Last updated on April 23rd, 2020

Last Updated on April 23, 2020 by Steven Meurrens

A “dependent child” is defined in the Immigration and Refugee Protection Regulations, SOR/2002-227 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 is not a spouse or common-law partner, or

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

In setting 22 as the limit, the Government of Canada stated that its rationale was:

The Government of Canada has established as a priority for the immigration program the goal of family reunification, which is about giving family members the opportunity to live with or near each other, instead of being separated by borders and long distances. It is recognized that many young adults remain with their parents for a longer period of time. Given the importance placed on education, it is not unusual for some children to remain with their nuclear family while pursuing higher education before entering the labour market. The current definition of “dependent child” in the Immigration and Refugee Protection Regulations (the Regulations) is limited to persons less than 19 years of age and is therefore too restrictive (p. 3265).

When families are able to remain together as an economic household unit, their integration into Canada and their ability to work and contribute to their communities all improve. The proposed increase of the maximum age of dependent children is consistent with the underlying socio-economic trend that children remain at home longer with their parents, particularly those studying for lengthier periods.

. . . .

Whether studying or not, many young adults in Canada and other countries live with their parents.

. . . .

An increase to the upper age limit of the “dependent child” definition would therefore more closely align Canada’s immigration programs with the Canadian and international experience. Notably, the proposed higher age limit would enable many post-secondary students — who complete a degree at a median age of 24.8 years of age [footnote omitted] — to be eligible as dependent children through much of their undergraduate studies. These young adults would be unlikely to be eligible for permanent resident status as principal applicants under an economic immigration program, until they have completed post-secondary education and gained significant work experience.

In Hamid v. Canada (Minister of Citizenship and Immigration), [2007] 2 FCR 152, 2006 FCA 217, the Federal Court of Appeal stated:

A child of a federal skilled worker who has applied for a visa, who was 22 years of age or over, and who was considered dependent on the skilled worker at the date of application by virtue of his or her financial dependence and full‑time study, but who does not meet the requirements of a “dependent child” within the meaning of subparagraph 2(b)(ii) of theImmigration and Refugee Protection Regulations, SOR/2002‑227, when the visa application is determined, cannot be included as part of his or her parent’s application for permanent residence in Canada.

In Anata v. Canada,2017 FC 665 the Federal Court affirmed that there is nothing in the jurisprudence, legislation or guidelines relevant to a live-in caregiver application to suggest that “dependent child” in the caregiver, context should have a different meaning, or should be assessed at the time the application is submitted, and should not take into account what happens between the time of the application and the time of the decision.

However, in Reducto v. Canada (Citizenship and Immigration), 2020 FC 511, Justice Norris stated that while the definition of dependent child cannot vary according to application type, the degree to which someone exceeds the age of dependency is relevant when assessing humanitarian & compassionate factors.  He wrote:

I do not necessarily agree with the suggestion implicit in the applicant’s argument based on disproportionality that proximity to a cut-off alone should make it easier to justify an exception. When section 25(1) of the IRPA is invoked, the onus is on an applicant to show why an exception is warranted. This depends on all of the circumstances of the case, not simply the degree to which one falls outside a legally defined category. Someone could be just above the maximum age for being a dependent child yet have established a fully independent life.

That being said, it may be arguable in a case that is close to the line that the objectives that are served by having the line where it is would not be affected adversely if an exception were made or, at least, that they would be limited less than in a case that falls farther from the line. Whenever an age-based class is created, a line must be drawn. The closer one gets to that line, the more arbitrary it might seem to be excluded from the class it defines and the more warranted an exception might also seem to be. Thus, while not determinative, proximity to the line can be a relevant consideration.

Canada has made the policy determination that children younger than 22 years of age will be considered dependents and (with certain exceptions) anyone older than this will not be. This rule strikes a balance between two objectives: preserving the unity of family groups (with all the benefits this entails) while filtering out those who ought to seek status in Canada on their own merits (cf. the rationales for the definition of “dependent child” discussed in the 2014 and 2016 Regulatory Impact Analysis Statements). Adopting a definition of dependent child allows this balance to be maintained in a stable and predictable way. However, section 25(1) of the IRPA entails that the definition provides a general rule, not an absolute one. Exceptions can be made when a fair-minded person would consider it just and equitable to do so.