Disabled Adults and the Best Interests of the Child Analysis

4th Jun 2010 Comments Off on Disabled Adults and the Best Interests of the Child Analysis

“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), 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.

Previously, the issue of whether the best interests of a child extended to adult dependents was unclear.  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),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) (“Saporsantos“) Justice Shore systemically and thoroughly criticized the principle that dependency determines whether one is a child. 

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