Butcher v. Canada (Citizenship and Immigration)

Butcher v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2011-05-26
Neutral citation
2011 FC 619
File numbers
IMM-2948-11, IMM-2950-11, IMM-3228-11
Decision Content
Federal Court
Cour Fédérale
Date: 20110526
Docket: IMM-2948-11
IMM-2950-11
IMM-3228-11
Citation: 2011 FC 619
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, May 26, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
BUTCHER ABIGAIL ELIZABETH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASON FOR ORDER AND ORDER
[1] A child should not be used for the purposes of a legal proceeding where the evidence is nonexistent, where a void is filled by a fact that is not in evidence.
[2] There is no evidence in the file to indicate that custody of the child is shared between the child's father and mother; therefore, the mother has sole responsibility for her child in this case.
[3] In Toth v. Canada (Minister of Employment and Immigration) (1988), 86 NR 302, 11 ACWS (3d) 440 (FCA), the established test is tripartite and conjunctive. The three components of the test are met in favour of the applicant.
[4] Considering custody of the child is not shared; and considering the applicant, the mother, was educated in Canada and works and participates in community activities with children and adults; and she has forged strong ties to Canada according to the evidence; and the father does not seem to be in the picture; the case merits reconsideration on the inherent humanitarian and compassionate grounds. There is no assumed tie with the child's father and therefore, as a mother with no support, the applicant could, in the conditions of her country of origin, find herself in a precarious and impoverished situation after her removal with the child.
[5] For the reasons summarized, the Court orders a stay solely for humanitarian and compassionate (H&C) considerations (docket IMM-2950-11) to be reconsidered by another officer. (The two other dockets (IMM‑2948-11 and IMM-3228-11) are not applicable further to the considerations of the respondent’s statements with which the Court agrees entirely and accepts).
[6] The applicant has met the criteria from the Toth test for a judicial stay. The motion for a stay is granted until the application for leave is determined or, if applicable, until judgment is rendered on the application for judicial review.
ORDER
THE COURT ORDERS that the applicant's motion for a stay of removal be granted until the application for leave is determined or, if applicable, until judgment is rendered on the application for judicial review.
"Michel M.J. Shore"
Judge
Certified true translation
Elizabeth Tan, Translator
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS: IMM-2948-11, IMM-2950-11 and IMM-3228-11
STYLE OF CAUSE: BUTCHER ABIGAIL ELIZABETH v.
MINISTER OF CITIZENSHIP AND IMMIGRATION AND MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
MOTION CONSIDERED BY CONFERENCE CALL ON MAY 25, 2011, BETWEEN OTTAWA, ONTARIO AND MONTRÉAL, QUEBEC
REASONS FOR ORDER
AND ORDER: SHORE J.
DATE OF REASONS: May 26, 2011
APPEARANCES:
Anthony Karkar
FOR THE APPLICANT
Evan Liosis
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Anthony Karkar, counsel
Montréal, Quebec
FOR THE APPLICANT
Myles J. Kirvan
Deputy Attorney General of Canada
Montréal, Quebec
FOR THE RESPONDENT