Hawthorne v. Can. (M.C.I.) (2002), 297 N.R. 187 (FCA)
MLB headnote and full text
Temp. Cite: [2002] N.R. TBEd. DE.031
The Minister of Citizenship and Immigration (appellant) v. Daphney Hawthorne (respondent) and The Canadian Foundation For Children, Youth and the Law (intervener)
(A-595-01; 2002 FCA 475)
Indexed As: Hawthorne v. Canada (Minister of Citizenship and Immigration)
Federal Court of Appeal
Décary, Rothstein and Evans, JJ.A.
November 28, 2002.
Summary:
An immigration officer denied Hawthorne permission to apply for permanent residence status from within Canada on humanitarian and compassionate grounds (Immigration Act, s. 114(2)). Hawthorne applied for judicial review, asserting that the officer had given inadequate consideration to the best interest of her daughter who had been a permanent resident of Canada since 1999.
The Federal Court of Canada, Trial Division, in a decision reported at [2001] F.T.R. Uned. 642, allowed the application and remitted the matter for reconsideration. The court certified the following question for appeal: “is the requirement that the best interests of children be considered when disposing of an application for an exemption pursuant to subsection 114(2) as set out in Baker v. Canada (M.C.I.) [S.C.C.] satisfied by considering whether the removal of the parent will subject the child to unusual, undeserved or disproportionate hardship?” The Minister of Citizenship and Immigration appealed.
The Federal Court of Appeal, Evans, J.A., concurring in the result, dismissed the appeal and answered the certified question as follows: “The requirement that the best interests of the child be considered may be satisfied, depending on the circumstances of each case, by considering the degree of hardship to which the removal of a parent exposes the child.”
Aliens – Topic 4
Definitions and general principles – Children – Section 114(2) of the Immigration Act authorized the Minister of Citizenship and Immigration to grant an exemption from the requirement of applying for permanent resident status from outside Canada on humanitarian and compassionate grounds – Baker v. Canada (Minister of Citizenship and Immigration) (S.C.C.) provided that the best interests of children were to be considered when disposing of an application under s. 114(2) – The Federal Court of Appeal stated that to insist that an immigration officer spell out expressly that the officer had considered the best interests of the child before examining the degree of hardship to which the child would be subject, would elevate form above substance – The best interests of the child were to be 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 the parent’s removal from Canada or the child’s own voluntary departure should she wish to accompany the parent abroad – See paragraphs 3 and 4.
Aliens – Topic 4
Definitions and general principles – Children – Section 114(2) of the Immigration Act authorized the Minister of Citizenship and Immigration to grant an exemption from the requirement of applying for permanent resident status from outside Canada on humanitarian and compassionate grounds – Baker v. Canada (Minister of Citizenship and Immigration) (S.C.C.) provided that the best interests of children were to be considered when disposing of an application under s. 114(2) – The Federal Court of Appeal stated that the inquiry of an immigration officer assessing a child’s best interests was predicated on the premise, which need not be stated in the reasons, that, absent exceptional circumstances, the child’s best interests would favour non-removal of the parent – Additionally, the officer had to carefully examine the specific reasons put forward by the parent and/or child as to why non-removal was in the child’s best interests – For all practical purposes, the officer’s task was to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal and to weigh that degree of hardship together with other factors, including public policy considerations, that militated in favour of or against the removal – See paragraphs 5 and 6.
Aliens – Topic 4
Definitions and general principles – Children – Section 114(2) of the Immigration Act authorized the Minister of Citizenship and Immigration to grant an exemption from the requirement of applying for permanent resident status from outside Canada on humanitarian and compassionate grounds – The Federal Court of Appeal stated that the requirement that the best interests of children be considered when disposing of an application for an exemption under s. 114(2), as set out in Baker v. Canada (Minister of Citizenship and Immigration) (S.C.C.), could be satisfied, depending on the circumstances of each case, by considering the degree of hardship to which the removal of a parent would expose the child – See paragraph 11.
Aliens – Topic 1206
Admission – Immigrants – Upon compassionate or humanitarian grounds – Best interests of the children – [See all
Aliens – Topic 4
].
Aliens – Topic 1206
Admission – Immigrants – Upon compassionate or humanitarian grounds – Best interests of the children – Hawthorne, a citizen of Jamaica, came to Canada in 1992 to live with the father (Allen) of her eight year old daughter – The daughter remained in Jamaica in the care of relatives – Hawthorne sent money to Jamaica for the daughter’s support and regularly communicated with her – Hawthorne left Allen in 1994 after being physically and emotionally abused – In 1999 Allen sponsored the daughter’s admission to Canada as a permanent resident – After arriving in Canada, the daughter lived with and was supported by Hawthorne – She had little contact with Allen – Hawthorne applied for permanent residence status from within Canada on humanitarian and compassionate grounds – The immigration officer refused the request – The Federal Court of Appeal affirmed the quashing of the officer’s decision – The officer was not “alert, alive and sensitive” to the child’s best interests -The officer summarily dismissed the child’s concerns and ignored the financial implications for the child of Hawthorne’s removal – See paragraph 10.
Cases Noticed:
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [paras. 2, 14].
Legault v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 174; 212 D.L.R.(4th) 139 (F.C.A.), refd to. [para. 2, 15].
Suresh v. Canada (Minister of Citizenship and Immigration) (2000), 252 N.R. 1 (S.C.C.), refd to. [para. 14].
Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 34].
Cilbert v. Canada (Minister of Citizenship and Immigration) (2000), 198 F.T.R. 90 (T.D.), refd to. [para. 39].
Russell v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 97 (T.D.), refd to. [para. 39].
Koud et al. v. Canada (Ministre de la Citoyenneté et de l’Immigration), [2001] F.T.R. Uned. 527 (T.D.), refd to. [para. 41].
Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 44].
D.P. v. C.S., [1993] 4 S.C.R. 141; 159 N.R. 241; 58 Q.A.C. 1, refd to. [para. 44].
Anthony v. Canada (Minister of Citizenship and Immigration) (2001), 217 F.T.R. 181 (T.D.), refd to. [para. 45].
Bassan v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 440 (T.D.), refd to. [para. 45].
Gurunathan v. Canada (Minister of Citizenship and Immigration) (2001), 212 F.T.R. 309 (T.D.), refd to. [para. 45].
Statutes Noticed:
Immigration Act, R.S.C. 1985, c. I-2, sect. 114(2) [para. 29].
Authors and Works Noticed:
Canada, Department of Employment and Immigration, Immigration Manual, c. IP 5 [para. 30].
Counsel:
David Tyndale, for the appellant;
Mark Rosenblatt, for the respondent;
Cheryl Milne and Naomi Johnson, for the intervenor.
Solicitors of Record:
Morris Rosenberg, Deputy Attorney General of Canada, Toronto, Ontario, for the appellant;
Mark Rosenblatt, Toronto, Ontario, for the respondent;
Cheryl Milne, Canadian Foundation for Children, Youth and the Law, Justice for Children and Youth, Toronto, Ontario, for the intervenor.
This appeal was heard at Toronto, Ontario, on October 29, 2002, by Décary, Rothstein and Evans, JJ.A., of the Federal Court of Appeal. The decision of the court was delivered on November 28, 2002, with the following opinions:
Décary, J.A. (Rothstein, JJ.A., concurring) – see paragraphs 1 to 11;
Evans, J.A. – see paragraphs 12 to 53.
