Date: 20001117
Docket: IMM-5420-99
BETWEEN:
VALVERINE OLIVIA CILBERT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] This is an application for judicial review of the decision of Senior Immigration Officer Darryl Zelisko ("Officer Zelisko"), dated October 19, 1999, refusing the Applicant's request, pursuant to subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act), for an exemption, based on humanitarian and compassionate grounds, from subsection 9(1)1 of the Act.
[2] The Applicant, a British citizen born in the Turks and Caicos Islands, first came to Canada in September 1994 as a visitor. She entered Canada for the purpose of visiting her fiancé, a Canadian citizen, who had sponsored her visit. During her visit, the Applicant had a relationship with another individual, Michael Dobbin, which resulted in pregnancy. The Applicant gave birth to the child, Liam, on August 15, 1995 in the United States. Following the birth, Mr. Dobbin went to the United States and brought the Applicant and the child back to Canada. The Applicant then lived with Mr. Dobbin in Calgary for approximately five months before they separated.
[3] In March 1996, the Applicant attempted to leave Canada with Liam, but she was prevented from doing so by the police because Mr. Dobbin had filed an application for custody and had obtained an interim ex parte order from the Court of Queen's Bench of Alberta granting him sole custody. When the matter returned to Court, the Applicant was awarded sole custody of Liam. She then attempted once more to leave Canada with Liam, but she was stopped because Mr. Dobbin had appealed the court order. The Alberta Court of Appeal referred the matter back to the Court of Queen's Bench for reconsideration.
[4] On September 17, 1998, the custody issue was resolved by a consent order granting the Applicant and Mr. Dobbin joint custody, with day-to-day care entrusted to Mr. Dobbin. The Applicant was granted access to Liam every other weekend and every Wednesday, as well as the right to participate jointly in decision-making with regard to all major issues in the child's life. The court order also stated that the Applicant was prohibited from removing Liam from the province of Alberta without written permission from Mr. Dobbin or a further court order. In addition, the order specified that should the Applicant leave Alberta, Mr. Dobbin could apply for sole custody. It should also be mentioned that Liam has been diagnosed with autism and requires speech therapy.
[5] On December 30, 1998, the Applicant was reported to be a person described in paragraph 26(1)(c) of the Act, that is, that she ceased to be a visitor as she was a person who remained in Canada for a period of time greater than that for which she was authorized to remain in Canada, as well as in paragraph 27(2)(e) of the Act, that is, that she entered Canada as a visitor and remained in Canada after she ceased to be a visitor. The Applicant subsequently became subject to a deemed deportation order on March 6, 1999.
[6] On February 9, 1999, the Applicant submitted her request for exemption from the immigrant visa requirement at subsection 9(1) of the Act, based on humanitarian and compassionate grounds. In her application, the Applicant indicated that she did not want to be separated from her son, and felt that they would both suffer excessive hardship if she had to submit her application at a visa office outside Canada. By letter dated October 19, 1999, the Applicant was informed by Officer Zelisko that her request was refused. The Applicant subsequently received a letter dated November 18, 1999 from Officer Zelisko, which included the reasons for his decision.
The Decision of Officer Zelisko
[7] In his brief decision, after stating the facts, Officer Zelisko concluded the following:
| With regards to what is in the best interest of the child, the Alberta courts dealt with the custody issue by giving joint custody to the subject and Canadian father. The father was designated primary care giver and the subject was given visitation rights. In the consent order, it should be noted that should the subject leave Alberta, the father has the right to apply for sole custody. It should also be mentioned that the child is autistic. It is reasonable to assume that the available care in Alberta would be better than that in the Turks & Caicos Island. |
| The subject has always stated that her intentions were not to remain in Canada, rather return to the Turks & Caicos Islands. |
| As the courts have dealt with the issue of what is best for the child and given the fact that the subject has indicated her wanting to return home, I am not satisfied that there are sufficient H & C grounds to warrant waving the 9(1) visa requirement. |
Submissions
[8] The Applicant first submits that Officer Zelisko erred in law in failing to take into account the effect on her of losing contact with her child, and the effect on the child of losing contact with his mother. She argues that because of the bond between her and her child, and because of the child's special needs, he would suffer excessive hardship if separated from her.
[9] Second, the Applicant submits that Officer Zelisko erred in law in failing to properly consider the best interests of the child, as required by Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817. The Applicant argues that there was no substantive consideration in Officer Zelisko's decision of the child's circumstances, nor was there any reference in the decision to consideration of the child's relationship to her, his particular needs or circumstances, or the potential hardship that might result to him from the refusal of her application.
[10] Furthermore, the Applicant contends that if the Alberta Court order is to be interpreted as an expression of the child's best interests, then it is clear that it is in the child's best interests to maintain ongoing and frequent contact with his mother, and that those best interests would be seriously compromised by the Applicant's removal from Canada. The Applicant argues that the fact that the custody order allows the father to apply for sole custody if the Applicant leaves Alberta is irrelevant to the issue of the child's best interests.
[11] Finally, the Applicant submits that Officer Zelisko erred in law in misinterpreting the evidence that was before him, in particular with regard to the Applicant's intentions to remain in Canada. The Applicant contends that Officer Zelisko appeared to consider the Applicant's stated intention that she never intended to stay in Canada as a factor weighing against the humanitarian and compassionate factors. The Applicant argues that this consideration was unreasonable, given the evidence she provided that she was not stating an unwillingness to live in Canada, but a recognition of her tenuous position in this country. According to the Applicant, Officer Zelisko also appeared to rely, as a negative factor, on his conclusion that she had tried to take her child out of the country in defiance of a court order; however, this is contradicted by the Applicant's evidence to the effect that she never knowingly defied a court order to remove the child. The Applicant contends that it is patently unreasonable, both to fault her for not wanting to stay in Canada illegally and to blame her for doing so.
[12] With respect to the Applicant's first argument, the Respondent submits that there was no evidence other than the Applicant's bald assertion that her separation from her child would cause them both excessive hardship. According to the Respondent, Officer Zelisko considered that allegation, as well as the fact that the child's father was designated by the Alberta courts to be the primary caregiver. The Respondent therefore submits that Officer Zelisko took into account all of the evidence that was before him. Regarding the effect on the Applicant of being separated from her child, the Respondent points out that Officer Zelisko considered the evidence indicating that the Applicant has three other children in the United States, now in the care of their fathers or, in one case, in the care of Social Services, from whom she voluntarily separated herself.
[13] The Respondent also contends that there is no merit to the Applicant's argument that Officer Zelisko failed to properly consider the best interests of the child. The Respondent submits that since Officer Zelisko considered that the courts awarded primary custody of the child to his father, as well as the fact that the child was autistic and that better facilities would likely be available in Canada for his special needs, he was alert, alive and sensitive to the child's best interests. The Respondent further argues that it was reasonable for Officer Zelisko to adopt the decision made by the Alberta courts on the issue of custody, since the court would have had evidence from both parents on the subject of the child's best interests.
[14] Finally, with respect to the Applicant's argument that Officer Zelisko misconstrued the evidence, the Respondent submits that there is no evidence that she had no prior knowledge that she was not permitted to leave the country with her child during the child custody proceedings. The Respondent contends that Officer Zelisko found the Applicant to be in violation of the laws of Canada because she attempted to leave when she was prohibited from doing so because of the child custody proceedings in progress at that time, and because she failed to leave in accordance with her departure order, which became a deemed deportation order on March 6, 1999, due to the Applicant's failure to leave Canada.
Analysis
[15] In Baker, supra, the Supreme Court of Canada determined that the appropriate standard of review for decisions made under subsection 114(2) of the Act was reasonableness simpliciter. L'Heureux-Dubé J. stated the following at pages 857 to 858:
| These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter. |
[16] Therefore, the issue in the case at bar is whether the decision of Officer Zelisko was unreasonable.
[17] The Applicant's first two arguments can be dealt with at the same time. With respect to the consideration of the best interests of the children in an H & C application, this issue was discussed in Baker, supra. L'Heureux-Dubé J., speaking for the Court, stated the following at page 864:
| [...] Therefore, attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for an H & C decision to be made in a reasonable manner. [...] |
| The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for an exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children's best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when the children's interests are given this consideration. However, when the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision will be unreasonable. |
[18] In the case at bar, it is clear that Officer Zelisko gave very little consideration to the best interests of the child. I agree with the Applicant's contention that although Officer Zelisko referred to that concept in his decision, he made no substantive consideration of the individual child's interests. Instead of considering on his own the best interests of the child, Officer Zelisko relied entirely on the custody order granted by the Alberta Court of Queen's Bench. I cannot accept the Respondent's submission that Officer Zelisko could rely on the Alberta Court decision because the Court would have heard evidence concerning the best interests of the child. The interests of a child considered during a custody hearing are, in my view, substantially different from the interests of a child which must be considered by an immigration officer in an H & C application when the child faces a possible separation from his mother for a significant amount of time. In my opinion, it was unreasonable for Officer Zelisko to rely on a conclusion reached by the Alberta Court of Queen's Bench in the context of a custody hearing to evaluate the best interests of the child in the case at bar.
[19] However, if the custody order was to be considered as having evaluated the child's best interests, I must agree with the Applicant's contention that the fact that joint custody was granted is significant and should not have been ignored by Officer Zelisko.
[20] With regard to the fact that Officer Zelisko considered the treatment that would be available to the child in the Turks and Caicos Islands, as pointed out by the Respondent, this does not in my opinion demonstrate any consideration for the best interests of the child. There is a court order in place which prevents the Applicant from leaving Alberta with the child. Consequently, the child will not leave Alberta even if the Applicant is required to leave. For this reason, it is unnecessary to evaluate whether the treatment for the child would be better in Canada, since the child must stay in Canada.
[21] Furthermore, for the same reason, it is unreasonable of the immigration officer not to have considered the impact on the child or on the Applicant of the separation between the two, or the potential hardship that might result for the child from this separation. Since the child cannot leave Canada, the separation between the mother and the child is a very relevant issue, since it will most likely occur if the Applicant's H & C application is denied. In my view, by reason of his failure to consider the effect of the separation on the child, especially in light of the fact that the child is autistic, Officer Zelisko was not alert, alive or sensitive to the best interests of the child.
[22] It is clear, for all of these reasons, that the immigration officer failed to demonstrate attentiveness and sensitivity to the best interests of the child, and to the hardship that could result if his mother were removed from Canada. Consequently, I am of the view that the officer's decision is unreasonable.
[23] This application for judicial review will be allowed. The decision of immigration officer Zelisko will therefore be set aside and the matter shall be sent back to the Minister for redetermination by a different immigration officer.
(Sgd.) "Marc Nadon"
Judge
VANCOUVER, British Columbia
November 17, 2000.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: IMM-5420-99 |
| STYLE OF CAUSE: Valverine Olivia Cilbert |
v.
MCI
| PLACE OF HEARING: Calgary, Alberta |
| DATE OF HEARING: October 18, 2000 |
| REASONS FOR ORDER OF NADON, J. |
| DATED: November 17, 2000 |
APPEARANCES:
| Ms. Lorna K. Gadman For the Applicant |
| Mr. W. Brad Hardstaff For the Respondent |
SOLICITORS OF RECORD:
Lorna K. Gadman
Barrister and Solicitor
| Calgary, AB For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
1 Subsection 9(1) of the Act reads as follows: 9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry.