You have a child in Canada. Maybe the child was born here and is a citizen. Maybe the child came with you and has spent most of their life in Canadian schools. Either way, you have been told that the child’s situation is the strongest part of your humanitarian and compassionate application. That is often true, but only if the application treats the child’s interests the way the law requires, and not as a single paragraph at the end.
The legal starting point
The Immigration and Refugee Protection Act directs the officer to take into account the best interests of a child directly affected by the decision. The Supreme Court of Canada has said this factor must be well identified and defined, and examined with a great deal of attention in light of all the evidence. The officer has to be alert, alive and sensitive to the child’s interests, not merely mention them.
Three points follow.
- The child does not have to be yours. The test is whether the child is directly affected. A stepchild, a grandchild you care for, or a niece who lives with you can all qualify. So can a child who would stay in Canada while you are removed, if your removal would change their life.
- The child does not have to be Canadian. A child who came with you and has no status of their own is still a child whose interests must be assessed. The question becomes what return would mean for that child, not just for you.
- The child’s interests are important, but not automatically decisive. An officer who gives the child’s interests full and careful weight can still refuse the application if other factors outweigh them. What the officer cannot do is treat those interests superficially, or reason that because the child’s basic needs would be met in the country of return, the factor has been dealt with. Basic needs are not the standard.
What the analysis is supposed to look like
The officer should identify what the child’s best interests actually are, and then assess how far the decision compromises them. In practice that means looking at things like:
- The child’s age and how long they have been in Canada.
- Their schooling, language, and friendships, and what disruption would mean for them.
- Any medical, developmental, or psychological needs and whether they can be met on return.
- The child’s relationship with each parent, and what separation would do if one parent stays.
- Conditions for children in the country of return, including education, safety, and, where relevant, discrimination against children of a particular background.
- The child’s own views, where they are old enough to express them.
An application that gives the officer this material, organised so that each point is supported, makes it difficult to write a refusal that skates past the child. An application that says removal would not be in the best interests of my Canadian-born daughter, and stops there, does not.
Evidence that actually helps
The evidence should be about the child, not about the parent’s love for the child.
- School reports, report cards, and letters from teachers describing the child’s progress and integration.
- Medical or psychological reports where there is a condition, including an opinion on the effect of relocation.
- Evidence of extracurricular activities, friendships, and community involvement.
- Country evidence on the situation of children, particularly on education and healthcare, and on any particular vulnerability the child has.
- Where a parent would remain in Canada, evidence of that parent’s role in the child’s daily life.
- For older children, a short letter in their own words, if they are comfortable writing one.
A psychological assessment can be valuable, but it has to be a genuine assessment of the child based on clinical contact. Officers and the Federal Court have both been sceptical of reports that appear to have been produced for the application rather than for the child.
Two situations that need particular care
A child who would stay behind. Where the plan is that the child remains in Canada with the other parent, the application has to confront the separation honestly. Officers sometimes reason that because the child stays, their life is not disrupted. The answer is that losing daily contact with a parent is itself a serious harm, and the evidence should show what that parent does in the child’s life.
A citizen child who would go with you. Officers sometimes reason that the child, as a Canadian citizen, can return to Canada as an adult, so the loss is temporary. Courts have not accepted that a child’s interests can be deferred to adulthood, but the application has to make the point rather than leave the officer to find it.
The twelve-month exception
For failed refugee claimants, a child’s interests also matter procedurally. The twelve-month bar on filing an H&C application after a refusal at the Board does not apply where a child under eighteen would be directly affected. We have written about that in our post on filing an H&C application after a refugee refusal.
Before you file
A child’s interests should be set out as a distinct, evidenced section with its own submissions, not folded into the rest of the application. For the broader picture, see our overview of H&C applications and our H&C practice page. To have your situation assessed, book a consultation with Kabir & Alam Lawyers.