Humanitarian and compassionate (H&C) considerations assessment: Best interests of a child (BIOC)

Applies to  in-Canada and  overseas

A decision on a humanitarian and compassionate (H&C) application or request must include an assessment of the best interests of any child (BIOC) directly affected by the decision. “Any child directly affected” in this context means a Canadian or foreign-born child (and could include children outside Canada).

BIOC must be considered any time a child is directly affected by a decision, regardless of the type of relationship between the applicant and the child. The only requirement is that the child must be directly affected.

It must be sufficiently clear from the material submitted that an application or request relies on this factor, in whole or in part. The onus is on the applicant to justify the basis of their H&C submission. It may be challenging for some applicants to express themselves in writing and an interview may therefore be warranted. If an applicant provides insufficient evidence, the decision-maker may conclude that BIOC has not been sufficiently demonstrated and that granting an exemption is not justified when conducting a global assessment.

Decision-makers must be “alert, alive and sensitive” to the best interests of the child (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817) and should bear in mind that “children will rarely, if ever, be deserving of any hardship” (Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555). As children may experience greater hardship than adults faced with a comparable situation, circumstances which may not warrant humanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief (Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61).

The codification of the principle of “best interests of a child” into the legislation does not mean that the interests of the child outweigh all other factors in a case. While factors affecting children should be given substantial weight, BIOC is only one of many important factors that the decision-maker needs to consider when making an H&C decision that directly affects a child. When the applicant is a minor, the balancing of the positive and negative factors must be assessed as they relate to the best interests of the child.

The outcome of a decision under subsection A25(1) that directly affects a child will always depend on the facts of the case. Decision-makers must consider all evidence submitted by an applicant with their request. The following guidelines are not an exhaustive list of factors relating to children, nor are they necessarily determinative of the decision. Rather, they are meant as a guide and illustrate the types of factors often present in subsection A25(1) cases involving BIOC. As stated by the Supreme Court of Canada, “[t]he multitude of factors that may impinge on the child’s best interest make a measure of indeterminacy inevitable. A more precise test would risk sacrificing the child’s best interests to expediency and certainty” (Gordon v Goertz, [1996] 2 SCR 27).

Elements to consider

Generally, elements relating to a child’s emotional, social, cultural and physical welfare should be considered when raised. Examples of elements that applicants may present, include but are not limited to the following:

• the age of the child
• the level of dependency between the child and the H&C applicant
• the degree of the child’s establishment in Canada
• the legal custodian of the child
• the child’s links to the country in relation to which the H&C assessment is being considered
• the conditions of that country and the potential impact on the child
• medical issues or special needs that the child may have
• the impact to the child’s education
• matters related to the child’s gender
• the point of view of the child as well

When assessing the above elements, it is important that decision-makers are mindful of Gender-Based Analysis Plus (GBA Plus) principles when determining BIOC. Children can have diverse intersectional identity factors that can impact their experiences. Decision-makers should always consider a child’s intersectional identity factors when determining BIOC. Should decision-makers require further information on GBA Plus principles and how this type of analysis can help them in rendering their decisions, more information can be found at the GBA Plus page.

The facts surrounding a decision under subsection A25(1) may sometimes give rise to the issue of whether the decision would place the directly affected child in danger, which may arise regardless of whether the child is a Canadian citizen or foreign-born.

Note: A kafala arrangement is not equivalent to adoption as it does not sever the legal parent-child relationship of the child with their biological parent(s) nor create a new legal parent-child relationship with the kafil(s). Kafala arrangements are revocable at any time and dissolve when the child reaches the age of majority. The safeguards established in the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (Adoption Convention), to which Canada is a party, do not extend to kafala arrangements. Unlike for adoptions, many countries that use a system of kafala do not have a central agency/system^{Footnote 1} that is mandated to ensure the protection of children, making it more difficult to assess whether any given kafala arrangement is in the best interest of the child.

Children 18 years or over

BIOC must be considered when a child is under 18 years of age at the time the application is received.

There may be cases in which the situation of older children is relevant and should be taken into consideration in an H&C assessment, but if they are not under 18 years of age, it is not a BIOC case.

Legal references

• Baker v. MCI, [1999] 2 SCR 817
• Legault v. MCI, [2001] 3 FC 277
• MCI v. Hawthorne, [2003] 2 FC 555
• Owusu v. MCI, [2004] 2 FC 635
• Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61
• See also Convention on the Rights of the Child, [Can. T.S. 1992 No. 3]