What warrants humanitarian and compassionate (H & C) relief will vary depending on the facts and context of the matter and such determination is usually made in accordance with the guidelines. As described by the Supreme Court of Canada in Kanthasamy v Canada (Minister of Citizenship and Immigration), 2015 SCC 61, H & C provisions allows “the power to mitigate the rigidity of the law in an appropriate case”. This provision elaborates on the importance of being able to guard against the unfairness of deportation in certain cases. 

The `best interests of the child’ often referred to as BIOC analysis in H & C applications are usually determined by considering the benefit to the child of the parent’s non-removal from Canada as well as the hardship the child would suffer from either of the parents’ removal from Canada or their own voluntary departure should they wish to accompany their parent abroad. Such benefits and hardships are two sides of the same coin, the coin being the best interests of the child.

In an officer’s decision, the best interests of a child must be “well identified and defined” and “examined with a great deal of attention.”  The mere mention of the children is not sufficient. To mention is not to examine and weigh. The interests of the children is a factor that must be examined with care and weighed with other factors. 

In Gayle v. Canada (Citizenship and Immigration), 2024 FC 29, the Officer refused the Applicant’s H&C application. While the Officer granted positive weight to various considerations, in assessing the application globally and weighing the factors cumulatively, the Officer was not satisfied that the Applicant’s circumstances warranted an H&C exemption. The Officer assigned “little weight” to the best interests of the Applicant’s daughter. 

The Officer determined that the daughter was “no longer considered to be a child” because she was eighteen years old. The Officer further found that there was “little evidence submitted to suggest that she cannot take care of herself” and “little evidence to suggest that she has any psychological, physical or mental impairments that would make her dependent” on her mother.

The Federal Court found that the Officer failed to properly assess the BIOC. When the Applicant submitted her H&C application, her daughter was seventeen years old. The relevant guidelines make clear that “BIOC must be considered when a child is under 18 years of age at the time the application is received”. As a result, the Guidelines “lock-in” the age of the dependents at the time of the H&C application. This ensures fairness such that delays in the processing of applications do not “age out” children.

The Courts have held that the Guidelines create a legitimate expectation that BIOC will be considered when a child is under eighteen years of age at the time of the H&C application. See the cases of Deng v Canada (Citizenship and Immigration), 2019 FC 338 at para 22; Charles v Canada (Citizenship and Immigration), 2014 FC 772 at para 31; Noh v Canada (Minister of Citizenship and Immigration), 2012 FC 529 at paras 65-66.

By finding that the Applicant’s daughter was “no longer considered to be a child” because she was eighteen years old at the time of the Decision, the Officer failed to undertake the required robust BIOC analysis in accordance with well-established jurisprudence. This highly contextual analysis is responsive to each child’s age, capacity, needs, maturity, and level of development.

The Officer’s failure to properly assess the BIOC was found to be a reviewable error that, in and of itself, justified setting aside the Officer’s Decision. As stated by the Supreme Court, an H&C decision is “unreasonable if the interests of children affected by the decision are not sufficiently considered”.