Removal Halted in 24 Hours

Our client had lived in Canada for eleven years. He had two Canadian-born children, a common-law Canadian partner, and deep community roots. He had an outstanding removal order — a fact he knew — but had been navigating a complex series of humanitarian applications.

Without warning, CBSA contacted him with a removal notification: he had 48 hours before his flight. He called us the next morning. We had less than 36 hours to file.

Once a person is removed from Canada, reversing that removal is extraordinarily difficult. For our client, removal would have separated two Canadian children from their father — children who had no connection to their father's country of origin and who depended on him for daily care.

The humanitarian application that might have protected him was still pending. Allowing the removal to proceed would have mooted that application and inflicted irreparable harm on his entire family.

Federal Court stay motions in removal cases require a litigant to satisfy a three-part test: (1) a serious issue to be tried; (2) irreparable harm if the stay is not granted; and (3) a balance of convenience favouring the stay.

We prepared all materials in parallel: an urgent Notice of Motion, a supporting affidavit from our client, a memorandum of fact and law, and a motion for an expedited hearing. Everything was filed electronically before 5 PM the day our client called. We requested a hearing for the following morning.

Our central argument on irreparable harm was the impact on our client's two Canadian-born children. Under the Supreme Court of Canada's decision in Baker v. Canada, the best interests of children must be a primary consideration in humanitarian and compassionate assessments — and this principle extends to stay motions in cases involving Canadian children. We presented school records, letters from teachers, and evidence of our client's daily caregiving role.

On serious issue, we argued that the pending humanitarian application raised non-trivial questions about the propriety of proceeding with removal before that application was resolved. On balance of convenience, we noted that Canada's interests were not imperilled by a short delay, while our client's family faced permanent rupture.