Date: 19980506
Docket: IMM-806-98
BETWEEN:
MARK KIVIT
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD J.:
[1] This is a motion for a stay of the execution of the departure order against the applicant made on February 12, 1998. He is to be removed from Canada to Lithuania on May 6, 1998, at 17:50 hours. The motion for a stay was brought on May 5, 1998.
[2] The underlying facts appear in the affidavit of Kathie Woodcox, a senior member of the Administrative Team within the Immigration Portfolio at the Department of Justice in the Ontario Regional Office. It reads, in part, as follows:
| 4. On February 19, 1997, the Applicant came from Lithuania to Canada. |
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| 5. At this time, the Applicant was granted visitor status. |
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| 6. The Applicant's visitor's status was subsequently extended to February 19, 1998. |
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| 7. In July of 1997, the Applicant married a permanent resident of Canada. |
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| 8. In that same month, the Applicant was arrested and charged with threatening death and assault concerning his new spouse. |
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| 9. In October of 1997, the Applicant was arrested and charged with the following criminal offenses: |
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| (a) assault causing bodily harm; |
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| (b) forcible confinement; |
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| (d) threatening death; and |
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| 10. Ultimately, on January 16, 1998, the Applicant was convicted of assault causing bodily harm and forcible confinement concerning his new spouse. |
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| 11. The Applicant received 30 days for each conviction to be served concurrently, and in addition, 12 months probation. |
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| 12. On February 12, 1998, the applicant was found described pursuant to sections 27(2)(a) for s. 19(2)(a) of the Immigration Act. |
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| 13. As a result of being found described in the above sections, the Applicant was issued a departure order. |
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| 14. The Applicant represented to Immigration Canada that he would leave within the 30 days as proscribed by the departure order. He represented that he had a ticket to Poland and planned on leaving within the 30 day period. |
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| 15. The Applicant did not leave within the 30 day period and in fact remains in Canada. His departure order therefore crystallized into a deemed deportation order. |
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| 16. The Applicant had been held in detention from February 12, 1998 until February 18, 1998. |
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| 17. His release was based on bonds, and terms and conditions. |
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| 18. On April 15, 1998, the Applicant's wife lodged another complaint against him with 11 Division police. At that time she advised the detective at 11 Division that she had been separated from her spouse (the Applicant) for approximately six months. |
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| 19. On April 20, 1998, the Applicant was re-arrested by Immigration because: |
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| (a) he had not left Canada as he had promised to do and was now here as a fugitive deportee; and |
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| (b) he had breached the terms and conditions of his release. |
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| 20. According to Immigration, the Applicant has been completely uncooperative in the arrangements to return him to Lithuania. He has refused to sign his passport application. Lithuania however, has issued travel documents for the Applicant and he is to be removed from Canada on May 6, 1998, at 17:50 hours. |
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[3] In his affidavit, the applicant states, in part, as follows:
| 13. On January 16, 1998 I pleaded guilty to the charges before the court and received a sentence of 30 days plus probation. A term of my probation order was that I have no contact with my wife. As my wife and I desired to reconcile , I retained the services of a solicitor to try and have this condition varied. |
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| 14. On February 12, 1998, a hearing was heard before the Adjudication Division of the Immigration and Refugee Board, and a determination was made that I was to be provided with a Departure Order. |
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| 15. On Febuary 24, 1998 I commenced an application in the Federal Court Of Canada, Trial Division for leave and judicial review |
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[...]
| 26. It is my specific and stated intention to resume normal relations with my wife as soon as possible. Apart from the charges that I was convicted upon on January 16, 1998, and which involved my wife, I have never been in trouble with the law in either my own country or Canada. I was never my intention or desire to break any law of this country, and as I have indicatedf matters between my wife and myself have improved to the point that it is our common intention to resume permanent reside. |
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| 27. Since my wife is extremly close to her mother, she does not want to return to Lithuania, and consequently I am removed from Canada, I will be separated from my wife and daughter until I am given permission to return to Canada. |
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| 28. My wife is still quite young, and she requires my assistance in raising our baby daughter. If I am removed from Canada, both my wife and daughter will put through considerable hardship and needless suffering. |
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[4] The motion is also accompanied by the affidavit of Diana Caban, who identifies herself as the wife of the applicant. It reads, in part, as follows:
| 9. As my husband and I have a small daughter together and as it is my sincere desire to resume cohabitation with my spouse as soon as possible, I would hope that this honorable Court consider my wishes and postpone the removal of my husband pending the completion of his application for Judicial Review. |
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[...]
| 11. Since I would like to stay at home with our daughter, I would hope that Mark will eventually be given the opportunity to work leggally in Canada and take proper care of his family. |
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[5] The applicant has not met the three-stage test in RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311.
[6] The applicant has not demonstrated a serious question to be tried.
[7] The applicant has not established that he will suffer irreparable harm if the relief is not granted. What he seeks is the opportunity to remain in Canada and, if and when the probation order is varied, to be reunited with his family. He has already been separated from his wife and child for six months and remains so separated by reason of the court order. His wife has raised the child with the help of her mother.
[8] The balance of convenience favours the respondent. The applicant is neither a Canadian citizen or a permanent resident. He is under a deportation order. Section 48 of the Immigration Act directs that a removal order be executed as soon as reasonably practicable.
[9] Accordingly, the application for a stay is denied.
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Judge
Ottawa, Ontario
May 6, 1998