The Best Interests of a Child often inform immigration decisions, particularly within the scope of humanitarian and compassionate applications under s.25 of the Immigration and Refugee Protection Act.
The Federal Court has considered this concept:
Williams v. MCI 2012 FC 166 Mr. Justice Russell made several comments regarding the assessment of a child's "best interests".
[59] This Court has also instructed that being “alert, alive and sensitive” to a child’s best interests is a separate analysis from consideration of the threshold standards of “unusual, undeserved or disproportionate hardship.” As Justice Barnes made clear in Shchegolevich, above, at paragraph 12:
It is clear that the Officer erred by requiring that Mr. Schegolevich establish that the adverse effects of his removal upon his spouse and his stepson would be unusual, undeserved, or disproportionate. This standard is only to be applied to the assessment of hardship experienced by an applicant from having to apply for admission to Canada from overseas; it does not apply to the assessment of the best interests of a child affected by the removal of a parent.
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[63] When assessing a child’s best interests an Officer must establish first what is in the child’s best interest, second the degree to which the child’s interests are compromised by one potential decision over another, and then finally, in light of the foregoing assessment determine the weight that this factor should play in the ultimate balancing of positive and negative factors assessed in the application.
[64] There is no basic needs minimum which if “met” satisfies the best interest test. Furthermore, there is no hardship threshold, such that if the circumstances of the child reach a certain point on that hardship scale only then will a child’s best interests be so significantly “negatively impacted” as to warrant positive consideration. The question is not: “is the child suffering enough that his “best interests” are not being “met”? The question at the initial stage of the assessment is: “what is in the child’s best interests?”
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[66] As was noted by the Federal Court of Appeal in Hawthorne, and by this Court in Arulraj and Shchegolevich, a child will rarely, if ever, be deserving of any level of hardship. As a result, a threshold test of undeserved or undue hardship or a threshold “basic needs” approach to a best interests analysis, like that applied by the Officer in this case, does not adequately determine – in a way that is “alert, alive and sensitive” – what is in the child’s best interest.
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[70] In Kolosovs, above, the Federal Court described what it means to be open and sensitive to the best interests of children, in the following terms:
It is only after a visa officer has gained a full understanding of the real life impact of a negative H&C decision on the best interests of a child can the officer give those best interests sensitive consideration. To demonstrate sensitivity, the officer must be able to clearly articulate the suffering of a child that will result from a negative decision, and then say whether, together with a consideration of other factors, the suffering warrants humanitarian and compassionate relief. [Emphasis added]
Raj Sharma JD LLM
Partner
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