Navigating Deferral Requests and Stay Motions in Federal Court: Key Considerations for Facing Removal from Canada 

Navigating Deferral Requests and Stay Motions in Federal Court: Key Considerations for Facing Removal from Canada 

As immigration practitioners, we often encounter clients facing the daunting reality of an enforceable removal order. In our book, Inadmissibility and Remedies, co-authored by myself (Raj Sharma KC) and Aris Daghighian, we dedicate significant attention to the mechanisms available to challenge or delay removal, particularly through deferral requests to removals officers and, as a last resort, stay motions in the Federal Court of Canada. 

Beyond the theoretical, this firm, and in particular, Bjorn Harsanyi KC, Founding Partner, has done extensive practical work in this area. Indeed, this past year, his team led with over a dozen stay motions filed at the Court with incredible success.  

When an individual has exhausted other avenues and removal is imminent, the first step is typically a deferral request to the Canada Border Services Agency (CBSA) removals officer. If refused, this can form the basis for judicial review, paired with a motion to stay removal pending the Court’s decision. A recent Federal Court decision, Nelson v. Minister of Public Safety and Emergency Preparedness, 2025 CanLII 130169 (FC), issued just days ago on December 15, 2025, illustrates the potential for success in such motions, even under elevated scrutiny. 

The Deferral Request: Limited Discretion of Removals Officers 

Removals officers have constrained discretion to defer enforcement of a removal order. As outlined in our text, case law—particularly Williams—categorizes this discretion into three areas: 

Factors related to travel arrangements (e.g., flight cancellations or illness). 

Temporary impacts directly affected by removal (e.g., completing a school year for a child, ongoing medical treatment, or winding up a business).

Pending processes that could invalidate the removal order and involve risks like death or inhumane treatment (e.g., certain PRRA applications). 

Officers are not required to defer for pending humanitarian and compassionate (H&C) applications unless special considerations apply, as removal does not render an H&C nugatory (the applicant can return if approved). Nor does a pending spousal or common law application compel on its own delay or deferral of removal. Counsel should submit comprehensive evidence promptly—”take your best shot”—including impacts on family members or children. 

A granted deferral provides only temporary administrative relief. If refused, proceed quickly to the Federal Court. In Nelson, the applicant—a Jamaican citizen in a spousal relationship with a Canadian, co-parenting her two children (aged 8 and 18)—sought deferral based on a recent hurricane in Jamaica, a pending In-Canada Spousal Sponsorship, the short-term best interests of the 8-year-old step-child, and the impact on his spouse’s mental health. The request was refused, leading to a successful stay motion. 

The Judicial Stay: An Extraordinary Remedy 

A stay motion seeks to pause removal until resolution of an underlying application for leave and judicial review (ALJR). This is an “extraordinary” equitable remedy requiring the applicant to satisfy the tripartite Toth test on all branches: 

Serious Issue: Generally a low threshold (non-frivolous or vexatious), but higher when challenging a deferral refusal—requiring likelihood of success, as the stay effectively grants the underlying relief. In Nelson, Justice Sadrehashemi applied this elevated threshold, finding a serious issue in the officer’s unresponsive treatment of submissions and evidence regarding the hurricane’s impact. 

Irreparable Harm: Must exceed inherent deportation harms; fact-specific, credible, and non-speculative. Removal can cause irreparable harm by mooting the ALJR (remedial injustice), altering establishment in Canada, or affecting family ties. Harm to family members (e.g., separation) is considered by some judges, though others focus strictly on the applicant. The Nelson decision exemplifies this: irreparable harm was established through a combination of factors, including the spouse’s challenges in meeting the 8-year-old’s immediate needs while working full-time, lack of support or affordable care, medical evidence on mental health impacts, and post-hurricane insecurity in Jamaica. As the Court noted, irreparable harm concerns the nature of the harm, not its magnitude, citing RJR-MacDonald and related precedents. 

Balance of Convenience: Weighs public interest in enforcing valid removal orders against prejudice to the applicant. Factors like applicant misconduct (e.g., going underground), criminality, or immigration history can tip against granting. However, “clean hands” issues must relate directly to the removal process. In Nelson, despite the duty to enforce removal promptly, the balance favored the applicant given the serious issue and irreparable harm findings. 

The Court applies the test holistically: strengths in one branch may offset weaknesses in another. Practical tips from Justice Zinn (canvassed in the text; this discussion can also be found on the Federal Court website) include full disclosure of immigration history, focusing on strongest arguments, addressing balance of convenience, and providing timely notice. 

Different Thresholds and Scenarios 

Stays challenging deferral refusals face stricter scrutiny on merits. In contrast, stays tied to other decisions (e.g., PRRA refusal) have a lower “serious issue” bar. For example, in a scenario where a PRRA is refused and judicial review is pending, removal risks negating the application’s purpose. 

The Nelson case highlights how recent events—like a natural disaster—can strengthen arguments, provided evidence is robust and the officer’s response is inadequate. Outcomes remain unpredictable, varying by facts and presiding judge. The Federal Court discourages last-minute motions and may refuse to hear them without delay justification. 

Final Thoughts 

Facing removal is stressful, but options exist, as demonstrated in Nelson where a stay was granted pending judicial review of the deferral refusal. Early, robust deferral requests can avoid Court intervention. If heading to Federal Court, preparation is key: strong evidence, targeted arguments, and awareness of elevated thresholds in deferral challenges. 

At Stewart Sharma Harsanyi, we guide clients through these high-stakes processes with the insight needed for the best possible outcome. If you or someone you know faces removal, contact an experienced immigration lawyer promptly—time is critical. 

Raj Sharma KC is the founding partner of Stewart Sharma Harsanyi, a leading Canadian immigration law firm. He co-authored Inadmissibility and Remedies with Aris Daghighian.