2019 FC, 2019 FC 1066

Date: 20190809 Docket: IMM-4749-19 Citation: 2019 FC 1066 Ottawa, Ontario, August 9, 2019 PRESENT: The Honourable Mr.

Justice Shore BETWEEN:ALEXANDRO SAUL COLMENARES AYALA IRENE GUADALUPE MARTINEZ MADUENO GRECIA GUADALUPE COLMENARES MARTINEZ CARLOS DANIEL COLMENARES MARTINEZ SKARLETT ALEXANDRA COLMENARES MARTINEZ SAUL DAMIAN COLMENARES MARTINEZApplicantsandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The application before the Court is for a stay of removal on the basis of a pending application for leave and judicial review. [2] Serious issues are raised in respect of a decision, not to defer removal, considering specific serious health issues beingcomprehensively treated in Canada for a child who will in, all likelihood, not be treated for the multi-faceted health issues under theexisting and ensuing circumstances, if removed to her country of origin. [3] It is also recognized that a pending humanitarian and compassionate application is in purview. [4] It appears that the Applicants will suffer irreparable harm due to Skarlett’s serious condition, if present continuous treatment isdiscontinued. [5] On the basis of evidence as per the Toth v Canada tripartite conjunctive test (Toth v Canada (Minister of Employment andImmigration), (1988) (FCA), 86 NR 302 (FCA)), the balance of convenience favours the Applicants under thecircumstances and fulsome context of the case. [6] It is understood that determination of the serious issue requires a strong case as the discretion to defer removal is of a limited nature. [7] Having considered all of the written and oral submissions of the respective parties, the Court concludes that a serious issue does existas to the best interests of the child, Skarlett, who has been diagnosed with a serious medical condition with its inherent complications,affecting multiple aspects of the child’s serious health issues.

If removed with her parents, Skarlett, who is receiving multi-facetedmedical treatment by a team of seven medical practitioners with an extensive comprehensive integral multi-aspect therapy program (withdocumentation on file, demonstrating the severity of the child’s conditions which necessitate comprehensive multi-faceted treatment),will face a very grave deterioration of her condition. [8] To that effect, it is incumbent to ensure consideration of evidence of the physician, Dr.

Jose Moises Gaxiola Vega, which is clearlypoint-specific in its detailed explanations of essential needs that Skarlett is receiving in Canada, that the family, in and of itself, and thecountry of origin of the family do not appear to be able to provide to the child under the specific circumstances of her medical conditionas outlined in the comprehensive background of the file. [9] The evidence, in respect of the child, is unspeculative and demonstrates "“special and compelling”" reasons. (Reference is made to Liv Canada (Public Safety and Emergency Preparedness), 2016 FC 451 in the context of Kanthasamy v Canada (Citizenship andImmigration), 2015 SCC 61, [2015] 3 SCR 909). [10] Due to unusual and exceptional circumstances for all the above reasons, the criteria of the Toth v Canada test have been satisfied infavor of the Applicants due to the child, Skarlett, in considering the file in its fulsome essence in context.

ORDER in IMM-4749-19 THIS COURT ORDERS that the motion for a stay of removal be granted until this Court finally disposes of the application for leaveand judicial review. "Michel M.J. Shore"

Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4749-19 STYLE OF CAUSE: ALEXANDRO SAUL COLMENARES AYALA et AL v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS STAY MOTION HELD VIA TELECONFERENCE ON AUGUST 8, 2019, FROM OTTAWA, ONTARIO, CALGARY, ALBERTA AND EDMONTON, ALBERTA ORDER AND REASONS: SHORE J. DATED: August 9, 2019 ORAL AND WRITTEN REPRESENTATIONS BY : Bjorna Shkurti D. Jean Munn For The Applicants Matthew Chao For The Respondent SOLICITORS OF RECORD : Caron & Partners LLP Barristers & Solicitors Calgary, Alberta For The Applicants Attorney General of Canada Edmonton, Alberta For The Respondent