2018 FC, 2018 FC 1303

Date: 20181221 Docket: IMM-6381-18 Citation: 2018 FC 1303 Toronto, Ontario, December 21, 2018 PRESENT: The Honourable Mr. Justice Pentney BETWEEN:RADOVAN CVETKOVIC ZRINKA CVETKOVIC DARKO CVETKOVIC GORAN CVETKOVICApplicantsandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The Applicants seek a stay of removal, scheduled for December 26, 2018, to Croatia. These are my reasons for granting this order. I. Background [2] The Applicants are a family of four (a father, mother, and two minor children) all of whom are citizens of Croatia.

They arrived inCanada in September 2012 and originally filed a refugee claim. The basis of that claim was the experience of the family related to thefact that the father is ethnically of Serbian descent, while his wife is of Croatian descent. They claimed to have experienceddiscrimination, violence and threats as an ethnically mixed couple. [3] The couple withdrew their refugee claim in March 2018, and then filed an application for permanent residence on humanitarian andcompassionate [H&C] grounds in August 2018.

This application remains outstanding. [4] They received a direction to report on December 12, 2018, advising them they were scheduled to be removed to Croatia onDecember 26, 2018.

They filed a request for a deferral of this removal until their H&C claim is decided; in the alternative until the end ofthe current school year; and in the further alternative until January 18, 2018 so that their eldest son could attend a currently-scheduledappointment with his pediatric respirologist. [5] This deferral request was refused on December 18, 2018, although the decision did not become available until December 20, 2018.The Applicants have filed an application for leave to seek judicial review of this decision, and in addition they have brought thisapplication for a stay of removal. II.

Issue and Analysis [6] The only issue in this case is whether a stay of removal should be granted in these circumstances. [7] In considering whether to grant a stay of removal, this Court applies the same test as for interlocutory injunctions.

The SupremeCourt of Canada recently restated the test as follows: At the first stage, the application judge is to undertake a preliminary investigation of the merits to decide whether theapplicant demonstrates a “serious question to be tried”, in the sense that the application is neither frivolous nor vexatious.The applicant must then, at the second stage, convince the court that it will suffer irreparable harm if an injunction isrefused.

Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the partywhich would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on themerits. (R v Canadian Broadcasting Corp, 2018 SCC 5 at para 12, references omitted) [8] This three-pronged test is well-known, and it has been applied in the immigration context in Toth v Canada (Minister of Employmentand Immigration), (FCA). The Applicants must meet all three elements of the test, though in practice there is oftensome overlap between the three elements.

In the end, I must make an overall assessment – as the Supreme Court of Canada recentlynoted: "“The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case.”"(Google Inc v Equustek Solutions Inc, [2017] 1 SCR 824, 2017 SCC 34 , para 25). The application of this test is highlycontextual and fact-dependent.

A. Serious Issue [9] In many cases, the serious issue branch of the test is not a high threshold.

However, in cases where the stay is requested following arefusal to defer removal, it has been found that a higher threshold applies, which requires the Applicant to demonstrate a "“likelihood ofsuccess”" or "“quite a strong case”" in regard to the underlying application for leave and judicial review (Wang v Canada (Minister ofCitizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682 [Wang] ; and Baron v Canada (Minister of Public Safety and EmergencyPreparedness), 2009 FCA 81, [2010] 2 FCR 311 [Baron], at para 67).

This is because the granting of a stay of removal may, in effect,give the Applicants the remedy they are seeking in the judicial review application, since it will defer their removal from Canada [Wang]. [10] Officers have a limited discretion to defer removal: Baron, para 49. Subsection 48(2) of the Immigration and Refugee ProtectionAct, SC 2001, c 27 [IRPA] provides that a removal order "“must be enforced as soon as possible.”" The Officer is limited to consideringwhen the valid removal order should be enforced.

One set of considerations relates to whether an immediate removal will expose theapplicant to the risk of death, extreme sanction, or inhumane treatment: Wang, cited with approval in Baron at para 51. [11] It is recognized, however, that other considerations may influence the timing of the removal, including the short-term best interestsof the child.

This can include deferring removal to allow the children to complete their school year, or to obtain further medicaltreatment, or to enable arrangements to be made for the care of the child where the parent is leaving but the child is staying in Canada:see Munar v Canada (Minister of Citizenship and Immigration), 2005 FC 1180 , [2006] 2 FCR 664 [Munar], paras 36-40, citedwith approval in Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 [Lewis], at paras 59 and 83.

Thelist of considerations is not closed, and each case must be assessed based on its particular circumstances. [12] A judicial review of a deferral decision is done on the standard of reasonableness: Lewis, paras 42-43. [13] The Applicants assert that the officer’s denial of their deferral request is unreasonable, because the officer erred in dealing withtheir outstanding H&C application, and failed to engage in the appropriate best interests of the child analysis.

In my view, it is notnecessary to address both issues, because I find that the Applicants have met the high threshold in regard to the "“serious issue”" inrelation to the best interests of the child analysis of the officer. [14] In regard to the short-term best interests of the child, in my view the following factors are the most pertinent: Their sons (age 14 and 8) are currently in the midst of their school year. Their oldest is in grade 9, and their youngest in grade 3.Both receive specialized support related to their learning disabilities.

Their youngest son has an Individualized Education Plan to support his success in school. He has been diagnosed with a mildintellectual disability and attention deficit-hyperactivity disorder. The evidence shows that he is enrolled in grade three, butworking at a kindergarten level.

His current resource teacher states: "“If [he] is placed in a new learning environment that is taughtin a language he doesn’t speak and vaguely understands his academic progress which is already compromised will be negativelyimpacted. [He] is already working far below grade level and any disruption to his schooling will only serve to widen the academicgap between him and his peers.”" Their oldest son has been identified as having a mild intellectual disability. He has other health issues which will be discussedbelow.

He has been placed in a supported specialized program since 2013, and has made progress in school since that time. Thereis evidence from his school that any interruption in his education will have a negative impact on his progress. Their oldest son also has congenital lobar emphysema, and had surgery to remove part of his lung when he was two and a halfyears old. He has asthma and an abnormal lung function. He has received care from a pediatric respirologist since 2016.

His doctorsays that "“Regular medical appointments are important to follow [his] respiratory symptoms and lung function.”" He is bookedfor his next appointment with this specialist in January 2019. [15] The CBSA officer’s decision to deny the deferral request deals with the best interest of the child considerations.

The officer’sanalysis in relation to the interruption of the children’s school year is captured in the three following phrases: Noting that they are in grade 9 and grade 3 "“they are currently not enrolled in a formative year of schooling (i.e. graduating fromgrade 8, high school, or post-secondary education).”" There is "“insufficient evidence to establish that [they] would not be permitted to re-enroll in the Croatian education system upontheir return.”" "“I accept that [they] both have special needs and require support in their education.

I however find that counsel has submittedinsufficient evidence to establish that the children would not be able to receive support for their learning disabilities in Croatia."” [16] In relation to the claim relating to the eldest son’s medical condition, the officer refers to evidence that this condition is not animpediment to flying, and then finds that counsel has provided insufficient evidence that he would not be able to receive a medicalassessment or medical treatment upon his return to Croatia. [17] The Applicants claims that each of these constitutes an error, and that this is sufficient to meet the higher threshold for the firstelement of the test for a stay.

I agree. [18] I find that the Applicants have raised a serious issue regarding the officer’s best interests of the child analysis. In view of theinterlocutory nature of these proceedings, and the time pressure associated with this stay of removal, I will not engage in a thoroughanalysis of this point. In essence, I find that the officer did not engage with the evidence on the short-term impact of the timing of thisremoval for this family in these particular circumstances. [19] In particular, the officer did not mention the most recent evidence from the teachers or the specialist regarding the impact of an

interruption of support and care on these children. [20] The impact on the children of an interruption of their education is a factor that is repeatedly referred to by decisions as one basis fora deferral.

I agree with the Respondent that the fact that a removal may occur during a school year is not – in and of itself – an automaticbar on removal (see, for example: Jackson v Canada (Public Safety and Emergency Preparedness), 2011 FC 1381 , para 31). [21] However, in the particular circumstances of this case, I find that the officer did not engage with the evidence about the short-termimpact of an interruption of the educational supports and medical treatment. [22] The reference by the officer that they are not in a "“formative year”" may well be a relevant consideration, but in the circumstancesof this case it is not particularly telling.

The statement that there was no evidence that they "“would not be permitted to re-enroll in theCroatian education system”" is an indication that the officer did not consider the appropriate evidence, or measure it against the propertest – which requires a careful and sensitive analysis of the short-term best interests of the children. [23] There was no claim that the children would be "“denied”" education upon their return to Croatia.

Rather, the deferral request was toprevent the inevitable disruption of removal mid-year – for a student with a diagnosed need for specialized learning supports, who issucceeding in school, and whose family has not been provided an adequate opportunity to plan for an effective transition to a differenteducation system; and for a young person who needs ongoing specialist medical attention and care, and whose family has not had anopportunity to discuss a plan to transition this care with the specialist who has been treating him in Canada.

It is not realistic to haveexpected the family to be able to obtain an appointment with the specialist prior to the currently-scheduled one in January, and absentthat it is difficult to understand how they could have gone about making appropriate arrangements. [24] Furthermore, the reference to the lack of evidence that the children would be "“able to receive support for their learning disabilitiesin Croatia”" tends to overlap with the type of analysis that should be done on an H&C application; it does not address the short-termneeds of the children in regard to their educational transition.

The same may be said about the officer’s analysis in regard to medical care– there is no consideration of the evidence about the need for ongoing care, to "“[maintain] the well-being of children who requirespecialized ongoing medical care in Canada”" (Lewis, para 83).

Rather, the officer appears to be conducting more of an H&C assessmentof the child’s longer-term prospects of receiving appropriate medical care. [25] I find that the Applicant has demonstrated a serious question as to whether the officer’s analysis is "“reasonable, transparent orintelligible”" in regard to the legal issue and in light of the most recent relevant evidence. This is sufficient to meet the first element ofthe test. [26] For these reasons, I find that the Applicant has met the threshold of establishing quite a strong case in relation to the underlyingjudicial review of the refusal to defer removal.

B. Irreparable Harm [27] On the facts of this case, I find there is considerable overlap between the arguments and evidence in support of the serious issue andirreparable harm elements of the test.

This is not uncommon where the case involves a challenge to a refusal to defer removal: Kanumbiv Canada (Immigration, Refugees and Citizenship), 2018 FC 336, at para 23. [28] The law requires that irreparable harm be established based on evidence, not mere speculation. [29] The case-law of this Court demonstrates that in some instances the interruption of a school year has been found to be sufficient todemonstrate irreparable harm, and in other cases it has not: contrast Kakonyi v Canada (Public Safety and Emergency Preparedness),2008 FC 1410 with Commissiong v Canada (Minister of Citizenship and Immigration), 2001 FCT 539. [30] In my view, it is not possible to draw clear lines on this – each case must be assessed on its merits.

However, the impact on a child’slife of the likely loss of a school year cannot be discounted. The harm cannot be undone and it is reasonable to infer that an interruptionof specialized support for ongoing learning needs would have downstream effects on the educational and social success of the children. Iwould adopt the words of Justice Grammond in Iheonye v Canada (Minister of Public Safety and Emergency Preparedness), 2018 FC375, at para 20: "“Moreover, the course of one’s childhood cannot be changed retroactively.

Children are particularly sensitive to theway their lives unfold.”" [31] As I have noted above, in this particular case the harm is not just separation from school friends, or the "“routine, if painful,incident(

s) of removal”": see Ghanaseharan v Canada (Minister of Citizenship and Immigration), 2004 FCA 261 , para 14. [32] On the facts of the case before me, the harm relates to the need to plan the transition of these two children with ongoing needs forspecialized learning supports, into a new school system where there is evidence that their mixed ethnicity may well be a basis fordiscriminatory treatment.

The harm also relates to the absence of a reasonable opportunity to plan for a transition in specialist medicalcare for an ongoing medical condition, and the impact of an interruption in that care on the well-being of the child (Lewis, para 83). [33] In regard to this, the Respondent argues that the family was aware that the withdrawal of their refugee claim would end thestatutory stay that was in place while that claim was pending. They should have started to make plans for their removal, including plansfor their children’s educational and medical needs.

There is no evidence that they have done so, or that they have encountered barriers inCroatia that have prevented them from making suitable arrangements. The Court cannot rely on speculation about potential negativeimpacts, and the onus rests on the Applicant to bring forward clear and convincing evidence. [34] The difficulty with this submission is that there is evidence in the record that an interruption of their educational supports and thespecialist medical care would have a negative impact.

This evidence is not challenged, nor is there other evidence about the type ofsupport or care that is generally available in Croatia. The Respondent says that the Applicants have failed to meet their onus, but I am notpersuaded. There is not very much evidence, but there is enough to support a finding of irreparable harm in these circumstances.

[35] In view of all of these specific circumstances, and considering the evidence as a whole, I find that the Applicants have establishedirreparable harm associated with being returned to Croatia on December 26, 2018. C. Balance of Convenience [36] In view of the findings above, and having weighed the competing considerations, I find that the balance of convenience weighs infavour of the Applicants. [37] As a general matter, Canada has an interest in the prompt removal of persons whose refugee claims have not been upheld (asarticulated in s 48(2), cited above).

This is not merely a matter of administrative convenience, it goes to a wider public interest inensuring support for the integrity of the immigration program as a whole: Baron; Vieira v Canada (Public Safety and EmergencyPreparedness), 2007 FC 626. [38] Canada also has an interest in respecting its obligations under the Canadian Charter of Rights and Freedoms, in particular the rightto "“life, liberty and security of the person”" set out in

section 7, as described by the Supreme Court of Canada in Suresh v Canada(Citizenship and Immigration), 2002 SCC 1 , [2002] 1 SCR 3.

Furthermore, Canada has an interest in living up to its solemnundertakings in international law, most particularly the United Nations Convention Relating to the Status of Refugees, and in this casethe United Nations Convention on the Rights of the Child. [39] In this case, the evidence shows that the parents have made efforts to learn English and to establish themselves in their community.The father is working part-time, and the mother has a tentative job offer which has not been finalized due to her uncertain immigrationstatus.

There is no security or other risk indicated in the evidence. [40] In the circumstances of the case, and in light of the evidence regarding the needs of the children, in my view there is a stronginterest in ensuring that the transition to Croatia for this family – and these children – is done in a way which seeks to ensure that theharms and risks are minimized. [41] I find that the fact that the Applicants only received a direction to report on December 12, 2018 – which indicated they were todepart on December 26, 2018 – is a relevant consideration in weighing the balance of convenience.

I find that in the particularcircumstances of this case, this did not give this particular family a reasonable opportunity to make the types of plans that the situation oftheir family and their children requires. [42] Having given the matter careful consideration, I find the balance of convenience weighs in favour of the Applicants. [43] I would add here that the Applicants submitted that they simply did not have sufficient time to plan their departure and to ensure anadequate transition for their children. I am granting them that time.

If they seek a future deferral or stay of removal, no doubt my decisionwill be a consideration for any future decision-maker. The evidence shows that these are caring and loving parents seeking to supporttheir children. They should now begin to work with authorities in Canada and in Croatia, to make these plans. III. Remedy [44] For the reasons set out above, I will issue an order staying the Applicants’ removal from Canada until June 30, 2019, a few daysafter the end of the current school year. ORDER in IMM-6381-18 THIS COURT ORDERS that the application for a stay of removal is granted until June 30, 2019.

"William F. Pentney" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6381-18 STYLE OF CAUSE: RADOVAN CVETKOVIC ET AL v THE MINISTER OF PUBLIC SAFETY ANDEMERGENCY PREPAREDNESS PLACE OF HEARING: Toronto, Ontario

DATE OF HEARING: December 21, 2018 ORDER AND REASONS: PENTNEY J. DATED: December 21, 2018 APPEARANCES : Prasanna Balasundaram For The Applicants Daniel Engel For The Respondent SOLICITORS OF RECORD : Downtown Legal Services Barrister and Solicitor Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent