Toronto, Ontario, January 16, 2006
PRESENT: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally and subsequently written for precision and clarification)
[1] The applicant applied for a stay of a removal order which is to take effect tonight at 11:55 p.m. The applicant, who is in custody, seeks a stay to her deportation order so that she can seek judicial review of the order of the removal officer. She argues the officer failed to take into account the best interest of her child for whose custody she is fighting with her estranged husband.
[2] The applicant, a native of Trinidad and Tobago, has a long involvement with Canadian family, criminal and immigration law. Inter alia, she has been previously twice been removed form Canada, she re-entered this country illegally through deception following her second deportation, she broke the terms of her bail bond, she pleaded guilty to hiring strangers to abduct her child contrary to a custody order, and she violated custody orders both in Alberta and Ontario.
[3] In the latest judgment against her dated January 6, 2006, refusing interim access to the child of whom she formerly had primary care, Perkins J. of the Ontario Court of Justice, Family Court made the following critical observation:
In summary, I find on the evidence before me:
· The mother can not be relied on to tell the truth. It is not safe to accept her version of events, or for that matter, her undertakings as to future events.
· The mother has not reliably exercised her access in the past and there is no good reason to think she will behave differently in the future.
· The mother will likely not be available for access at all, either because she is deported or because she is in immigration detention.
· The son does not now miss the mother. She has been absent from his life for so long that there is no lack that requires filling.
· However, if the mother were to resume access and then disappear as a result of being deported, which is a very substantial risk, or as a result of being reapprehended for breaching terms of release from immigration detention, which has occurred in the past and is a substantial risk for the future, the son would not understand the disappearance and would likely suffer a significant sense of loss. This would be harmful to him.
· The mother can not be relied on to act in the son's best interests when she is overwhelmed by her own issues of the day. She will act impulsively, rashly and without considering the consequences to the son.
· Supervised access, even if available, would not offer protection from the risk that the mother will for a third time expose the son to risk of physical and emotional harm at her hands.
[4] It is well established law that the issuing of a stay is an equitable remedy that will only be granted where the applicant appears before the court with clean hands. See Khalil v. Canada(Secretary of State) [1999] 4 F.C. 661 para 20, Basu v. Canada [1992] 2 F.C. 38, Ksiezopolski v. M.C.I. & S.G.C. [2004] F.C.J. No. 1715.
[5] In this case the applicant has anything but clean hands. She has shown a constant and persistent disregard for Canadian family law, criminal law and immigration law. It would be encouraging illegality, serve a detrimental purpose and be contrary to public policy if the court were to grant her the relief sought.
[6] Accordingly, given the circumstances of this case, the court is not prepared to exercise any equitable jurisdiction in respect of the applicant.
ORDER
THIS COURT ORDERS that in light of the applicant's conduct this application for stay will not be heard and hereby is dismissed.
"K. von Finckenstein"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-165-06
STYLE OF CAUSE: EMILLITA BRUNTON
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 16, 2006
AND ORDER BY: VON FINCKENSTEIN J.
APPEARANCES:
| Carole Simone Dahan |
|
| Marina Stefanovic
|
SOLICITORS OF RECORD:
| Carole Simone Dahan Toronto, Ontario
|
|
| John H. Sims Q. C., Attorney General of Canada Toronto, Ontario |