Disabled Adults and the Best Interests of the Child Analysis

“Every child is a dependent but not every dependent is a child”.

Saporsantos Leobrera v. Canada (Citizenship and Immigration), 2010 FC 587 (“Saporsantos“) is a recent case of the Federal Court (the “Court“) involving a detailed analysis of whether a disabled, dependent adult is a child for the purposes of the “best interests of the child” analysis in Humanitarian & Compassionate (“H&C“) applications.

Pursuant to the Federal Court of Appeal in Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, the best interests of the child in an H&C context involves an assessment of the benefits a child would receive if his parent was not removed, in conjunction with an assessment of the hardship the child would face if the parent was removed and the child remained in Canada, or if the child was to return to the parent’s country of origin with the parent.

Previous Federal Court decisions suggested that whether or not someone was a child entitled to a best interests of the child analysis depended on whether or not that person was dependent on his/her parent(s). In Naredo v. Canada (Minister of Citizenship and Immigration) (2000), 192 D.L.R. (4th) 373, a 20-year old was determined to be a child under the Immigration and Refugee Protection Act (“IRPA“) because he was dependent on his parents. In Ramsawak v. Canada (Minister of Citizenship and Immigration), 2009 FC 636, meanwhile, the Federal Court explicitly stated that the “mere fact a ‘child’ is over 18 should not automatically relieve an officer from considering his or her ‘best interests'”, and that the dependency of the individual on his/her parents is what matters.

In Saporsantos, however, Justice Shore systemically and thoroughly criticized the principle that dependency determines whether one is a child.

An Overview of the Decision

The applicant in Saporsantos argued that the definition of “dependent child” in section 2 of the Immigration and Refugee Protection Regulations (the “Regulations“) determined whether a person was entitled to a best interests of the child analysis.  Section 2 of the Regulations defines “Dependent Child” as:

“dependent child”, in respect of a parent, means a child who

(a) has one of the following relationships with the parent, namely,

(i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or

(ii) is the adopted child of the parent; and

(b) is in one of the following situations of dependency, namely,

(i) is less than 22 years of age and not a spouse or common-law partner,

(ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student

(A) continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and

(B) actively pursuing a course of academic, professional or vocational training on a full-time basis, or

(iii) is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition.

The Court, however, noted that section 2 of the Regulations began with the statement that:

2. The definitions in this section apply in these Regulations.

The Court accordingly concluded that the IRPA and its Regulations are two different pieces of legislation.  Thus, the definition of “dependent child” in the Regulationsdoes not determine what a child for H&C consideration in IRPA.

After concluding that s. 2 of the Regulations did not determine the issue, Justice Shore noted that the using the definition of “dependent child” to interpret the meaning of  “child” is contrary to the presumption of consistent expression. As noted in Sullivan on the Construction of Statutes (5th edition, 2008), the presumption of consistent expression states that:

It is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings. Another way of understanding this presumption is to say that the legislature is presumed to avoid stylistic variation.  Once a particular way of expressing a meaning has been adopted, it makes sense to infer that where a different form of expression is used, a different meaning is intended. (Sullivan at pp. 214-215).

The concluded that the appropriate reference to determine the meaning of “child” was not IRPA’s Regulations, but rather the United Nations Convention on the Rights of the Child (the “Convention).  The Court noted that while the Convention has not been enacted into Canadian law, the jurisprudence is clear that IRPA must be interpreted in accordance with international treaties, that the values reflected in such treaties may help inform Canadian statutory interpretation, and that the importance of the Convention has been specifically stressed in Canadian immigration jurisprudence.

The Convention defines a child as:

Article 1

For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Accordingly, practitioners should note that disabled adult clients no longer appear to be entitled to a best interests of the child analysis for H&C purposes.

The June 2010 RIMBits issued the following alert about the decision:

Definition of child for best interest of the child assessments

Q. The applicant is a mentally challenged who is cared for by her grandparents. The applicant’s mother is a Canadian citizen, having gained permanent residence through the Skilled Worker program. She is barred from sponsoring her daughter under the Family Class due to paragraph 117{9)(d) of the Regulations as she did not declare her during the initial immigration process. The applicant filed a permanent residence application (FC3) seeking the waiver of the ss. 117(9 )(d) exclusion on H&C grounds. Did the officer err by failing to make a proper determination of the best interest of the child directly affected by the decision, the applicant herself, in accordance with section 25 of IRPA?

A. (Result of judicial review) The fact that the applicant may fit the definition of a “dependent child” pursuant to section 2 of IRPR is not determinative of whether she is a “child” for the purposes of an H&C application. “Dependent child” as defined in R2 deals is not congruent with the term “child” referred to in A25(1). Justice Shore also found that binding international instruments play a special role in the interpretation of IRPA. The duty to conduct a BIOC assessment is intimately linked to the Convention on the Rights of the Child which defines a child as a person under the age of eighteen. Therefore, it would be inconsistent to give the term “child” under IRPA a different meaning. The Court found that the applicant’s developmental delay does not entitle her to a BIOC assessment. The Convention on the Rights of Persons with Disabilities treats children and adults with disabilities differently and only requires a BIOC assessment for children with disabilities. Therefore, best interest of the child determinations should not be made for dependent adults.

Nonetheless, common sense would indicate that the impact that a guardian’s separation would have on a disabled adult would still be a significant factor in determining whether there are sufficient H&C grounds to qualify for an H&C exemption.