“Every child is a dependent but not every dependent is a child”.
Individuals who apply for Canadian permanent residency can request that visa officers consider humanitarian & compassionate factors to exempt them from general immigration requirements. Such factors can include the best interests of children. Pursuant to Canada’s Federal Court of Appeal in Hawthorne v. Canada (Minister of Citizenship and Immigration) 2002 FCA 475), the best interests of the child in a humanitarian & compassionate consideration context involves, for example, an assessment of the benefits a child would receive if a parent was not removed from Canada, in conjunction with an assessment of the difficulties 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.
The issue of whether the best interests of a child extends to adult dependents is somewhat unresolved. Some decisions stated that the determining factor was whether an adult child was dependent on his or her parents. In Naredo v. Canada (Minister of Citizenship and Immigration), a 20-year old was determined to be a child under Canada’s 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.
However, in Saporsantos Leobrera v. Canada (Citizenship and Immigration) 2010 FC 587)(“Saporsantos“) Justice Shore systemically and thoroughly criticized the principle that dependency determines whether one is a child, and reached the opposite conclusion.
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 then defined “Dependent Child” as follows (emphasis added):
“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.
Justice Shore, however, noted that section 2 of the Regulations began with the statement that:
2. The definitions in this section apply in these Regulations.
He accordingly concluded that the IRPA and its Regulations are two different pieces of legislation and that the definition of “dependent child” in the Regulations did 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 using the definition of “dependent child” to interpret the meaning of “child” is contrary to the presumption of consistent expression. 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.
Justice Shore 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, Justice Shore determined that adult dependents are not entitled to best interests of the child consideration, a principle which has since been upheld in numerous Federal Court of Canada and Immigration and Refugee Board decisions. For example, in Dugly Medina Moya v. The Minister of Citizenship and Immigration, 2012 FC 971, Justice Hughes agreed with and re-printed much of the judgement in Saporsantos , writing that:
The courts have a specific role to play in the Canadian system of constitutional supremacy. Acknowledging the roles of the executive branch, the legislative branch and recognizing the judiciary’s role as one of interpretation of the law. It is, thus, incumbent on the Federal Court to follow the interpretation of the legislation in jurisprudence issued by the Federal Court of Appeal and the Supreme Court.
It is the Court’s conclusion that the definition of “dependent child” is not determinative of whether a person is deserving of a best interests of the child analysis. The Court finds, based on the entirety of section 2 of the IRPR, that the definition of “dependent child” was not intended to apply to the IRPA.
As has been shown, the definition of “child” is undefined in the IRPA and the jurisprudence makes it clear that the best interests of the child analysis has a special relationship with the Convention on the Rights of the Child. Therefore, the Court is of the opinion, based on the above reasoning, that the importance that the Convention on the Rights of the Child has been unduly minimized by the earlier jurisprudence on this matter.
Although the Court is sympathetic to the position of the Applicant, as the policy behind analyzing the best interests of the child is, as recognized by the Convention on the Rights of the Child, partially based on the physical and mental vulnerabilities of children; and it also recognizes that persons with disabilities may also be vulnerable, to varying degrees, the Court cannot agree that dependency and vulnerability are the defining characteristics of “childhood” for the purposes of section 25. The Court consequently finds that dependent adults should not be included in the analysis of the best interests of the child.
The Convention on the Rights of the Child, Article 1, states:
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 earlier attained.
Implications
As such, practitioners should note that disabled adult clients are not entitled to a best interests of the child analysis for H&C purposes.
Nonetheless, common sense indicates 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. Accordingly, while the best interests of the child analysis does not apply, applicants should continue to stress what the interests of their adult dependent children are.