Date: 20020627
Docket: IMM-2812-02
Neutral citation: 2002 FCT 728
Ottawa, Ontario, this 27th day of June, 2002
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
KEVIN JON PARSONS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant has requested a stay of the deportation order against him. The order provides for deportation of the Applicant to the United Kingdom on July 2, 2002.
[2] On November 22, 2000, the Respondent issued an opinion that the Applicant presented a danger to the public in Canada. This opinion is known as a Danger Opinion. The Danger Opinion was quashed upon judicial review by order of McKeown J. of the Federal Court, Trial Division on August 20, 2001 (docket IMM-6331-00). A new Danger Opinion was issued on
May 27, 2002. The Applicant has filed an Application for Leave and Judicial Review of the decision of the Respondent to issue this opinion. The Applicant seeks a stay of the deportation order pending the disposition of that application.
[3] The test set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302, requires that an applicant seeking a stay of a deportation order demonstrate a serious issue to be tried, reasonable likelihood of irreparable harm if deported and a balance of convenience in favour of the applicant.
[4] The Applicant and the Respondent agreed that there was a serious issue for trial. The contentious questions are therefore those with respect to irreparable harm and balance of convenience.
[5] In light of the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the effects of an immigration decision on the children of the claimant must be considered. In the present case, the Applicant has a ten-year-old son. The son resides with the Applicant's father and step-mother but maintains frequent contact with the Applicant, including weekend visits. The mother of this boy has not been seen, either by the Applicant or his son, for years. The deportation of the Applicant would place him in the position of having to choose between taking his son to the U.K. or leaving him in Canada. Taking the boy to the U.K. would mean removing him from the community in which he was raised and from his grandfather and the Applicant's step-mother, with whom the Applicant's son has also fostered a positive and stable relationship. If the Applicant were to return to the U.K. without his son, that boy would suffer the pain of separation from the only natural parent with whom he has any bond. It can therefore be concluded that irreparable harm to the Applicant's son would be occasioned by his deportation.
[6] Although the resolution of the irreparable harm question renders further discussion on that subject unnecessary, it should also be pointed out that Canada is in fact where the Applicant has spent all but very short portions of his life. In addition, with few exceptions, his family is entirely in Canada. Deportation to the U.K. would result in isolation from his family. It would also deprive him of the broader support network which has facilitated his sincere efforts to avoid repeating those of his past behaviours which have resulted in legal consequences for him.
[7] With respect to the balance of convenience, the consequences that deportation of the Applicant would have on the Applicant's son, when weighed against the interests of the Respondent in having the Applicant deported, result in a balance of convenience which favours the Applicant.
[8] For these reasons, I hereby order that the deportation order against the Applicant be stayed pending the disposition of the Application for Leave and Judicial Review of the decision of the Minister of Citizenship and Immigration issued May 27, 2002.
ORDER
THIS COURT ORDERS that:
1. The deportation order against the Applicant be stayed pending the disposition of the Application for Leave and Judicial Review of the decision of the Minister of Citizenship and Immigration issued May 27, 2002.
"Michel Beaudry"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2812-02
STYLE OF CAUSE : KEVIN JON PARSONS and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Ottawa, Ontario by teleconference
DATE OF HEARING : June 27, 2002
REASONS FOR ORDER : THE HONOURABLE JUSTICE BEAUDRY
APPEARANCES :
Kevin E. Moore FOR THE APPLICANT
Tracy King
Department of Justice FOR THE RESPONDENT
SOLICITORS OF RECORD :
Kevin E. Moore FOR THE APPLICANT
Edmonton, Alberta
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario