May 25, 2016

Before Birth: What are the Best Interests of the (Unborn) Child?

The landmark Supreme Court decision in Kanthasamy v. Canada reshaped the way in which the best interests of a child must be considered. It held that decision-makers must identify, define, and examine the best interests of the child, and consider them in view of the other relevant factors. As noted in a recent Federal Court decision, this analysis necessarily includes unborn children.

In Li v. Canada, the Honourable Justice Shore reiterated that the best interests of unborn children must be considered in the same way as any other child. The case dealt with a decision from the Immigration Appeals Division (IAD) rejecting the appeal of a removal order issued after the Applicant was found to have misrepresented himself by entering into a marriage of convenience in order to gain permanent resident status in Canada.

At the IAD, the Applicant sought special relief from the removal order based on H&C grounds and the best interests of his child. Although at the time of the IAD decision the child was not yet born, Mr. Li had informed the IAD that his spouse was pregnant shortly after his hearing ended.

The IAD attributed little weight to the pregnancy, holding that “[…] until there is a live birth there are per se no best interests to take into consideration such that the best interests of this yet to be born child would be determinative of the appeal”. Finding that there were insufficient factors to warrant special relief, the IAD rejected the appeal.

In his decision, Shore J. found that the IAD applied the wrong legal test, citing previous jurisprudence, and held that there are no distinguishing factors differentiating a child from an unborn child; a principle that is by no means new but in this case clearly bore repeating. Thus, the IAD had the power to conduct an H&C analysis involving the best interest of the unborn child but failed to do so.

While not determinative in itself, this finding helped tip the scales in favor of the Applicant. In granting the application for judicial review, it was determined that the IAD had unreasonably failed to consider the best interests of the unborn child, the Applicant’s genuine remorse, the positive contribution he and his spouse brought to Canada and the hardship he would face if he were to be separated from his family.

For more information on Federal Court Applications and Appeals, please click here.

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