2019 FC, 2019 FC 1312

Date: 20191018 Docket: IMM-6231-19 Citation: 2019 FC 1312 BETWEEN: BRIAN CHRISTOPHER LYNCH Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent REASONS FOR ORDER RUSSELL J. [ 1 ] Further to my previous Stay Order dated October 18, 2019, the following are the reasons. [ 2 ] The parties are not in dispute that a decision on whether to grant a stay of removal is governed by the conjunctive, tri-partite test in Toth .

The Applicant has to show that there is a serious issue for trial, that irreparable harm will result if the stay is not granted and that the balance of convenience favours him. In assessing serious issue with regards to a deferral decision, the Applicant must demonstrate that he is likely to succeed at the review stage. See Wang v. Canada (MCI) , 2001 FCT 148 . [ 3 ] In written and oral submissions, the Applicant has raised various grounds for a serious issue.

I do not need to deal in detail with all of them, but there is clearly no issue with the officer’s recitation of the law and principles that govern removal under s.48(2) of IRPA. The officer was also correct in his refusal to defer for the Applicant’s pending H&C and TRP applications. In fact, the only issue that requires some discussion is the officer’s handling of the Family Court situation and the best interests of the children. [ 4 ] Behind the motion and application there is a complex and drawn-out matrimonial dispute that involves two children.

Naturally, the Applicant wishes to be both a regular and active participant in the lives of his children and not to be disadvantaged in Family Court because of a change in the status quo if he is deported back to the U.S.

These are legitimate concerns and most of the oral hearing for this motion concentrated on these matters. [ 5 ] Generally speaking, the Applicant alleges that the officer failed to address the family situation adequately, failed to conduct an adequate BIOC analysis, and got important facts wrong. [ 6 ] As I read the officer’s analysis on this issue, he is clearly indicating that future arrangement for the children are a matter for the Family Court but that the Applicant is required to leave Canada and would be required to do so regardless of the outcome of the Family Court proceedings. [ 7 ] So I agree with the Applicant that the officer does not address in any detail the interim situation and the possible impact of removal upon the Applicant’s relationship with his children during that period, as well as what removal might do to what the Applicant wishes to achieve in the matrimonial dispute. [ 8 ] In particular, the Applicant faults the officer for an inadequate BIOC analysis. [ 9 ] I think it is generally accepted that a removals officer does not have to conduct a full BIOC analysis prior to removal and need only consider the short term needs of the children.

In this case, the children will simply remain with their mother and there is insufficient evidence to suggest that she lacks the means to take care of them. The real issue is the psychological and emotional impact on the children as a result of not seeing their father in accordance with their current routine and the

schedule that the parents have worked out. [ 10 ] Relying heavily upon Justice Barnes’ decision in Huang v. Canada (MPSEP) , 2018 FC 446 at para 9 , the Applicant says that the officer’s analysis was not sufficiently robust: It is one thing for a deferral officer to limit the scope of a best interests analysis in circumstances where the child’s interests have already been fully considered in an earlier review. It is quite another to conduct such a review where those interests have never been addressed before the proposed removal of a parent. In this latter situation, the review must be reasonably robust.

Central to the exercise of that discretion must be a careful assessment of the length of the likely separation and the financial and emotional hardships that are expected to prevail over time. In my view, the analysis done here was perfunctory and inadequate and, therefore, unreasonable. [ 11 ] The facts in Huang were very different from the present case. Mr. Huang was a Chinese national who was being removed to China and his removal meant he would separate from his family for a lengthy period and his wife needed him to provide child care while she worked.

The child was also " “of tender years” " and the separation meant that the family would face financial difficulties. As Justice Barnes says at paragraph 8 of his decision: The suggestion in the Officer’s decision that the best interests of the child threshold could only be met with satisfactory evidence showing “irreparable and permanent separation” vastly overstate the burden. There is no doubt that this separation would be prolonged and, therefore, hurtful to the child’s formative needs. The lengthy separation of a parent from a child of tender years requires a far more nuanced assessment than this one.

[12] The problems in Huang that required a more "“robust”" review do not arise in the present case and Huang does not change the lawthat governs BIOC in the context of a S.48(2) removal. [13] The law continues to be that a removals officer need not do a full BIOC before implementing a s.48(2) removal. Inland removalsofficers are not equipped for such an analysis. A removals officer is required to address the short-term needs of any child involved.

Theword "“robust”" as used in Huang is not a legal term of art and Justice Barnes clearly intends it to mean that, given the very difficultcircumstances for the family in Huang, the officer should have done more than he did to adequately address the child’s needs. [14] In the present case, no such difficult circumstances exist. The Applicant is being deported to the U.S.A. and there is no indicationthat he will be separated from his children for a long period of time and will not be able to see them and continue to contribute to theirwell-being. Their present

schedule with their father will be interrupted, but a new status quo will establish itself in the interim periodbefore the Family Court, in the not-too-distant future, will no doubt address the best interests of the children in a fulsome way. In themeantime the children will continue to be fully taken care of by their mother and with whatever contributions the Applicant can make asa resident in the U.S. for the time being.

There is no indication that the Applicant will not be able to see his children for a very longperiod of time, as was the case in Huang. [15] I know of no authority that requires the mandatory intent of s.48(2) to be suspended in order to assess the needs of one side in amatrimonial dispute. In the middle of what appears to be, on the record before me, a fairly acrimonious dispute, and with informationand submission from only one party to that dispute, it would be dangerous and indeed, impossible, for a removals office to attempt anysubstantial BIOC.

The evidence before me suggests that the children, although perhaps very sad and worried at the prospect of a breakin their routine with the Applicant, are nevertheless well looked after and cared for by their mother. In these circumstances, there waslittle more that the officer could do, or was required to do, to address the short-term needs of these children. [16] At the hearing of this matter, I asked Applicant’s counsel repeatedly to state and provide convincing evidence of irreparable harm toeither the children or the Applicant if removal occurs.

With regard to the children, it was the immediate separation from their father andfor the Applicant, it was the loss of immediate contact with his children and his ability to guide their lives and the possible disadvantagesthat removal might cause him in the matrimonial dispute. [17] I don’t think that the mere fact of separation from their father can qualify as irreparable harm in this case. The children willobviously miss him but there is no clear and convincing evidence that they will experience more than any other child who is separatedfrom a parent as a result of deportation.

It has to be born in mind that we are only looking at the period between the decision and thejudicial review of this matter. And in the present case, we don’t know how long any separation will be. The same goes for theApplicant. If he doesn’t see his children as often as he sees them at the moment and cannot, for the time being, be involved in their livesas much as he would like to be (and might again become involved in the future) there is no evidence of any harm that is irreparable.

Andany difficulties or prejudice this might give rise in the matrimonial dispute are not well enough defined to be regarded as irreparable harmunder present authorities. We just don’t know what will happen. There is no clear and convincing evidence of irreparable harm in thiscase. [18] The following general principles govern an assessment of the irreparable harm part of the test:

a) The onus is on the applicants to demonstrate through clear and convincing evidence of irreparable harm, that theextraordinary remedy of a stay of removal is warranted. Atwal v MCI, 2004 FCA 427

b) Irreparable harm must constitute more than a series of possibilities and cannot be simply based on assertions andspeculation. The evidence supporting such a finding must be clear and non-speculative. Atwal, supra; Ghavidel v MCI, 2007 FC 397 at para 17; Radj v MCI, 2007 FC 100 at para 40; Patel, supra

c) Irreparable harm must be something more than the inherent consequences of deportation. To be deported is to lose yourjob, to be separated from familiar faces and places. It is accompanied by enforced separation and heartbreak. Melo v MCI, (2000), (FC), 188 FTR 39 at para 21 Tesoro v Canada (MCI), 2005 FCA 148 at paras 34-35

d) Denying a stay of removal while an H&C application is pending does not, unless a decision is imminent, amount toirreparable harm as the H&C application will continue to be processed and, if positive, the applicant may be allowed toreturn to Canada. As the Federal Court of Appeal stated in Baron, “H&C” applications are not intended to obstruct a validremoval order”.

Patel, supra; Palka v MPSEP, 2006 FCA 165, supra at paras 13-15; Baron, supra at paras 87-88 [19] As this Court noted in the Patel case in the context of a stay of removal: The Federal Court of Appeal has frequently insisted on the attributes and quality of the evidence needed to establishirreparable harm in the context of injunctive relief.

Irreparable harm must flow from clear and non-speculative evidence…Simply claiming that irreparable harm is possible is not enough: “[I]t is not sufficient to demonstrate that irreparable harm is‘likely’ to be suffered” (United States Steel Corporation v Canada (Attorney General),…There must be evidence that themoving party will suffer irreparable harm if the injunction or the stay is denied…In addition, the evidence must be morethan a series of possibilities, speculations, or hypothetical or general assertions…Assumptions, hypotheticals and arguableassertions unsupported by evidence carry no weight…Quite the contrary there needs to “be evidence at a convincing level ofparticularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted”

( Gateway City Church at para 16, citing Glooscap at para 31).

Patel, supra [ 20 ] It is also worth pointing out that Diouf v Canada (MCI) , 2013 FC 220 at para 11 suggests that divorce proceedings are insufficient to meet the threshold of irreparable harm. [ 21 ] I agree with the statement of the Applicant’s counsel that it will be better for the children to have both parents present and involved in their lives, but the extent of their involvement will be decided in the matrimonial court and I cannot say that in the period before the judicial review the Applicant has demonstrated that either he or the children will suffer irreparable harm as present authorities define it. [ 22 ] I have reviewed the decision carefully and can find no other serious issues that require discussion here. [ 23 ] All of which means that I cannot find that the Applicant has satisfied the Toth test for a stay of removal and I cannot interfere. “James Russell” Judge Toronto, Ontario October 18, 2019 FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-6231-19 STYLE OF CAUSE: BRIAN CHRISTOPHER LYNCH V MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: October 17, 2019 REASONS FOR ORDER: RUSSELL J.

DATED: OCTOBER 18, 2019 APPEARANCES : Debora Brubacher For The Applicant Melissa Mathieu For The Respondent SOLICITORS OF RECORD : Brubacher Law Professional Corporation London, Ontario For The Applicant Attorney General of Canada For The Respondent