Federal Court Grants Stay of Removal for Family Pending Judicial Review

Date: 20260227 Dockets: IMM-14830-25 IMM-3502-26 Citation: 2026 FC 276 Toronto, Ontario, February 27, 2026 PRESENT: Mr. Justice Brouwer Docket: IMM-14830-25 BETWEEN: [NAME] Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent AND BETWEEN: Docket: IMM-3502-26 [NAME] Applicants and THE MINISTER OF [NAME] Respondent

ORDER AND

REASONS [ 1 ] The Applicants seek a stay of their removal from Canada on March 3, 2026. As set out below, their motion will be granted. [ 2 ] The Applicants are three members of a four-member family. The two adult Applicants and their [NAME] are citizens of Mexico who entered Canada in 2018 and unsuccessfully sought refugee protection; the youngest family member is six years old and was born here. The Applicants have been directed to report to Toronto Pearson International Airport on March 3, 2026, to be deported to Mexico. Although as a Canadian citizen the six [NAME] old has a constitutionally-protected right (section 6(1) of the Canadian Charter of Rights and Freedoms , Part 1 of the Constitution Act , 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11) to remain in this country, the reality is that if the Canada Border Services Agency (CBSA) proceeds with the removal of his parents and brother, he will have to leave with them. [ 3 ] On February 18, 2026, the Applicants filed a motion in this Court seeking an order staying their removal to Mexico pending the determination of two outstanding applications for leave and judicial review. The first of these underlying applications, Court File IMM-14830-25, challenges the November 11, 2024, decision of a Senior Immigration Officer [Officer] denying the Applicants’ application for permanent residence on humanitarian and compassionate grounds [ “[NAME]” ] pursuant to section 25(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 [IRPA]. The second application, Court file IMM-3502-26, challenges the decision of an Inland Enforcement Officer [Enforcement Officer] refusing the Applicants’ request to defer their removal until the end of the minor Applicant’s school [NAME] [ “Deferral” ]. [ 4 ] To obtain a stay of removal, the Applicants are required to meet the well-known three-part test for injunctive relief, namely: (1) that the underlying application for judicial review raises a “serious question to be tried;” (2) that they will suffer irreparable harm if the stay is refused; and (3) that the balance of convenience favours granting a stay ( Toth v Canada (Employment and Immigration)  (1988), 1988 CanLII 1420 (FCA) [ Toth ]; R v [NAME] , 2018 SCC 5   at para 12 [ [NAME] ]; Manitoba (Attorney General) v [COMPANY] , 1987 CanLII 79 (SCC) [ Metropolitan Stores ]; [COMPANY] v Canada (Attorney General) , 1994 CanLII 117 (SCC), [1994] 1 SCR 311 at 334 [ [NAME] ]). [ 5 ] While the threshold for establishing a “serious issue” under the first branch of the test is generally a low one, requiring only that a moving party raise a question that is neither frivolous nor vexatious, in circumstances where an injunction effectively gives the moving party the relief they are seeking in their underlying application the threshold is elevated and requires the applicant to show “quite a strong case” ( [NAME] v Canada (Minister of [NAME]) , 2009 FCA 81 at paras 66-67 [ [NAME] ]). In this motion, both thresholds are in play: the usual “neither frivolous nor vexatious” standard applies to the [NAME] decision ( [NAME] at para 337; [NAME] v Canada (Minister of Foreign Affairs) , 1998 CanLII 8411 (FC) at para 4), while the elevated “quite a strong case” standard applies to the Deferral decision ( [NAME] at para 51). [ 6 ] While each prong of the three-part test must be met in each case, “they are not discrete, watertight compartments.” Rather, the test is applied in a holistic fashion where strengths with respect to one factor may overcome weaknesses with respect to another ( [NAME] at para 339; [NAME] v Canada (Citizenship and Immigration), 2025 FC 1280 at para 9, [NAME] v Canada (Attorney General), 2021 FC 361 at para 51; British Columbia (Attorney General) v Alberta (Attorney General), 2019 FC 1195 at para 97 (rev’d on other grounds 2021 FCA 84); Power Workers Union v Canada (Attorney General), 2022 FC 73 at para 56). [ 7 ] In the end, decisions to grant or refuse interlocutory relief are discretionary and must be made having regard to all the relevant circumstances ([NAME] at para 27). As the Supreme Court of Canada explained in [COMPANY] v [COMPANY] , 2017 SCC 34 at paragraph 25: “The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. This will necessarily be context-specific.” [ 8 ] The issues to be resolved on this motion are: Whether the Applicants have raised a serious issue regarding the [NAME] decision (IMM-14830-25); Whether the Applicants have raised a serious issue on the elevated threshold regarding the Deferral decision (IMM-3502-26); Whether, if a stay is denied, the Applicants will suffer irreparable harm; and Where the balance of convenience lies. [ 9 ] In addition, the Respondents raise a preliminary challenge to the timeliness of the Applicants’ originating application for leave and for judicial review of the [NAME] decision (IMM-14830-25). A. Timeliness of the [NAME] JR [ 10 ] Section 72 (2)(b) of the IRPA requires that an applicant serve and file their application for leave for judicial review of a matter arising in Canada “within 15 days… after the day on which the applicant is notified of or otherwise becomes aware of the matter.” [ 11 ] The decision refusing the Applicants’ [NAME] application was rendered on November 12, 2024, but the unimpugned evidence is that while a copy of the decision was likely sent to their previous lawyer and to their previous address, it was not received by them until June 2025. They only learned that a decision had been rendered after emailing Immigration, Refugees and Citizenship Canada [IRCC] on June 5, 2025, and the substance of the decision was not discovered until a week later, when they received a copy of the decision from IRCC on June 12, 2025. The Applicants assert on this basis that they were within time when they filed their application for leave and judicial review 15 days later, on June 27, 2025. [ 12 ] The Respondents argue, based on well established caselaw, that “the knowledge of the solicitor is knowledge of the client and it can be presumed and relied upon that a lawyer will properly advise their client of such knowledge.” Since the Applicants have conceded that the decision was likely sent to their previous lawyer on or soon after November 12, 2024, the deadline for filing would therefore have fallen around the end of that month. The Respondents argue that the Applicants therefore filed late and that unless they obtain an extension of time for that late-filed application, their related motion cannot be entertained. [ 13 ] While I acknowledge the general proposition on which the Respondents rely, the evidence of the Applicants establishes that the lawyer who assisted them to file their [NAME] application had left the firm and had not retained carriage of their matter. The Applicants learned this after seeking out an update on the processing of their application in May 2024, i.e. before a decision had been rendered. This lawyer referred the Applicants to a different lawyer at his old firm who he said had taken over their case. However, when the Applicants attempted to contact that lawyer, they discovered that she too had left the firm. They were directed to contact the firm’s reception, but they did not receive a reply. All of this took place before the [NAME] decision had been rendered. After months of waiting for a response from the firm, the Applicants finally sought out the assistance of a community agency, and it was with that agency’s help that they reached out to IRCC directly and learned that a decision had been made in their case. [ 14 ] In these circumstances, I am prepared to accept for the purpose of calculating timelines that the Applicants were not notified and did not become aware of the decision until June 12, 2025, and that this delayed notice was through no fault of their own and is not rebutted by any presumption of notice to their former counsel. Their application was, therefore, filed in accordance with the timelines established by s. 72(2)(b) of the IRPA. [ 15 ] If I am wrong, however, I also find based on these circumstances that an extension of time would be justified in any event pursuant to my consideration of the factors set out in Canada (Attorney General) v [NAME] , 1999 CanLII 8190 (FCA) [ [NAME] ] and the paramount consideration that justice must be done ( [NAME] v M.E.I. , 1985 CanLII 5550 (FCA)). As noted below, the matter has merit; further, the Applicants have demonstrated a continuing intention to pursue their application and have provided a reasonable explanation for the delay. Prejudice to the Respondents has also not been established. B. There is a serious issue regarding the [NAME] decision (IMM-14830-25) [ 16 ] The Applicants have raised several issues regarding the [NAME] decision, particularly regarding the Officer’s assessment of the best interests of the child. The Respondents concede that the Applicants have met the low threshold for serious issue in respect of their challenge to the [NAME] decision, and I agree. C. There is a serious issue regarding the Deferral decision (IMM-3502-26) [ 17 ] The Applicants have raised a serious issue on the elevated threshold regarding the Enforcement Officer’s decision refusing to defer the family’s removal by approximately four months until the end of the school [NAME]. [ 18 ] Binding appellate jurisprudence establishes that permitting children to finish their school [NAME] before being deported is a valid basis upon which to defer removal ( [NAME] v Canada ([NAME]), 2017 FCA 130 at para 83; [NAME] at para 51). Although the Respondents rely on [NAME] v Canada ([NAME]), 2024 FC 1846 at para 33-34, and [NAME] v Canada ([NAME]), 2023 CanLII 51300 (FC), to argue that this ground is only available “in ‘narrow circumstances’ when the school [NAME] is about to end, the person is in their graduating [NAME] or if they require special accommodation not available in their country of removal,” I find no basis in the binding jurisprudence or in the principles relating to the assessment of the best interests of the child that would justify narrowing the circumstances in this way. In any event, in the case at bar the older of the two affected children is in fact four months away from graduating from middle school. [ 19 ] The Enforcement Officer did not acknowledge this established basis upon which they might grant the deferral requested. Instead, the Enforcement Officer determined that there was no evidence that the children could not enter the Mexican school system or that they would fall behind or lose an academic [NAME] because “Elementary school are not pass fail grades [sic]” . Not only was there no evidence before the Enforcement Officer upon which they could make such a finding about schooling in Mexico, their analysis also fails entirely to address the issue they were required to address: whether proceeding with the removal now rather than four months from now is in the children’s short term best interests, and if not, whether that is a sufficient basis upon which to defer their removal ( [NAME] v Canada (Minister of Citizenship and Immigration) (F.C.), 2005 FC 1180 at para 40; [NAME] v Canada ([NAME]), 2008 FC 420 at para 28 [ [NAME] ]). Although the Officer asserted “I am alert and alive to the children’s best interests,” their reasoning demonstrates the opposite to be true. The unreasonableness of the Officer’s assessment is a serious issue that meets the elevated threshold and that is likely to succeed. D. Irreparable harm is established [ 20 ] Having found that the Applicants have raised serious issues regarding the assessment of the best interests of the children in both the [NAME] decision and in the Deferral decision, I find that irreparable harm is also made out. As Justice Michel Shore found in [NAME] : [41] Where the law requires that an official give careful consideration to a child’s best interests, failing to do so constitutes   irreparable harm to the child in question. ( [NAME] v. Canada (Minister of Citizenship and Immigration) (2000), 2000 CanLII 15140 (FC) , 188 F.T.R. 39, [2000] F.C.J. No. 403 (QL), para. 22 ; [NAME] v. Canada (Minister of Citizenship and Immigration) , 2003 FC 1349 , [2003] F.C.J. No. 1715 (QL); [NAME] v. Canada (Minister of Citizenship and Immigration) , 2004 FC 67 , [2004] F.C.J. No. 51 (QL); [NAME] v. Canada (Minister of Citizenship and Immigration) , 2003 FC 905 , [2003] F.C.J. No. 1152 (QL).) [ 21 ] [ADDRESS] has, moreover, repeatedly confirmed that the interruption of a child’s school [NAME] constitutes irreparable harm ( [NAME] v Canada (Citizenship and Immigration) , 2026 CanLII 2323 (FC); [NAME] v Canada ([NAME]) , 2018 FC 375 at paras 19-21; [NAME] v Canada ([NAME]) , 2018 FC 1301 at para 27; [NAME] v Canada ([NAME]) , 2018 FC 1303 at paras 29-30). E. Balance of convenience [ 22 ] The adult Applicants failed previously to report for removal. The Respondents assert that this fact, viewed through the lens of the public interest in having the enforcement provisions of the IRPA executed, tips the balance in favour of dismissing the stays. I disagree. While these are certainly important considerations, they do not outweigh the best interests of the children affected by the scheduled removal, who clearly bear no responsibility for their parents’ previous failure to report, nor do the considerations raised by the Respondents outweigh the importance of ensuring the availability of effective remedies on judicial review, which would be diminished or wholly nullified should the stay be dismissed. In comparison, the Respondents’ interest in proceeding with removal is merely delayed, not frustrated by a stay of removal. The balance of convenience weighs in favour of the Applicants ( [NAME] v Canada ([NAME]) , 2009 FC 473 at para 31; [NAME] v Canada (Citizenship and Immigration), 2022 FC 765 at para 29). F. Conclusion [ 23 ] For all of these reasons, I find that it is just and equitable to grant an Order staying the Applicants’ removal from Canada until both of their underlying applications for leave and, if leave is granted, their applications for judicial review have been finally determined.

ORDER in IMM-14830-25 and IMM-3502-26 THIS COURT ORDERS that : The motion is granted. The Applicants’ removal from Canada is stayed. In matter IMM-14830-25, the Applicants shall not be removed from Canada pending the determination of their application for leave and, if leave is granted, their application for judicial review of the decision refusing their application for permanent residence. In matter IMM-3502-26, the Applicants shall not be removed from Canada pending the determination of their application for leave and, if leave is granted, their application for judicial review of the decision refusing to defer their removal. A copy of this Order and Reasons shall be placed in Court File Nos IMM-14830-25 and IMM-3502-26. "Andrew J. Brouwer" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-14830-25 STYLE OF CAUSE: [NAME] v THE MINISTER OF CITIZENSHIP AND IMMIGRATION DOCKET: IMM-3502-26 STYLE OF CAUSE: [NAME] v THE MINISTER OF [NAME] OF HEARING: VIDEOCONFERENCE DATE OF HEARING: FEBRUARY 24, 2026

ORDER AND

REASONS: BROUWER J. DATED: FEBRUARY 27, 2026 APPEARANCES: [NAME] For The Respondents SOLICITORS OF RECORD: [NAME] of Canada Toronto, Ontario For The Respondents