Federal Court Decisions

    

     Date: 20001219

     Docket No.: IMM-6377-00

OTTAWA, ONTARIO, THIS 19^th DAY OF DECEMBER, 2000

PRESENT:      THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

     MEHDI ZARGARI

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER AND ORDER

     (Delivered orally from the Bench on December 15, 2000)

    

[1]      The motion before the Court is recognized to be a motion for the extraordinary remedy of a stay.

[2]      The appropriate test to be applied in dealing with motions for a stay such as the matter before this Court is well established in the Toth¹ decision.

[3]      I will therefore apply the tripartite test in Toth to the present case. Based on the facts before me I find that there may well be a serious issue to be determined but fail to find irreparable harm.

[4]      I have evidence before me that the applicant, step-father, married on September 9, 2000 and that the applicant and his wife resided together with her three children since November 1^st, 2000.

[5]      The evidence also supports that the applicant knew his wife since October 20, 1998. I also note that the applicant is not the natural father of the children.

[6]      I fully appreciate and recognize that separation is undoubtedly disruptive and difficult for the family. However the applicant has only been married to his wife for some 3 months; and the applicant's new family has certainly been aware of his possible removal from Canada since they met.

[7]      I have considered the best interest of the children in assessing all of the evidence before me and I fail to find irreparable harm.²

[8]      I therefore find that the applicant has failed to meet the second part of the tripartite test set out in Toth.

[9]      Finally, I urge the department of immigration to promptly deal with the spousal sponsorship application.

[10]      For these reasons this application for stay is dismissed.

    

     ORDER

     The application for stay is dismissed.

    

     Judge

__________________

¹      Toth v. Canada (1988) 86 N.R. 302, [1988] F.C.J. No. 587.

²      Hussey v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1279.