Stay Motions

If you get a removal order to leave Canada, you may need a stay motion. A stay is an exceptional remedy that allows a temporary postponement of your removal. A stay does not allow you to stay in Canada permanently.

If you have received a date by which you have to leave Canada, you can hire an immigration lawyer to file a motion to stay the removal. Only lawyers are allowed to appear before the Federal Court.

However, you can only apply for a stay of removal if there is already an outstanding application for judicial review before the Court. If the Court allows the motion, a stay order is in place until the underlying application for judicial review has been decided.

Stay motions are required in a couple of different scenarios. For example, a person’s refugee claim has been denied. If they are from a Designated Country of Origin, they are not entitled to an automatic stay of removal while their refugee decision is under review by the Federal Court. In such a case, a lawyer may file a motion for a stay of removal until the application for leave and judicial review of the refused refugee claim has been decided.

Another example is a situation where the Applicant has a removal date, but has an important medical appointment a few weeks after the scheduled removal date. The Applicant has sent in a request to CBSA to defer the removal until after the medical appointment. If CBSA refuses the request, the person can then file an application for leave and judicial review of the Officer’s refusal, and based on this judicial review, the Applicant can also bring a motion before the Court for a stay of deportation.

In order to win a stay motion, the person applying for the stay, known as the Applicant, has to prove three things:

• That there is a serious issue before the Court in the judicial review application
• That the Applicant will face irreparable if she or he is returned to his/her home country.
• That the balance of convenience favours the Applicant. Usually the balance of convenience is determined in the same way as the first two parts.

Stay motions are held before a Federal Court judge usually a few days before the removal date. The process is adversarial which means that the court will listen to arguments made by the Applicant’s lawyer as well the lawyer representing Citizenship and Immigration Canada. Your lawyer will argue the reasons and present evidence as to why you should be allowed to stay in Canada, while the government’s lawyer will argue the reasons why you should be removed from Canada.

If the Federal Court judge allows the motion, your removal from Canada will be temporarily cancelled until there is a decision on the underlying application for judicial review. However, if the Federal Court dismisses the decision, you must show up at the airport for your scheduled flight back to your home country. If you fail to show up for your removal, a Canada wide warrant for your arrest will be issued and enforced.