Written by Maxwell Musgrove, Lawyer at Chaudhary Law Office
The best interests of a child, or children, often referred to as the “BIOC”, have for decades been a significant factor in all Humanitarian and Compassionate (“H&C”) immigration cases in which a child is directly affected. In light of Canada’s obligations as a signatory to the United Nations’ Convention on the Rights of the Child [the “Convention”], H&C officers must give substantial weight to the way children are affected by their decisions, and be alert, alive and sensitive to those children’s interests (Baker v Canada,  2 SCR 817 [Baker], para 75).
The phrase “the best interests of a child” was added to the Immigration and Refugee Protection Act (the IRPA) in 2001, though the word “child” was left undefined. Twenty-two years later, despite significant jurisprudence, the question of who is a child remains unsettled in some surprising ways. For example, in 2017 Justice Manson wrote quite decisively, “the BIOC analysis applies equally to unborn children” (Oladele v Canada, 2017 FC 851, para 63). However, in 2021, Justice Simpson of the same Court found, “In my view, the decision of the Supreme Court of Canada […] makes it clear that an unborn child has no interests” (Canada v Huseynova, 2021 FC 1070, para 5).
A similarly important question is, when does a child cease being a child? The following paragraphs provide a brief history of relevant decisions around this question, the current split in interpretation, as well as thoughts on future developments.
The addition of the BIOC language to the IPRA came following the Supreme Court of Canada’s landmark ruling in Baker. The addition was intended to reflect the Baker decision, which found that attentiveness and sensitivity to the BIOC was essential in humanitarian decisions.
Ms. Baker had four minor children at the time of the Supreme Court’s decision, and the Court accordingly had no reason to comment on the definition of a child. However, the Court did draw heavily from the Convention in its analysis.
[…] the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.
The principles of the Convention and other international instruments place special importance on protections for children and childhood, […] They help show the values that are central in determining whether this decision was a reasonable exercise of the H & C power.
The Convention provides a fairly straightforward definition of a child at Article 1:
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 attained earlier.
In Canada, the official age of majority is set by the provinces and territories, with about half setting it at 18 and the rest at 19. This already introduces some complications, though it is not a unique issue. Other Federal legislation, such as the Divorce Act and the Corrections and Conditional Release Regulations, refer to the age of majority, but use whichever age applies in the province where the child resides.
The bigger question is whether the Convention is authoritative on this issue at all. Lawmakers appear to have considered the Convention when implementing the Baker decision in the IRPA, though in terms that suggest the legislation did not fully accept the Convention. Bernard Bigras, who was a member of Parliament’s Citizenship and Immigration committee at the time, referred to the Convention in critique of the Bill C-31, suggesting that the bill did not give sufficient priority to the BIOC. Pat Martin, who was on the same committee, echoed this criticism, saying “We believe that the language in the legislation should accurately reflect the language we are already bound to under the UN convention.”
However, before the bill was ratified, the Federal Court had already endorsed a broader interpretation of “child”. Writing in 2000 about a case which involved an 18-year-old and a 22-year-old, Justice Gibson found, “the two sons of the applicants, whatever their ages, remained ‘children’ of the applicants who could reasonably be expected to be dramatically affected by the removal from Canada of their parents.” The decision goes on to consider whether the hardship these children would face due to their parents’ removal was outside of their control, suggesting that the category of “children” depends in part on the fault or innocence of the child in question. This has some harmony with other jurisprudence about the BIOC, such as the still frequently cited quote that “children will rarely, if ever, be deserving of any hardship” (Hawthorn v Canada, 2002 FCA 475, para 9).
Further Federal Court decisions found that the BIOC framework can apply to a 19-year-old who is a dependent and is not authorized to work or to continue studies in Canada; as well as adult sons in their 20s whose parent is responsible for their care, who are in school and financially depend on their parent, and who did not have a choice in the circumstances which led to the H&C application.
Meanwhile, other jurisprudence emerged to the opposite effect. In 2009, Justice de Montigny, after acknowledging the cases above, expressed disagreement with them, commenting in obiter that it was clear what the Supreme Court had in mind in Baker were the interests of minor children. Despite this, he ultimately found it inappropriate to unsettle the state of the law.
In Saporsantos Leobrera v Canada, 2010 FC 587 [Saporsantos], Justice Shore described the gradual moves towards incorporating dependency into the definition of “child”, a direction which he goes on to thoroughly rebut.
The author of this article has great respect for Justice Shore’s analysis in Saporsantos, which is perhaps the Court’s most fulsome canvassing of this topic. For those interested, Saporsantos, and in particular paragraphs 30-72, is essential for further reading. However, the section of the decision discussed here focuses on the presumption of consistent expression.
Justice Shore observes that “dependent child” is a defined term used elsewhere in Canadian immigration law, which includes children above the age of majority. He found that the move to incorporate dependency into the term “child” for BIOC purposes brought the word too close in meaning to “dependent child”, contrary to the presumption that when Parliament uses different words it intends for them to have different meanings. In this way, Justice Shore began the pendulum’s swing towards a more restrictive interpretation.
In the years since Saporsantos the Court has, on a few occasions, acknowledged the split in jurisprudence. Some more recent decisions have used the broader interpretation of “child”, while others have taken Saporsantos to mean that the BIOC framework ceases to apply upon attaining the age of 18. However, none of these cases have significantly furthered the fundamental interpretive issues. That may be overdue for change.
Saporsantos did not posit that a person ceases to be a child at the age of 18. While analysis in Saporsantos does draw heavily from materials that support an age-based definition, Justice Shore did not go so far as to wholly invalidate the jurisprudence which came before. Rather, he steered the jurisprudence, perhaps a bit sharply, away from a definition which would include every dependent.
Considering the presumption of consistent expression, the IRPA does refer to “minor children” specifically at multiple points. It therefore should be presumed that Parliament intended “child” for BIOC purposes to mean something different.
Therefore, a definition of “child” which is distinct from both “minor child” and “dependent child” may be appropriate. One which may consider age and dependency, but also other factors. Earlier jurisprudence may be the key to this. Specifically, consideration of whether the circumstances which create hardship for the professed child were imposed upon them or something they had control over upon reaching a certain degree of maturity. A child, thereby, being a party that is rarely, if ever, deserving of the resulting hardship.