Stay of Deportation

A stay is an exceptional remedy that the Federal Court can grant a person faced with removal from Canada. A stay can only be requested if there is an outstanding application for judicial review already before the Court. The reason being that, if successful, the Court grants a stay until the underlying application before the Court is resolved. To win a stay motion, one must satisfy a tri-partite test: serious issue, irreparable harm and balance of convenience. The serious issue is the issue before the Court in the judicial review proceeding; the irreparable harm is the harm faced by the applicant if she or he is returned to her/his home country. Balance of convenience usually goes the way the first two parts are decided.

A typical scenario for a motion for a stay is this: someone has a removal date but wants to remain in Canada until the end of June so that their child can finish school. They send in a request to defer the removal until the end of June. For whatever reason, the request is refused by the removals officer. The person then files an application for leave and for judicial review of the officer's refusal to defer removal, and at the same time brings a motion before the Court for a stay of deportation.

Stays are probably the most legally complex, time consuming and costly applications a lawyer is asked to do. It cannot be done without a lawyer and is usually done at the last minute. It involves a huge amount of work in a short time period and the stakes are very high since deportation is on the line. If you think that you might want to stay here longer than the date given to you by the removals officer, you should contact a lawyer immediately since time is of the essence. Preferably, you should contact a lawyer as soon as you receive your removal letter so that a request for a deferral can be made on your behalf. That usually lays out the ground work for an eventual stay.