Last Updated on August 15, 2012 by Steven Meurrens

Almost two years ago I did a post on whether a disabled adult who is dependent on his parents can be considered a child for the “best interest of the child” analysis in H&C applications.  At the time, I wrote that:

[Saporsantos Leobrera v. Canada (Citizenship and Immigration), 2010 FC 587] holds that an adult with a disability remains an adult with a disability, and ought not to be deemed a “child” for the purposes of the Convention on the Rights of the Child, or section 25 of the Immigration and Refugee Protection Act.

It is important to note that this is only the most recent case in a string of decisions on this issue. Given the conflicting preceding decisions on the matter, the issue is by no means settled.

It took longer for this issue to re-emerge in the jurisprudence than I thought it would, but the issue of what the definition of a “child” is for the “best interest of the child” analysis was front and centre in the recent decision of Dugly Medina Moya v. The Minister of Citizenship and Immigration, 2012 FC 971.

In Moya, Justice Hughes agreed with and re-printed much of the judgement in Saporsantos Leobrera, 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.

Unlike in Saporsantos Leobrera, however, Justice Hughes acknowledged that there is uncertainty on the issue, and certified the following question:

“Is the ‘child’ spoken of in section 25 of IRPA restricted to a person under the age of 18 years?”

The issue is now on its way to the Federal Court of Appeal, and we should see a definitive answer on this soon.