Category: Best Interest of Child

The officer set aside a decision relating to the best interests of the child decision noting: The officer finds with respect to 12-year old Alonzo that “[t]here is little questioning that his best interests would be met were he to remain in Canada.” The officer then goes on to examine the impact on Alonzo if he is returned to Mexico and finds that if he were to be removed to Mexico his interests would not be “compromised.” As for the younger son, Pierre-Alexandre, the officer finds that his best interests are to “remain as a family unit, with the emotional, physical and financial support of his parents.” This is hardly surprising. It would be a very unusual case where an infant’s best interests are that he be removed from his parents and family. Contrary to his brother’s situation, the officer makes no finding as to whether his interests are best served by remaining in Canada or being removed to Mexico. The officer fails to clearly and specifically address how Pierre-Alexandre would be affected by his removal to Mexico with his parents. The officer ought to have initially considered Pierre-Alexandre’s best interests and then subsequently considered whether his removal from Canada would compromise those interests, such that the family ought to remain in Canada on H&C grounds. [10] The officer acknowledged that the evidence “demonstrates that corruption, violence and human rights violations are problems in Mexico.” The officer states that “[t]hese are risks unfortunately faced by all people residing in Mexico.” Accordingly, these would be risks faced by Pierre-Alexandre if he is removed. As such, the officer needed to examine them in order to be alert, alive and sensitive to this child’s interests. The officer did not. He or she fails to deal with this child’s interest as a Citizen of Canada in not being removed to such an environment. Accordingly, I find a failure to properly weigh this child’s interests. Simply, the analysis of the impact on this child of his removal to Mexico is wanting and for that reason this application is allowed.

The Court set aside a refusal to grant an exemption on humanitarian grounds of a child refused due to non declaration pursuant to section 117 9 (d). The Court found the officer's conclusion about the best interests of the child and the country conditions unreasonable: [80] The Officer herself makes the situation in Zimbabwe a significant factor in her analysis and, of course, it ought to be when assessing the best interests of the Applicant. I think her incorrect analysis of the situation is a highly material error that renders the Decision unreasonable. I cannot say that the Officer would have come to the same conclusion regarding the best interests of the Applicant if she had taken into account what the evidence does say about declining conditions in Zimbabwe and the prospects for the Applicant if he has to remain there. Consequently, I believe this matter requires reconsideration. [81] I am also concerned by the Officer’s assessment that “it is possible that [the Applicant] does have contact with his [biological] mother.” The evidence from the Sponsor is clear that there is no such contact and there is nothing in the record to suggest this is not true. The fact that the Applicant may have had a contact address for his biological mother does not mean that she plays, or will play, any role in his life. If the Officer felt that the Sponsor could not be believed on this issue, then she should have interviewed him to test his credibility. Her failure to do this renders her suggestion that the biological mother could be available to the Applicant unreasonable. Once again, this renders the Decision unsafe regarding the Officer’s analysis of the Applicant’s best interests. The finding was highly material and there is no evidence to support the Officer’s conclusion.

Shpati v. Canada (Pulic Safety and Emergency Preparedness)/, IMM-1396-10, 2010 FC 1046, Harrington J. This case should be reported first for its analysis of the issue of fairness. The court holds that there is a breach of fairness in circumstances where an officer questions evidence that has not previously been questioned as relies on an absence of evidence. In such circumstances notice is required. He also found deficient analysis of the best interests of the child. Finally the case also raises an interesting discussion about the scope of an officer to defer and the matters that ought to be taken into consideration.

The Court found deficient the analysis of the best interests of the child noting: [29] While I am not prepared to intervene with respect to the Officer’s analysis concerning the situation of the parents and their youngest child, which appears to be reasonable in light of the entire evidence, I am of the view that the decision with respect to the adult children cannot be reasonable given the failure to acknowledge or engage in a discussion of their cultural connection to Canada and the non-existence of a connection to Pakistan. These children who came as dependents to their father’s refugee claim have lived in Canada for over a decade and should be uniquely considered.[30] The Officer does not distinguish between “unusual and undeserved” hardship - that which is not anticipated by the Act or is a result of circumstances beyond the person’s control - and “disproportionate hardship” - that which creates a disproportionate impact on the applicant due to their personal circumstances (IP-5 Guidelines). Regardless of the terminology, I consider that the Officer’s decision that neither of the applicant’s adult children will face hardship is unreasonable in light of the evidence of risk of return for Ashra (and the Officer’s failure to acknowledge it) and the establishment of both of the adult children in Canada and accordingly, it should be quashed

The court set aside a decision holding that the adoption was legal and created a genuine parent child relationship;

The Federal Court of Appeal held that a PRRA officer need not consider the best interests of a Canadian child. If there are issues of risk that arise with respect to the removal of the child to another country because there is no caregiver available in Canada this assessment is to be doen within an H & C application and the applicant can seek a deferral of removal.

The Court upheld an H & C decision dealing with best interests of the child. Based on the evidence before the officer her decision was reasonable.

The applicants child was a Canadian citizen. She was the sole caregiver and the child had serious medical issues which would not be treated adequately outside of Canada. The Court found the Appeal Divisions analysis of the best interests of the child to be deficient.

The Court set aside a negative application made on humanitarian grounds. The Court found that the tribunal erred in failing to consider the order of the Family Court granting custody. The officer also made unreasonable findings not supported by the evidence in her assessment of the best interests of the child.

The Court set aside a decision refusing an H & C application. The Court noted that the officer had failed to consider the best interests of the child who was being cared for by the grandmother who was the applicant.