Humanitarian and compassionate assessment: Best interests of a child

Applies to

• in Canada
• overseas

A decision on a humanitarian and compassionate (H&C) application must include an assessment of the best interests of any child 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).

The relationship between the applicant and “any child directly affected” need not necessarily be that of parent and child, but could be another relationship that is affected by the decision. For example, a grandparent could be the primary caregiver who is affected by an immigration decision that would in turn affect the child.

It must be sufficiently clear from the material submitted that an application relies in whole, or at least in part, on this factor. An applicant has the burden of justifying the basis of their H&C submission. For some applicants, it can be difficult to express themselves in writing and it may be warranted to invite the applicant to an interview. If an applicant provides insufficient evidence to support the fact that best interests of a child is a factor, the decision maker may conclude that the grant of the exemption is not justified.

In assessing H&C submissions, the decision makers must be “alert, alive and sensitive” to the best interests of the children (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817) and should bear in mind that “[c]hildren 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, the best interests of a child 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.

The outcome of a decision under 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 in relation to their A25(1) 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 that are often present in A25(1) cases involving the best interests of a child. As stated by Madam Justice McLachlin of 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 S.C.R. 27).

Factors to consider

Generally, factors relating to a child’s emotional, social, cultural and physical welfare should be taken into account when raised. Some examples of factors that applicants may raise include but are not limited to:

• 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 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 the child may have
• the impact to the child’s education
• matters related to the child’s gender.

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

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 best interests of the child case. 

Relevant case law

• Baker v. MCI, [1999] 2 S.C.R. 817
• Legault v. MCI, [2001] 3 F.C. 277
• MCI v. Hawthorne, [2003] 2 F.C. 555
• Owusu v. MCI, [2004] 2 F.C. 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].