Toronto, Ontario, June 28, 2006
PRESENT: The Honourable Mr. Justice Rouleau
BETWEEN:
SHAUNE DWANE HIGGINS
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, a citizen of Jamaica entered Canada in June of 2004 on a seasonal farm worker visa. Within a few days he left his employment and went into hiding. An arrest warrant and an exclusion order were issued in February of 2005. In June of 2005, he presented himself to immigration authorities with the intention of making a refugee claim. Such an application could not be entertained because of the outstanding exclusion order. He was arrested and released on a $3,000.00 bail posted by his eventual spouse Charlene Rose Bedassie. They took up cohabiting in December of 2004 and married in October of 2005. In November, Ms. Bedassie, a Canadian citizen, made an in-land spousal sponsorship application.
[2] Ms. Bedassie has a 9 year old son from a previous relationship. This child has had no contact with his biological father but calls the applicant his father.
[3] Unchallenged affidavit evidence relates that the child has been recently diagnosed with "behavioural and social disability". He has a learning disability and with ADD and ADHD. He is continuously being suspended from school.
[4] The applicant, prohibited from working, remains in the home and cares for the child. Ms. Bedassie presently carries on two jobs and is the only bread winner in the family. She is now pregnant, expecting in December of 2006.
[5] Should the applicant be deported, because of the constant care his 9 year old son requires, she would have to give up her employment; having returned to the workforce in December of 2005, if she is forced to leave her employment she would not be eligible for Employment Insurance benefits and would be denied maternity and parental benefits since she would not have enough hours of employment to qualify.
[6] The child is often suspended and unable to return to school for short periods at a time. She regularly seeks child care and youth workers; he was recently enrolled in a six week special program at The Blue Hills Child and Family Centre.
[7] Having the applicant at home to care for the child has permitted Ms. Bedassie to pursue her work.
[8] It should also be noted that since the marriage and having the applicant residing in the home, many assistance programs have now been denied and in order to allow the child to be reinstated could be delayed as long as a year.
[9] The applicant submitted that the Removal officer did not take into account the best interests of the child. In reply, counsel for the Minister suggests that they were considered and one need only to review the notes to file provided by the officer. He suggests that the behavioural problems are worse now that the applicant is residing in the home.
[10] I am not persuaded that there was sufficient evidence to arrive at such a conclusion. The officer goes on and suggests that a letter from Blue Hills Child and Family Center indicates that the child, Nathan, continues to receive the necessary therapeutic counselling. Not quite so, pointed out by applicant's counsel. The program was for only 6 weeks and it terminated on June 21, 2006.
[11] I have been persuaded that the applicant is of invaluable assistance and primary care given to the child; without his presence the mother would have to give up her employment and any possible Employment Insurance benefits she could enjoy come the birth of the child in December of 2006.
[12] The application for in-land spouse sponsorship is now in the process for some 7 months and could be determined any day now.
[13] I am satisfied that there is a serious issue, if removed from Canada there would be irreparable harm and the balance of convenience favours the applicant.
[14] I am satisfied that the harm to the family and particularly the harm to the child would in the long run be irreparable; quoting from Toth, irreparable harm can encompass harm to others and is not limited to the person whose removal is imminent.
ORDER
THIS COURT ORDERS that application to stay removal order is hereby granted.
"Paul Rouleau"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3375-06
STYLE OF CAUSE: SHAUNE DWANE HIGGINS v. THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 26, 2006
APPEARANCES:
| Hilary Evans Cameron
|
|
| Maria Burgos
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
| VANDERVENNEN LEHRER Barristers and Solicitors Toronto, Ontario |
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|