The CBSA is not legally required to delay your deportation simply because you are involved in a civil lawsuit (such as a personal injury or family law case) in Canada. To stop a Departure Order, you must apply to the Federal Court for a Judicial Stay of Removal, proving that being deported would cause you “irreparable harm” before the trial concludes.
When an individual faces a Departure Order or Deportation Order from Canada, their first instinct is often to look for any legal anchor that might keep them in the country. A common situation involves a foreign national who is simultaneously engaged in ongoing civil litigation-for instance, suing an insurance company after a severe car accident in Ontario, or fighting a complex family law battle over property in Alberta. Many assume that the Canadian justice system will automatically pause their deportation until their civil trial finishes. This is a dangerous misconception. 🔍
As of May 2026, the Canada Border Services Agency (CBSA) operates under a statutory mandate to execute removal orders “as soon as possible.” The existence of a civil lawsuit does not grant you a free pass to remain in Canada. The Federal Court has consistently ruled that civil litigation can often be managed remotely from your home country via your lawyer. To actually halt your removal, your legal team must win a highly complex injunction known as a Stay of Removal. Most applicants facing this crisis require immediate intervention from a specialized deportation defence lawyer.
Step-by-Step Process in Canada
Fighting a removal order while balancing civil litigation requires a two-pronged legal strategy. While your civil lawyer handles your lawsuit, your immigration lawyer must battle the CBSA and petition the Federal Court. 📄
Step 1: Receive the Direction to Report
The process begins when the CBSA issues you a “Direction to Report” or calls you in for a pre-removal interview. At this stage, they will confirm your flight itinerary back to your home country. You must inform the enforcement officer about your ongoing civil litigation immediately and provide court docket numbers, though the officer will likely proceed with booking your flight anyway.
Step 2: Request a Deferral of Removal from the CBSA
Before rushing to court, your immigration lawyer must formally submit a discretionary Request for Deferral of Removal to the CBSA under Section 48 of the IRPA. This is a personalized written application asking the CBSA officer to voluntarily delay your removal. Your lawyer will present evidence showing why your physical presence in Canada is absolutely critical to the civil lawsuit. It is important not to confuse this individual request with a nationwide Administrative Deferral of Removal (ADR), which is a temporary measure the CBSA implements automatically for countries experiencing wars or major environmental disasters.
Step 3: File for Leave and Judicial Review
If the CBSA refuses the deferral, your lawyer must immediately file an Application for Leave and Judicial Review at the Federal Court of Canada. You are essentially suing the CBSA, arguing that their decision to refuse the deferral despite your ongoing litigation was legally “unreasonable.”
Step 4: File an Urgent Motion for a Stay of Removal
Filing for Judicial Review does not automatically stop the plane. Your lawyer must file a separate, urgent motion for a Stay of Removal. This triggers an emergency hearing before a Federal Court judge, often just days before your scheduled flight.
Step 5: Pass the Toth Test at the Federal Court
At the emergency hearing, your lawyer must satisfy a strict three-part legal test (the Toth test):
1. Serious Issue: Is there a serious legal flaw in the CBSA’s refusal to defer?
2. Irreparable Harm: Will you suffer permanent, non-compensable harm if deported? (Note: Losing a civil lawsuit for money is rarely considered irreparable harm by judges).
3. Balance of Convenience: Does your need to stay outweigh the government’s mandate to enforce immigration laws?
How Much Does it Cost in Canada?
Attempting to stay a removal order at the Federal Court is one of the most expensive and intense procedures in Canadian immigration law. 💰
- Federal Court Filing Fees: The basic registry fee to file the motion is $50 CAD.
- Immigration Lawyer Fees: Preparing an emergency Stay of Removal motion requires days of continuous work. Legal fees typically range from $4,000 to $8,000 CAD.
- Civil Litigation Costs: You will simultaneously be paying your civil lawyer (often on contingency for injury cases, or hourly for family law, averaging $300 to $600 CAD/hour).
- Travel Costs: If you lose the stay motion, you may be required to pay for your own airline ticket home, which can cost $1,000 to $3,000 CAD.
| Legal Action | Estimated Cost (CAD) | Timeline to Act |
|---|---|---|
| CBSA Deferral Request (Lawyer Fees) | $1,000 – $2,500 (Gov. Fee: $0) | Within days of notice |
| Federal Court Stay Motion | $4,000 – $8,000 | Immediate (Emergency) |
| Court Filing Fees | $50 | At filing |
How Long Does the Process Take?
The timeline for deportation defence moves incredibly fast, in stark contrast to the painfully slow pace of civil litigation. 🕑
- CBSA Decision: The CBSA will usually respond to a deferral request within 24 to 48 hours.
- Federal Court Hearing: An emergency stay motion is typically heard by a judge 1 to 3 days before your scheduled flight.
- Civil Trial Timeline: A standard personal injury or complex civil trial in Canada takes 2 to 5 years to conclude, which is why judges are extremely reluctant to stay deportations for the entire duration of a civil suit.
Frequently Asked Questions (FAQ)
Why doesn’t a lawsuit for money stop deportation?
The Federal Court views financial lawsuits purely in terms of monetary compensation. Judges consistently rule that a foreign national can provide instructions to their Canadian civil lawyer via Zoom, email, or telephone from their home country. Therefore, deportation does not cause “irreparable harm” to the lawsuit itself.
What if my civil case involves child custody?
Family law cases involving the best interests of a Canadian child are treated much more seriously than financial lawsuits. If removing you would severely damage a child’s well-being or directly interfere with a pending provincial family court order, a Federal Court judge is far more likely to grant a Stay of Removal.
Can I come back to Canada just for the trial dates?
Once deported, you are legally barred from returning without a special document called an Authorization to Return to Canada (ARC). Obtaining an ARC just to attend a civil trial is very difficult and can take months to process, with no guarantee of approval.
Will the judge stay my removal until the whole trial is over?
Even if a stay is granted, it is almost never granted indefinitely. A Stay of Removal is typically only granted until the underlying Judicial Review application regarding the CBSA’s refusal is decided, which usually buys you 4 to 8 months, not the years required to finish a civil trial.
What happens if I just don’t show up for my flight?
Failing to appear for your removal is a serious violation of the Immigration and Refugee Protection Act (IRPA). The CBSA will issue a nationwide Canada-wide warrant for your arrest, and you will likely be detained in a provincial jail once apprehended until a new flight is arranged.
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