments made by his physician or therapist, take medication, and keep the peace. Mr. Justice Rouleau reviewed the prior jurisprudence of this Court, which he found was to the effect that a stay arose under the legislation only if the person concerned was subject to a judicial order which contained specific provisions which would be violated if a deportation order was executed. Mr. Justice Rouleau found there to be no statutory stay in existence in the case before him because an order of the Lieutenant Governor of Quebec was not an order made by a judicial body, and because none of the conditions required the person concerned to appear before a tribunal at a particular time or place.

[34]This jurisprudence supports the interpretation of paragraph 50(a) of the Act that the requirement of direct contravention of a court order requires that an express provision of an order be incompatible or irreconcilable with removal of the person concerned.

[35]Third, statutory provisions are to be construed harmoniously with the scheme and object of the Act and the intention of Parliament. In Cuskic v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 3, the Federal Court of Appeal considered whether the execution of a removal order against a person subject to a probation order that contained a direction to report to a probation officer on a specific, periodic basis, would directly contravene the probation order so as to invoke the statutory stay available under paragraph 50(1)(a) of the former Act. The Court of Appeal acknowledged that the obligation of the person concerned to report regularly to his probation officer required that he be in Canada. Notwithstanding that, the Federal Court of Appeal found that paragraph 50(1)(a) could not be literally interpreted without giving appropriate consideration to the overall scheme of the former Act. At paragraphs 25-26, Mr. Justice Létourneau wrote for the Court:

In my view, the broad interpretation given to the specific exceptions found in section 50, particularly paragraph 50(1)(a), leads to unjust and unreasonable consequences that cannot have been intended by Parliament. I believe it is appropriate, in the circumstances of this case, “[w]here it appears that the consequences of adopting an interpretation would be absurd . . . to reject it in favour of a plausible alternative that avoids the absurdity”: see R. Sullivan, Driedger on the Construction of Statutes, 3rd ed., Toronto: Butterworths, 1994, at page 79. The plausible alternative is, in my view, that probation orders were not meant to defer the execution of a valid removal order and interfere with the Minister’s duty, pursuant to section 48 of the Act, to act diligently and expeditiously.

To accept the interpretation given to paragraph 50(1)(a) by the Reviewing Judge defeats the purpose of Part III of the Act, which, it bears repeating, is to remove quickly from Canada persons who are inadmissible, and compromise the efficacy of the Act as a whole.

[36]On that basis, the Court concluded that execution of the removal order would not directly contravene the probation order so as to give rise to a statutory stay.

[37]In the present case, I find that the Act comprises a comprehensive scheme which allows for the immigration of foreign nationals to Canada and for the protection of those in need of Canada’s surrogate protection. Central aspects of that scheme, for the purpose of these proceedings, are:

1. Non‑citizens do not have an unqualified right to enter or remain in Canada (see: Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at page 733).

2. Where an enforceable removal order exists in respect of a foreign national, the foreign national is obliged to leave Canada immediately, and the Minister is required to enforce the order as soon as is reasonably practicable (see: subsection 48(2) of the Act).

3. The Federal Court has exclusive jurisdiction to issue prerogative relief, including interim relief, under the Act.

4. While, under the Act, the best interests of affected children is an important factor that must be taken into account and given substantial weight (see, for example, subsection 25(1) of the Act and the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817), the best interests of children is but one factor to be considered under the Act. In Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358, the Federal Court of Appeal concluded at paragraph 12 that “Parliament has not decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any ‘refoulement’ of a parent illegally residing in Canada.”

[38] The interpretation of subsection 50(a) urged by Ms. Alexander is not, in my view, consistent with this scheme. As the Federal Court of Appeal observed in Hawthorne v. Canada (Minister Citizenship and Immigration), [2003] 2 F.C. 555, at paragraphs 4-5:

The “best interests of the child” are determined by considering the benefit to the child of the parent’s non‑removal from Canada as well as the hardship the child would suffer from either her parent’s removal from Canada or her own voluntary departure should she wish to accompany her parent abroad. Such benefits and hardship are two sides of the same coin, the coin being the best interests of the child.

The officer does not assess the best interests of the child in a vacuum. The officer may be presumed to know that living in Canada can offer a child many opportunities and that, as a general rule, a child living in Canada with her parent is better off than a child living in Canada without her parent. The inquiry of the officer, it seems to me, is predicated on the premise, which need not be stated in the reasons, that the officer will end up finding, absent exceptional circumstances, that the “child’s best interests” factor will play in favour of the non‑removal of the parent. In addition to what I would describe as this implicit premise, the officer has before her a file wherein specific reasons are alleged by a parent, by a child or, as in this case, by both, as to why non‑removal of the parent is in the best interests of the child. These specific reasons must, of course, be carefully examined by the officer. [Underlining added.]

[39]As acknowledged by Justice Waldman in the reasons which supported the final order of the Ontario Court of Justice issued on January 19, 2005, courts such as the Ontario Court of Justice are charged with the exclusive responsibility of considering the best interests of children, and the only concern of such courts is the best interests of those children. Given that the best interests of a child will almost always favour the non‑removal of a parent from Canada, and yet, as a matter of law, the presence of a child in Canada is not, by itself, to be an absolute impediment to the removal of a parent, I find that the interpretation of paragraph 50(a) of the Act urged by Ms. Alexander is contrary to the overall scheme of the Act. As in Cuskic, I find that interpreting paragraph 50(a) of the Act so that, in the present circumstances, execution of the removal order would not directly contravene the orders of the Ontario Court of Justice is in accordance with the scheme of the Act.

[40]In so concluding, I have considered Ms. Alexander’s argument that, because she has been granted sole custody of her children, her children must remain in her physical care. It follows, she says, that if she is removed from Canada her children must go with her, and this would remove them from Ontario in direct contravention of the relevant orders. However, I am unable to conclude that the grant of custody, or sole custody, necessitates that the custodial parent maintain physical care of a child at all times. For example, a grant of custody would not, as a matter of law, automatically be affected by the incarceration or extradition of the custodial parent. Similarly, custodial parents may send their children out of the country for education or other reasons. In Chou v. Chou (2005), 253 D.L.R. (4th) 548, the Ontario Superior Court of Justice recently described the meaning of  “custody” in the following terms [at paragraph 21]:

It consists of a bundle of rights and obligations, called “incidents” in sections 20 and 21 of the Children’s Law Reform Act, R.S.O. 1990, c. C‑12, as amended. Family law cases often deal with the allocation of rights of custody. Those rights include the right to physical care and control of the child, to control the child’s place of residence, to discipline the child, to make decisions about the child’s education, to raise the child in a particular religion or no religion, to make decisions about medical care and treatment. [Underlining added.]

[41]Thus, custody allows the custodial parent to control the child’s place of residence, but does not necessarily require that the parent reside with the child.

[42]I have considered as well Ms. Alexander’s reliance upon the Convention. In Baker, at paragraphs 69-70, the Supreme Court held that while the Convention has not been incorporated into domestic law, so that its provisions “have no direct application within Canadian law,” “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.” In De Guzman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 162 (F.C.) my colleague Mr. Justice Kelen found, at paragraphs 53-55, that the effect of paragraph 3(3)(f) of the Act was not to incorporate international human rights conventions as part of Canadian law, or to override the plain words used in a statute. Rather, he found that paragraph 3(3)(f) of the Act codified “the common law canon of statutory construction that domestic law should be interpreted to reflect the values contained in international human rights conventions to which Canada has ascribed.” See also to the similar effect, Charkaoui (Re), [2005] 2 F.C.R. 299 (C.A.), at paragraph 35 in the context of paragraph 3(3)(d) of the Act.

[43]On the basis of these authorities, I conclude that the implementation of the Act, and specifically the enactment of paragraph 3(3)(d), has not elevated the status of the Convention in Canada.

[44]The relevance of this point is that the effect of Article 3 of the Convention upon the right of the Minister to remove a child’s parent has previously been considered by the Federal Court of Appeal in Langner v. Canada (Minister of Employment and Immigration) (1995), 29 C.R.R. (2d) 184. At paragraph 11, Mr. Justice Décary, wrote as follows for the Court:

Counsel for the appellants also contended that removal of the parents would be contrary to the international obligations contracted by Canada when it ratified the Convention on the Rights of the Child. Even if these international obligations had been incorporated into Canada’s domestic law by legislation, which is not the case, we need only look to articles 9 and 10 of that Convention to find that, here again, Mr. Grey’s arguments are entirely devoid of merit.

[45]I find, therefore, that the Convention does not assist Ms. Alexander as she argues.

[46]Finally, to the extent Ms. Alexander relies upon section 234 of the Regulations, such provision states that it is made “[f]or greater certainty.” Its wording does not suggest that the section is intended to provide an exhaustive list of situations in which execution of a removal order would not contravene a court order. Again, I find that the section does not assist Ms. Alexander.

2. Does removal of a custodial parent breach section 7 of the Charter?

[47]Section 7 of the Charter provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[48]On Ms. Alexander’s behalf it is argued that:

1. The Minister’s interpretation of paragraph 50(a) of the Act infringes section 7 of the Charter because it seriously interferes with the liberty and security of the person interests of Ms. Alexander and her family. This interference is said to arise directly from the state’s failure to recognize their genuine dependent child‑parent relationship, and the state’s failure to recognize and give primary consideration to the best interests of the children.

2. Execution of the removal order in the face of the order of the Ontario Court of Justice denies the rights granted under section 7 of the Charter in a manner inconsistent with the principles of fundamental justice. This is said to be because, if a delegate of the Minister can override a court order, the independence of the judiciary is compromised because a “civil servant” will have “trumped” the judiciary. Further, such action will, by “executive order,” constitute federal interference with an order made within the jurisdiction of a province.

3. In the alternative, if the orders do not give rise to a statutory stay, the “execution of the removal order is not in accordance with fundamental justice in that it is ultra vires as it impinges upon the exclusive jurisdiction over family law of the provincial courts, contrary to the rule of law and federalism as set out by the Supreme Court of Canada in the Quebec Succession [sic] Reference case.”

[49]In my view, these arguments must fail because the Federal Court of Appeal has previously decided in Langner that, in these circumstances, the Charter has no application.

[50]In Langner, the parents of two Canadian‑born children sought a declaration that deportation orders issued in respect of the parents breached the rights of their children under the Charter. Mr. Justice Décary, writing for the Court, affirmed the decision of this Court which had dismissed the action. Justice Décary concluded: first, that there was no state action involved that could trigger the application of the Charter; second, that even if the Charter applied, no protected freedom had been violated because the plaintiffs had no right to remain in Canada and the departure orders were entirely consistent with requirements of the Charter; and third, that a child has no constitutional right never to be separated from his or her parents.

[51]Counsel for Ms. Alexander argue that Langner is no longer good law because it was not decided under the Act, which differs materially from the former legislation because of the provisions of paragraphs 3(3)(d) and (f) and subsection 25(1) of the Act.

[52]I have previously addressed the effect of paragraphs 3(3)(d) and (f) of the Act. In sum, based on the conclusions of the Federal Court of Appeal in Charkaoui (Re), at paragraph 35, and this Court in De Guzman, at paragraphs 53-55, I conclude that nothing in section 3 of the Act overtakes the decision of the Federal Court of Appeal in Langner.

[53]While I express some doubt that subsection 25(1) of the Act, which deals with humanitarian and compassionate considerations, has application to the present circumstances, the Supreme Court has held that:

(i) while an important factor for consideration in many contexts, the best interests of the child is not a principle of fundamental justice and is not a foundational requirement for the dispensation of justice. See: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, at paragraph 10; and

(ii) the Charter does not protect the right to maintain and continue a parent‑child relationship. See: Augustus v. Gossett, [1996] 3 S.C.R. 268, at paragraph 53.

[54]These conclusions are consistent with those of the Federal Court of Appeal in Langner. In the result, in my view, Langner continues to be a valid and binding authority upon this Court.

[55]It follows that no breach of section 7 of the Charter has been established.

3. Did the first officer err by failing to provide reasons?

[56]Ms. Alexander relies upon dicta in Baker to the effect that the duty of fairness requires that reasons be provided where the decision at issue will have a profound effect on the individual, and upon the recognition by this Court in Thomas v. Canada (Minister of Citizenship and Immigration), 2003 FC 1477, that a decision to refuse to defer removal carries potentially profound implications, to argue that the first officer was obliged to provide reasons for his decision. The fact that no reasons or notes were provided is said, by itself, to be a reviewable error.

[57]The decision of the Supreme Court in Baker must be read in its entirety. The Court held that the content of the duty of fairness is variable, so that the required form and detail of the reasons for a decision will vary with the context in which the decision is made.

[58]With respect to the first decision, the officer prepared no notes and so there are no written reasons to support the letter which contains the first decision. However, the context in which the letter was written was that the officer was not responding to any request made by Ms. Alexander. Rather, the officer was responding to counsel’s assertion that, as a matter of law, a statutory stay arose from the making of the interim order. In that context, the officer responded stating the position of the Canada Border Services Agency that no statutory stay arose. This was a statement of a legal position. I am not persuaded that in those circumstances the duty of fairness required any more detailed explanation or response.

[59]Further, the officer concluded his letter by stating that counsel could contact him if anything further was required. There is no evidence that any request for further reasons or elaboration was made. In Liang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1301 (T.D.) (QL), Mr. Justice Evans, while a member of this Court, observed at paragraph 31 that the duty of fairness normally only requires reasons to be given on the request of the person to whom the duty of fairness is owed and, in the absence of such request, there will be no breach of the duty of fairness if reasons are not provided. It follows, in my view, that if Ms. Alexander or her counsel considered the first officer to have given an inadequate response or explanation, they should have requested further clarification.

[60]In the result, I find the asserted breach of the duty of fairness has not been established with respect to the first decision.

4. Did the second officer fail to provide adequate reasons?

[61]The circumstances that led to the second decision were very different from those that led to the first decision, and the second officer did prepare notes which serve to provide the officer’s reasons for her decision. At issue is the adequacy of those reasons.

[62]In support of her contention that the reasons provided by the second officer are not adequate, Ms. Alexander relies upon paragraphs 21-22 of the decision of the Federal Court of Appeal in VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25. There, Mr. Justice Sexton wrote as follows for the Court:

The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. However, as a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed. In the words of my learned colleague Evans J.A., “[a]ny attempt to formulate a standard of adequacy that must be met before a tribunal can be said to have discharged its duty to give reasons must ultimately reflect the purposes served by a duty to give reasons.”

The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors. [Footnotes omitted.]

[63]The second officer’s reasons are said to be inadequate because, first, they do not reflect the reasoning process of the officer, but rather merely state conclusions. Specifically, the reasons do not clearly and unmistakably reveal why the officer ignored the order of the Ontario Court of Justice, the best interests of the children, and country conditions in Grenada. Second, the reasons are said to show that the officer did not consider significant portions of the evidence, and was not alert, alive and sensitive to the best interests of the children.

[64]In my view, the second listed concerns go to the reasonableness of the officer’s decision, and not to the adequacy of the reasons. Put another way, to the extent that reasons reveal a failure to consider relevant factors or relevant evidence, this goes to the reasonableness of the decision. These concerns are, therefore, considered below.

[65]As to the sufficiency of the reasons, the Federal Court of Appeal stressed in VIA Rail Canada, that what constitutes adequate reasons is a matter to be decided in light of the particular circumstances of each case. It is relevant that the maker of the decision under review in that case was of a substantially different nature from an enforcement officer. In the present case, I find the following circumstances to be of particular relevance.

[66]First, the jurisprudence establishes that enforcement officers have a limited discretion to defer removal. In Simoes v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219 (F.C.T.D.), Mr. Justice Nadon, then of this Court, considered the nature of this discretion, and wrote, at paragraphs 11-14:

I am in complete agreement with the view expressed by Dawson J. In my opinion, Baker does not require a removal officer to undertake a substantive review of the children’s best interests, including the fact that the children are Canadian. This is clearly within the mandate of an H&C officer. To “read in” such a mandate at the removals stage would, in effect, result in a “pre H&C” application, which in my opinion, is not what the law requires. Section 48 of the Immigration Act provides the following: “Subject to sections 49 and 50, a removal order shall be executed as soon as reasonably practicable.” Sections 49 and 50 deal with statutory stays of execution in certain defined circumstances; for instance, where an applicant has filed an appeal which has yet to be heard and disposed of, or where there are other proceedings.

In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is “reasonably practicable” for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to traveling, and pending H&C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. For instance, in this case, the removal of the Applicant scheduled for May 10, 2000 was deferred due to medical reasons, and was rescheduled for May 31, 2000. Furthermore, in my view, it was within the removal officer’s discretion to defer removal until the Applicant’s eight‑year old child terminated her school year.

With respect to pending H&C applications, certainly, the mere existence of such an application cannot bar the execution of a valid removal order. “To hold otherwise,” as Noël J. aptly observed, “would, in effect, allow claimants to automatically and unilaterally stay the execution of validly issued removal orders at their will and leisure by the filing of the appropriate application. This result is obviously not one which Parliament intended.”

Regarding H&C applications involving Canadian children, I cannot subscribe to the view submitted by the Applicant—namely, that the removal officer must defer removal of a parent with Canadian children pending the determination of their H&C application. The Applicant seeks a declaration ordering the Enforcement Officer to consider the best interests of the Applicant’s children before executing the Removal Order. As I have indicated, section 48 which governs removal officers cannot be so interpreted. In this regard, the Federal Court of Appeal affirmed the following in Langner v. M.E.I., (1995) 184 N.R. 230 at 232:

Proceeding by way of an action for a declaratory judgment, the appellants are essentially asking this court to do nothing less than to declare that the mere fact that these people, who otherwise have no right to remain in Canada, have had a child in Canada prevents the Canadian Government from executing a deportation order that has been validly made against them. In short, one would need only have a child on Canadian soil and argue that child’s Canadian citizenship rights in order to avoid the effect of Canadian immigration laws and obtain indirectly what it was impossible to obtain directly by complying with those laws.

Moreover, with respect to separating children from their parents, the Court of Appeal stated the following at page 234:

. . . a child has no constitutional right never to be separated from its parents: we need only consider imprisonment, extradition, and even divorce, for confirmation that the child’s right is to be where its best interests require it to be, and it is not necessarily in a child’s best interests to be in the company of its parents. [Footnotes omitted, underlining added.]

[67]Second, the purpose served by the requirement of reasons must be considered. In addition to telling the person concerned why a particular decision was made, the reasons of an enforcement officer provide the basis upon which the decision can be judicially reviewed by this Court.

[68]Finally, the Court must be mindful of administrative concerns. The duty of fairness is to provide sufficient flexibility to decision makers by accepting that various types of written explanations may be sufficient. While that addresses to some extent the form of the reasons, in Cepeda‑Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, Mr. Justice Evans, then of this Court, recognized, at paragraph 16, that decision makers are not required “to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it.” Such a requirement “would be far too onerous a burden to impose upon administrative decision‑makers.”

[69]In the present case, the reasons provided by the officer are described at paragraphs 15-20 above. The reasons are, in my view, sufficient to convey to Ms. Alexander why the request for deferral was refused and what evidence and factors the officer considered in reaching her decision. The officer acknowledged the reason for which the deferral was requested, the prior negative humanitarian and compassionate application, the fact that Ms. Alexander had adequate time to organize her affairs prior to removal (including adequate time to arrange proper care for her children if they were to remain in Canada), Ms. Alexander’s negative PRRA application, the Federal Court decision to the effect that the Minister could remove Ms. Alexander after January 30, 2005, and the fact that there was no moratorium or policy which prevented the removal of people to Grenada, notwithstanding the damage caused by hurricane Ivan. The reasons permit this Court to judicially review the officer’s decision and are consistent with the scope of the officer’s discretion.

[70]In consequence, I have found no breach of procedural fairness arising from the provision of inadequate reasons by the second officer.

5. Was the second officer’s decision unreasonable because she fettered her discretion?

[71]Ms. Alexander relies upon the decision of this Court in Lukic v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 325 (T.D.) (QL) to argue that [at paragraph 21] “[a] decision‑maker unlawfully fetters her discretion only when she treats one factor as decisive, regardless of the presence or strength of countervailing considerations.” The second officer is said to have fettered her discretion in these two respects:

1. First, by taking the position that she had no discretion to defer Ms. Alexander’s removal to Grenada because there was no moratorium on removals to Grenada.

2. Second, by only considering the issue of whether Ms. Alexander could have made alternative arrangements for the care of her children in the event of her deportation and by failing to consider all of the other relevant factors.

[72]With respect to the first asserted instance of fettering, I am satisfied that the second officer did not treat the absence of any moratorium as a decisive or binding factor in her decision not to defer removal. The officer considered a number of other factors, including the previous negative humanitarian and compassionate application, the time available to Ms. Alexander to prepare for removal, and the fact that Ms. Alexander’s children could remain in Canada. The lack of any moratorium with respect to Grenada was merely one factor considered by the officer.

[73]As to the second instance, I accept that the officer did not undertake a detailed review of the best interests of Ms. Alexander’s children. However, jurisprudence such as Simoes is to the effect that a removal officer need not conduct an assessment of the best interests of a child. In John v. Canada (Minister of Citizenship and Immigration) (2003), 231 F.T.R. 248 (F.C.T.D.), my colleague Madam Justice Snider, at paragraph 20, doubted that there is any “requirement that the removal officer consider H&C factors, including the impact of the removal on the Canadian citizen child.” She went on, at paragraph 23, to state:

In general, a reasonable approach to this difficult issue of the consideration of the best interests of the child would be to consider the duty as a continuum. On one end of that continuum would be the thorough analysis required in the context of an H&C application, as described in Baker, supra. At the other end would be a less thorough, but nonetheless sensitive, direction of the decision‑maker’s mind to the children affected by the decision. In my view, the obligation, if any, of a removal officer to consider the interests of Canadian‑born children would rest at the less thorough end of the spectrum. This would be consistent with the nature of section 48 of the Immigration Act. Only in exceptional circumstances should the removal be deferred to accommodate the children of a person who is subject to a removal order, and then only to the extent that the factors could not have been dealt with at the H&C application stage. [Underlining added.]

[74]Ms. Alexander relies upon the decision of my colleague Madam Justice Simpson in Martinez v. Canada (Minister of Citizenship and Immigration), 2003 FC 1341 to argue that removal should be deferred where there is an outstanding humanitarian and compassionate application which raises the best interests of children. However, that decision was made in the context of a motion for a stay of removal and so only establishes the existence of a serious issue to this effect.

[75]Given that the second officer was not required to undertake a thorough review of the best interests of Ms. Alexander’s children, I am not satisfied that the officer fettered her discretion by referring only to the fact that Ms. Alexander had ample time to make arrangements for her children. Accordingly, I do not find that the second officer fettered her discretion as alleged.

6. Did the second officer ignore evidence and make her decision not to defer removal without regard to the evidence, in a perverse and capricious manner?

[76]On Ms. Alexander’s behalf it is argued that the officer ignored the evidence before her that:

(a) The first humanitarian and compassionate application did not consider the interests of her children and her second application remained pending where the interests of her children would be addressed;

(b) Ms. Alexander is the sole caregiver for both her children and the only parent they have;

(c) Ms. Alexander had been ordered to keep her children in her physical care and custody by the Ontario Court of Justice;

(d) A psychologist recommended that the children not be separated from their mother and that it is in the children’s best interest that they remain with her; and

(e) The Children’s Aid Society of Toronto provided an opinion that the only reason children should be separated from their parent is to secure their safety and protection.

[77]It is said to be “astonishing” that the officer referred to the order of Madam Justice Layden‑Stevenson, but not to the order of Madam Justice Waldman.

[78]Ms. Alexander says that, having not been alert, alive and sensitive to the best interests of the children, the officer then concluded in a perverse and capricious manner, without regard to the evidence, that Ms. Alexander had “sufficient time to arrange for alternative arrangements for her children in the event that she is removed to Grenada.”

[79]It is trite law that the officer need not cite in her reasons all of the evidence before her. Unless the contrary can be shown, it is presumed that a decision maker has weighed and considered all of the evidence before her. It follows, in this case, that the question to be determined is whether the evidence the officer did not mention was of such significance that the Court should, in all of the circumstances, infer from the failure to do so that the officer did not have proper regard to the evidence.

[80]Having carefully reviewed the record before the officer, the officer’s notes and the submissions advanced on Ms. Alexander’s behalf, I have not been persuaded that the officer’s decision was perverse or capricious, or made without regard to the evidence before the officer, or that the decision was unreasonable.

[81]Turning to the evidence the officer is said to have ignored, the officer did not ignore the existence of either the first or the second humanitarian and compassionate application because she referred to each application in her notes. In correspondence to the enforcement officer dated September 15, 2004 (sent in the context of the ongoing series of requests for deferral) Ms. Alexander’s counsel had advised the officer that Ms. Alexander had advised counsel that the first humanitarian and compassionate application was based on the best interests of her children. The interests of the children were apparently put in issue and considered on that application to some extent, although in rejecting the application the decision maker noted that “insufficient information was submitted to fully assess the best interests of her children.”

[82]With respect to Ms. Alexander’s role as sole caregiver, as noted above, the jurisprudence of this Court is generally to the effect that it is not within the mandate of an enforcement officer to evaluate the merits of a humanitarian and compassionate application, although compelling individual circumstances may require consideration (see: Prasad v. Canada (Minister of Citizenship and Immigration) (2003), 28 Imm. L.R. (3d) 87 (F.C.T.D.)).

[83]As to the somewhat terse statement made by the officer to the effect that Ms. Alexander had sufficient time to make arrangements for her children, it appears from the record before the officer that there was some significant reason to doubt that Ms. Alexander intended to separate herself from her children and to leave them in Canada. In this regard:

1. The application submitted in respect of the pre‑removal risk assessment was based upon Ms. Alexander returning to Grenada with her children.

2. As counsel had noted in her correspondence of January 24, 2005 to the enforcement officer requesting deferral, the removal arrangements made in April of 2004 were based upon the children accompanying Ms. Alexander to Grenada.

3. Counsel’s correspondence of September 15, 2004 (sent after hurricane Ivan had damaged Grenada) requested deferral of the removal of Ms. Alexander with her two children.

4. Ms. Alexander had been candid that she sought the custody and non‑removal order because of the pending removal proceedings. Justice Waldman noted in her reasons that it was admitted that Ms. Alexander sought the non‑removal order [at paragraph 4] “as a mechanism to assist her and her children in remaining together in Canada”.

5. A newspaper article, contained in the record, written before the December 17 motion for a stay, reported as follows:

But her return to Grenada is being complicated by a Family Court order issued Oct. 12 that forbids her from taking the children out of the province. Alexander admits she sought that order to foil the deportation order, and force immigration officials into delaying her deportation while a new bid for permanent residency is being considered—something that can routinely take two years.

“I don’t want to change the order, but I might have no choice now”, Alexander said yesterday at the immigration holding centre on Rexdale Rd. where she and the children have been living for the past two months.

“I won’t leave the country without my children. They’re not going into foster care”. [Underlining added.]

6. As noted by Justice Waldman in her reasons, (at paragraph 2) and as is implicit from the December 17, 2004 order of Madam Justice Layden‑Stevenson, while the motion for a stay had been dismissed, it was ordered that removal could not take place until after January 30, 2005 so that Ms. Alexander could make whatever arrangements were necessary (including applying to the Ontario Court for a variation of the non‑removal provision of the order, as Ms. Alexander had warned the Ontario Court she might do).

[84]In these relatively unique circumstances, I do not infer from the officer’s silence about Ms. Alexander’s role as caregiver that the officer ignored the evidence put before her about the best interests of the children. There was reason to doubt the bona fides of the suggestion that they would be placed in the care of the Children’s Aid Society, the court orders had been sought for immigration purposes, and the children’s interests were being asserted for the purpose of assisting their mother’s immigration status.

[85]As for the failure of the officer to specifically reference the fact that Ms. Alexander had been granted custody and ordered not to remove her children from Canada, the effect of the interim order had been considered by Madam Justice Layden‑Stevenson. She found that such order did not even give rise to a serious issue about the existence of the statutory stay so as to warrant granting a judicial stay of removal. Justice Layden‑Stevenson ordered that removal could proceed after January 30, 2005. In that circumstance, I do not find it surprising that Justice Waldman’s order was not mentioned by the officer who instead specifically referred to the order of Madam Justice Layden‑Stevenson.

[86]With respect to the letters from the psychologist and the Children’s Aid Society to the effect that it was in the best interests of the children that they remain with their mother, and that children should only be separated from their parent to secure their safety and protection, as the Court of Appeal noted in Hawthorne, it is generally the case that the best interests of a child will favour the conclusion that their parent remain in Canada. However, as the officer knew, Parliament has not yet decided that the presence of children in Canada is, per se, an impediment to the removal of a parent. The evidence is not such that any inference arises from the failure of the officer to mention this correspondence. See also on this point Hawthorne, at paragraph 5.

[87]The applicable standard of review (agreed by the parties and addressed at paragraph 24 above) to be applied to the decision not to defer removal is reasonableness simpliciter. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. See: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paragraph 56. A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the decision maker from the evidence to her ultimate conclusion. The reasons are to be taken as a whole to see if, as a whole, they provide tenable support for the decision. See: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraphs 55-56.

[88]Applying that standard of review to the officer’s decision, I have not been persuaded that the decision was unreasonable, or made without regard to the evidence before the officer.

CONCLUSION

[89]For these reasons, the application for judicial review will be dismissed.

[90]Ms. Alexander poses the following three questions for certification:

(1) Does removing a foreign national mother/parent, who has been granted custody of her Canadian citizen children by the provincial family court, where the court has also ordered that her children not be removed from the province, create a statutory stay pursuant to section 50(a) of the Immigration and Refugee Protection Act?

(2) If it does not create a statutory stay pursuant to s. 50 of IRPA, then does removal of the mother/parent constitute a violation of section 7 of the Charter?

(3) Should a removal officer defer removal pending the outcome of a Humanitarian and Compassionate application, in order to consider the best interests of the child pursuant to section 25 of the IRPA and to give effect to Canada’s obligations under the Convention on the Rights of the Child?

[91]The Minister opposes certification, stating that the first two questions have authoritatively been decided. As to the third question, the Minister argues that because Ms. Alexander had already been afforded a humanitarian and compassionate application, the question would not be determinative of an appeal.

[92]I accept the submission of the Minister with respect to the second and third questions. I am not satisfied however that the first question has been authoritatively decided. I believe that the question raises an issue that would be determinative of any appeal and is a question that transcends the interest of the parties. I will, therefore, certify that question in a modified form.

ORDER

[93]THIS COURT ORDERS THAT:

1. The application for judicial review is dismissed.

2. The following question is certified:

In the circumstances of this case, where:

1. A parent is a foreign national who is subject to a valid removal order;

2. A family court issues an order, granting custody to the parent of his or her Canadian-born child and prohibiting the removal of the child from the province; and

3. The Minister is given the opportunity to make submissions before the family court before the order is pronounced;

Would the family court order be directly contravened, within the contemplation of paragraph 50(a) of the Act [Immigration and Refugee Protection Act], if the parent, but not the child, is removed from Canada?

APPENDIX A

1.    The requirement of service of all documents in this application upon the respondent Dave Roberts is dispensed with, as the respondent Dave Roberts cannot be located to be properly served, and there is no method of substituted service that could reasonably be expected to bring the documents to the respondent Dave Roberts attention.

2.    The applicant mother, Lena Alexander, shall have sole custody of the children Crystal Roberts, born May 16, 1999, and Dameon Alexander, born August 1, 2002.

3.    The children, Crystal Alexander, born May 16, 1999, and Dameon Alexander, born August 1, 2002, shall not be removed from the Province of Ontario by the applicant mother or respondent fathers or anyone acting on either party behalf without further order of this Court.

APPENDIX B

1.    The applicant mother, Lena Alexander, shall have custody of the children Crystal Roberts, born May 16, 1999, and Dameon Alexander, born August 1, 2002.

2.    The respondent father, Selvin Powell shall have reasonable access to the child Dameon Alexander, which access shall be arranged between the parties, having regard to the child’s age and relationship with the respondent.

3.    The children, Crystal Alexander, born May 16, 1999, and Dameon Alexander, born August 1, 2002, shall not be removed from the Province of Ontario for six months from the date of this order. The applicant may bring this matter before me to consider an extension of this time on notice to all parties if she wishes to present further evidence concerning the situation in Grenada within that six‑month period.

APPENDIX C

Section 12 of the Interpretation Act:

12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

APPENDIX D

Paragraph 50(1)(a) of the now repealed Immigration Act:

50. (1) A removal order shall not be executed where

(a) the execution of the order would directly result in a contravention of any other order made by any judicial body or officer in Canada; or