Date: 20040114
Docket: IMM-10361-03
Citation: 2004 FC 51
Ottawa, Ontario, this 14th day of January, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MICHAEL L. PHELAN
BETWEEN:
JUAN MARIO ORELLANA HENRIQUES and
MIRIAM ERNESTINA QUINTANILLA LOPEZ and
WENDY LICET QUINTANILLA and
MARIO DE JESUS QUINTANILLA LOPEZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and
SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
PHELAN J.
UPON motion on behalf of the applicants for a stay of execution of the removal order in respect of the applicants;
AND UPON considering the affidavits and written submissions of counsel;
AND UPON hearing the oral submissions of counsel for the parties by telephone conference;
AND UPON the parties consenting to add the Solicitor General of Canada as a party;
AND UPON considering the tripartite test in Toth v. Canada (Minister of Employment and Immigration) (1988) 86 N.R. 302 (F.C.A.);
[1] I am not satisfied that the applicants have met all three elements of the Toth, supra test. I need not make any comment on the merits of the "serious issue", but even if the applicants met that element, the applicants have failed to show irreparable harm. The applicants have not provided clear and convincing evidence that they will be harmed by returning to El Salvador although it is undoubtedly a less attractive place to live in their eyes than Canada. The consequences of dislocation flow naturally from deportation; the separation of family members is a matter of choice by the parents. Since the adverse impacts on all members of the family are inherent and arise naturally from the removal order, the applicants have not established irreparable harm (see Cellis v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1231 (Pinard J.)).
[2] The motion is therefore dismissed.
[3] The Solicitor General of Canada is added as a respondent.
ORDER
[3] IT IS ORDERED that:
1. The Solicitor General of Canada is hereby added as a party respondent.
2. The motion is dismissed.
"Michael L. Phelan"
J.F.C.
Ottawa, Ontario
January 14, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10361-03
STYLE OF CAUSE: JUAN MARIO ORELLANA HENRIQUES
MIRIAM ERNESTINA QUINTANILLA LOPEZ
WENDY LICET QUINTANILLA
MARIO DE JESUS QUINTANILLA LOPEZ
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
SOLICITOR GENERAL OF CANADA
APPLICANTS' MOTION HEARD BY TELECONFERENCE IN OTTAWA
DATE OF HEARING: Tuesday, January 13, 2004
REASONS FOR ORDER AND ORDEROF PHELAN J..
DATED: Wednesday, January 14, 2004
APPEARANCES:
Gregory P. Bruce
FOR APPLICANTS
Caroline Christiaens
FOR RESPONDENT
SOLICITORS OF RECORD:
Gregory P. Bruce
Vancouver, British Columbia FOR APPLICANTS
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT