Family law and immigration law intersect in many ways. There is a considerable body of case law that deals with the intersection of family law and immigration law when a party in a family law case is subject to deportation. In this blog, I shall try to summarize the jurisprudence based on a Court of Appeal’s decision.
- Purpose of Non-Removal Orders:
- Non-removal orders under the Children’s Law Reform Act (CLRA) are intended to prevent parents from removing children from the jurisdiction in contested family law proceedings, not to frustrate federal deportation orders.
- Family courts should not be used to delay deportation under the guise of determining the best interests of a child.
- Jurisdictional Boundaries:
- In cases where there is no custody dispute or risk of child removal, non-removal orders should not target immigration authorities or interfere with decisions under the Immigration and Refugee Protection Act (IRPA).
- Immigration-related claims should be resolved within the immigration system, not through provincial family courts.
- Role of the IRPA:
- The IRPA provides mechanisms for considering the best interests of children affected by deportation orders.
- Federal jurisprudence (e.g., Idahosa v. Canada) emphasizes that while the best interests of children are important, they do not outweigh all other considerations in immigration decisions.
- Federal Court as the Proper Forum:
- Individuals subject to deportation can apply to the Federal Court for a stay of removal pending humanitarian and compassionate (H&C) applications.
- This is the appropriate venue to balance competing interests, rather than using provincial non-removal orders to delay the enforcement of removal.
- Consistency Across Cases:
- Ontario case law aligns with federal jurisprudence, affirming that non-removal orders should not be granted solely to obstruct deportation.
In conclusion, the Ontario Court of Appeal clarified that family courts cannot interfere with federal immigration processes by issuing non-removal orders aimed at preventing deportation, particularly when there is no custody dispute or risk of child relocation. The Federal Court is the proper venue for addressing such immigration-related issues.
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