1 What Is a Stay Motion?
A stay motion is a crucial legal remedy that allows individuals facing deportation from Canada to request the Federal Court to delay the enforcement of a removal order. Commonly filed alongside a judicial review, a motion for a stay can provide temporary relief while the court evaluates the merits of your immigration appeal.
This process is especially vital if you believe the decision against you is legally flawed, procedurally unfair, or based on incomplete information. Filing a motion to stay pending appeal is a separate legal process that requires compelling legal arguments, strong evidence, and swift action.
It is not granted automatically, so skilled legal representation is essential. At Affinity Law, our immigration lawyers in Toronto prepare comprehensive applications that clearly outline the reasons for your stay, ensuring your rights are protected while the court reviews your case.
2 Types of Removal Orders in Canada
Understanding the type of removal order issued is essential, as it determines the urgency and type of legal action you must take.
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Departure Order
A Departure Order requires you to leave Canada within 30 days. You must confirm your departure with the CBSA. Failure to do so will result in the order becoming a deportation order.
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Exclusion Order
An exclusion order bars you from re-entering Canada for one to five years, depending on the grounds (e.g., misrepresentation).
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Deportation Order
A deportation order results in permanent removal from Canada. Returning in the future requires an Authorization to Return to Canada (ARC).
Regardless of the type of order, a motion to stay pending appeal can halt enforcement temporarily, giving you time to pursue legal remedies.
3 When Do You Need a Motion for a Stay?
A motion for a stay is typically required in the following situations:
- You’ve filed a judicial review application to challenge a refused refugee or H&C application.
- Your removal date is imminent, but you have unresolved legal matters (e.g., a pending spousal sponsorship).
- You have medical appointments or humanitarian reasons requiring a delay in removal.
- Your deferral request to CBSA has been refused.
A stay motion is often the only option to remain in Canada legally while the court reviews your case.
Contact us at [email protected] or call 647-496-1895 for a FREE case assessment and consultation.
4 The Legal Test for a Stay Motion
The Federal Court evaluates a motion for a stay based on the three-part test from the Supreme Court’s RJR-MacDonald framework:
- Serious Issue: You must demonstrate a genuine and non-frivolous legal issue in your case.
- Irreparable Harm: You must show that you would suffer harm that cannot be undone, such as trauma, risk to life, family separation, or medical harm if removed.
- Balance of Convenience: The court assesses which party will suffer greater harm, the individual or the government, depending on whether the stay is granted or denied.
Our lawyers at Affinity Law will build strong arguments on each of these points to increase the success rate of your motion to stay pending appeal.
5 Why File a Motion to Stay Pending Appeal?
Filing a motion to stay pending appeal is a strategic legal step that provides the following advantages:
- Prevents deportation while your appeal is reviewed
- Provides time to gather evidence and legal arguments
- Gives access to continued healthcare, employment, and schooling (especially critical for families with children)
6 Common Grounds for a Motion for a Stay
- Child custody or schooling needs
- Pending permanent residency or sponsorship
- Victim of abuse or at risk of persecution
- Medical treatments are not available in the home country
- Community ties, employment, or long-term residency in Canada
In all these cases, a motion to stay pending appeal can provide the legal protection necessary to avoid premature removal.
7 Procedural and Humanitarian Deferrals
Even before filing a stay motion, individuals may request a deferral from CBSA. If refused, a judicial review can be filed, and then a motion for a stay is brought forward.
- Administrative Deferral of Removals (ADR): Temporary delays to certain countries due to humanitarian crises.
- Temporary Suspension of Removals (TSR): Applied to countries facing conflict or natural disasters. Neither ADR nor TSR guarantees safety. A motion to stay pending appeal may still be necessary.
8 Best Interests of the Child
Federal Court jurisprudence emphasizes considering the best interests of any children involved in stay motion applications. If your children are Canadian citizens or permanent residents, their education, healthcare, and emotional well-being can be decisive factors in a motion for a stay.
9 Importance of Legal Representation
Stay motions are complex legal procedures that require speed, accuracy, and persuasive argumentation. Having an experienced lawyer ensures:
- Compliance with strict deadlines
- Strong legal arguments and case law
- Coordination with expert witnesses (medical, psychological)
- Representation before the Federal Court
Affinity Law’s immigration lawyers have a strong track record of successful motions to stay pending appeal outcomes.
Contact us at [email protected] or call 647-496-1895 for a FREE case assessment and consultation.
10 Why Choose Affinity Law
Choosing the right legal team can make all the difference when facing the possibility of removal from Canada. At Affinity Law, we combine legal precision with compassion to deliver outstanding results in immigration matters.
Proven success in stay-motion applications: Our immigration lawyers have a strong track record of securing stays of removal through well-prepared and persuasive motions.
Deep knowledge of immigration law and Federal Court procedures: We understand the intricacies of federal court rules and how to navigate complex immigration legislation to your advantage.
Personalized support for complex and urgent cases: Every case is unique. We provide responsive, customized legal strategies for time-sensitive and high-stakes immigration challenges.
Multilingual services and culturally sensitive representation: Our team serves clients in multiple languages and offers respectful, inclusive support that reflects your cultural background and personal experience.
Let Affinity Law guide you through your motion to stay pending appeal with clarity, urgency, and unwavering commitment.
11 How Affinity Law Can Help You
Our expert legal team will help you:
- Review your removal order and immigration history
- File the judicial review application
- Draft and submit your motion to stay pending appeal
- Argue your case in the Federal Court
We tailor our approach to each client’s unique needs and ensure no detail is overlooked.
12 Contact Affinity Law Today
Time is critical in removal cases. Contact Affinity Law immediately if you or a loved one has received a removal order. We are ready to assess your eligibility for a motion for a stay or motion to stay pending appeal and take action without delay.
Contact us at [email protected] or call 647-496-1895 for a FREE case assessment and consultation.
