The best interests of a child (BIOC) in Canadian immigration

Nadine, a 30-year-old nurse from the Democratic Republic of Congo, found herself in a challenging situation in Canada. She had come seeking a safer life but soon realized she didn’t qualify for any immigration options. Furthermore, Nadine’s distress deepened when she considered her two young children in Congo, who faced significant hardship without her. Pondering her limited choices, she wondered if the concept of the best interests of a child (BIOC) in Canadian immigration law could offer a lifeline. Could this principle be her path to remain in Canada and provide a secure future for her children? The uncertainty weighed heavily on her.

Defining the best interests of a child?

In Canadian immigration, particularly for humanitarian and compassionate (H&C) applications, decision-makers must consider the best interests of any directly affected child. This child could be Canadian, foreign-born, or even living outside Canada. The relationship between the applicant and the child isn’t limited to parent-child; it could involve other caregivers, too. Of course, a child in this context must be less than 18 years old.

Applicants must demonstrate that the best interests of a child are central to their H&C submission. Decision-makers need to actively and sensitively assess these interests. While children’s interests are crucial, they are just one of many factors in an H&C decision. Every case’s outcome depends on its unique facts. Guidelines exist to evaluate such situations but are not exhaustive or definitive. This is because a child’s best interest can depend on many varying factors.

Where is BIOC applicable?

Generally speaking, you may present the best interest of a child whenever you are seeking relief because of humanitarian reasons. However, the Immigration and Refugee Protection Act explicitly refers to BIOC in the following circumstances.

1. A25(1) – Humanitarian and compassionate considerations — request of foreign nationals: Allows foreign nationals to request permanent residence on humanitarian and compassionate grounds, including considerations for the best interests of a child affected by their immigration status.
2. A25(1.21) – Exception to paragraph (1.2)(c): Addresses exceptions to the 12-month ban on failed refugee claimants, considering the best interests of a child affected by the decision.
3. A25.1(1) – Humanitarian and compassionate considerations — Minister’s own initiative: Permits the Minister to consider granting permanent residence on humanitarian and compassionate grounds, including the best interests of a child, without a formal application.
4. A28(2)(c) – Residency obligation: Allows for the consideration of the best interests of a child when evaluating compliance with residency obligations.
5. A60 – Detention of Minor Children: Deals with the detention of minor children, emphasizing the importance of considering their best interests in such decisions.
6. A67(1)(c) – IAD Appeal Allowed: Allows the Immigration Appeal Division (IAD) to consider the best interests of a child when deciding on appeals.
7. A68(1) – Removal order stayed: Allows for a stay on removal orders, considering factors including the best interests of affected children.
8. A69(2) – Minister’s Appeal: The Minister’s ability to appeal a decision includes the consideration of the best interests of a child as part of the assessment.

Factors officers consider in assessing the best interests of a child.

When considering the best interests of a child (BIOC) in immigration decisions, officers evaluate various factors related to a child’s welfare. These include:

• Child’s Age: Assessment of the child’s age to understand their needs and abilities.
• Dependency Level: Evaluation of the child’s dependency on the H&C applicant.
• Establishment in Canada: Considering how well the child is integrated into Canadian society.
• Links to Another Country: Evaluation of the child’s connections to the country involved in the H&C assessment.
• Country Conditions and Impact on Child: Assessment of the potential effects of the conditions in the relevant country on the child.
• Medical or Special Needs: Consideration of any health issues or special requirements the child may have.
• Education Impact: Evaluation of the effect of the decision on the child’s education.
• Gender-Related Matters: Consideration of issues related to the child’s gender.

Additionally, officers may consider whether the decision could place the child at risk, regardless of the child’s citizenship status.

Legal resources about the best interests of a child (BIOC)

Many legal resources focus on BIOC. However, I briefly explain the following six resources since IRCC has recommended these.

Baker v. MCI, [1999] 2 S.C.R. 817

This case involved Mavis Baker, a Jamaican woman living in Canada without status, who had four children in Canada. When faced with deportation, she applied for permanent residence under humanitarian and compassionate grounds. The Supreme Court of Canada reversed the lower courts’ decisions, emphasizing procedural fairness and the need to consider the human rights of Baker’s children, as outlined in the International Convention on the Rights of the Child. The Court underscored that decision-makers must consider international human rights law, especially regarding the best interests of the child.

Legault v. Canada, 2002 FCA 125

In this case, the Federal Court of Canada Trial Division deliberated on children’s best interests in the context of a humanitarian and compassionate application under the Immigration Act. It held that, following the Supreme Court’s decision in Baker v. Canada, except in exceptional cases, the best interests of the children must prevail. The Court also stated that it would be rare for an immigration officer to conclude that the children’s best interests did not require granting their parents’ exemption application.

Hawthorne v. Canada, 2002 FCA 475

In this case, the Federal Court of Appeal held that considering a child’s best interests could be satisfied by assessing the degree of hardship a child would face due to a parent’s removal from Canada. This interpretation followed the principle established in Baker v. Canada, where the best interests of the child were to be determined by considering the benefit to the child of the parent’s non-removal and the hardship the child would suffer from the parent’s removal or the child’s voluntary departure if they chose to accompany the parent abroad.

Owusu v. Canada, 2004 FCA 38

The Federal Court of Appeal addressed an important point in Owusu v. MCI. It clarified the duty of immigration officers regarding the best interests of children in H&C (Humanitarian and Compassionate) cases. This duty does not automatically apply if the children have never been to Canada and are not currently there. The case’s specifics didn’t necessitate a decision on this issue by the Court. This suggests a detailed approach to the best interests principle. The approach varies based on the children’s location and circumstances.

Kanthasamy v. Canada (Citizenship and Immigration), 2015 S.C.C. 61

This case involved a 21-year-old Tamil from Sri Lanka who applied for permanent resident status on humanitarian and compassionate grounds after being denied refugee protection. The Supreme Court of Canada considered the application under ss. 25(1) and (1.3) of the Immigration and Refugee Protection Act require consideration of the best interests of a child directly affected. The appellant’s case was based on his establishment in Canada as a teenager, his mental health conditions, and his fear of returning to Sri Lanka due to deteriorating conditions for Tamils.

Convention on the Rights of the Child, [Can. T.S. 1992 No. 3]

While not a case law, the Convention on the Rights of the Child (CRC) has been cited in Canadian courts for interpretive purposes, particularly in the child’s best interests. The CRC’s principles, particularly Article 3, which states that the child’s best interests shall be a primary consideration in all actions concerning children, have influenced Canadian jurisprudence. The CRC has been referenced in various Supreme Court of Canada decisions and has shaped the understanding and application of the child’s best interests in Canadian law.

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