Best Interests of the Child (BIOC): A Legal Guide for Practitioners
“The best interests of the child must always be front of mind—but never blind to the broader legal context. It is a primary consideration, not a trump card.”
— Mehr Immigration Services Corporation
Introduction: Evolving Judicial and Tribunal Trends in Applying the Best Interests of the Child (BIOC)
In recent years, Canadian immigration tribunals and courts have displayed a more nuanced and structured approach toward the Best Interests of the Child (BIOC) in decisions under the Immigration and Refugee Protection Act (IRPA). While the concept has always been relevant, particularly in removal order appeals under s. 63 of the IRPA and humanitarian and compassionate (H&C) determinations under s. 25(1), recent jurisprudence shows that the assessment is becoming more contextualized, evidence-driven, and aligned with international obligations under the Convention on the Rights of the Child (CRC).
Yet, BIOC is not determinative—a common misconception. It is a primary consideration, meaning it must be seriously weighed against other compelling state interests such as immigration control and public safety. Courts have increasingly emphasized the need for decision-makers to explicitly demonstrate their consideration of BIOC in their written reasons. Failure to do so can lead to judicial intervention.
Legal Framework: Statutory and Jurisprudential Foundations
1. Statutory Basis
- IRPA s. 25(1): Officers must consider the BIOC when assessing H&C applications.
- IRPA s. 67(1)(c): The Immigration Appeal Division (IAD) must consider H&C factors including BIOC in appeals, such as removal order appeals by permanent residents or sponsored family members.
- IRPA s. 3(3)(f): The Act must be interpreted in a manner that complies with international human rights instruments to which Canada is a signatory, including the CRC.
2. Leading Jurisprudence
- Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817
Landmark case where the Supreme Court of Canada held that BIOC is a mandatory consideration in H&C decisions and emphasized procedural fairness. - Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61
The Court expanded the scope of H&C analysis to require a holistic assessment and re-affirmed that BIOC is not to be applied mechanistically. - Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475
Reiterated that while BIOC is not decisive, it must be treated as a substantive factor and not merely acknowledged. - Cid v. Canada (Citizenship and Immigration), 2021 FC 44
The Court criticized the decision-maker for failing to engage in meaningful analysis of a child’s circumstances, leading to a successful judicial review.
3. Factors Considered in the Best Interests of the Child (BIOC)
Decision-makers assess a range of interrelated elements when determining the Best Interests of the Child (BIOC). These factors must be addressed with supporting evidence, tailored to the specific facts of the case. The following are commonly cited and judicially recognized considerations:
- Age and Developmental Stage
- Level of Dependency
- Establishment in Canada (school, language, friends)
- Ties to Country of Origin
- Country Conditions
- Medical or Special Needs
- Educational Disruption
- Gender-related Risks
- Risk of Psychological Harm or Separation
What Constitutes Adequate Evidence of BIOC?
To effectively argue the BIOC, practitioners should gather and present detailed, persuasive, and corroborative documentation, including but not limited to:
1. Child’s Establishment in Canada
- School records (report cards, letters from teachers or principals)
- Letters from community or religious organizations
- Proof of participation in extracurricular activities
2. Emotional and Psychological Well-being
- Psychological assessments or letters from therapists
- Evidence of behavioural issues potentially arising from disruption
- Affidavits from caregivers or extended family
3. Medical Needs
- Specialist reports outlining treatment unavailable in the country of return
- Documentation of ongoing health conditions and their management in Canada
4. Impact of Separation
- Evidence of dependency on the parent (particularly if removal leads to separation)
- Expert evidence on attachment or trauma
- Statements from the child (age-appropriate) or guardians
5. Country Conditions
- Objective evidence (e.g., UN, NGO, or government reports) showing lack of adequate services, education, or safety for children in the destination country.
Practical Strategies in Advocacy
1. Treat BIOC as Central, Not Peripheral
Ensure that submissions do not treat BIOC as an afterthought. It must be front and center, with thorough analysis and evidence linking the child’s best interests to the requested immigration relief.
2. Avoid Boilerplate Language
Generic statements such as “it is not in the child’s best interest to be removed” will not suffice. Practitioners must link each claim to specific, credible evidence.
3. Use Expert Evidence Strategically
Psychological or pediatric expert reports can carry significant weight in establishing the short- and long-term harm a child may suffer from removal or separation.
4. Consider the Cumulative Impact
In line with Kanthasamy, assess all circumstances together—BIOC, hardship, establishment, family ties—rather than in isolation.
5. Prepare Clients for Hearings
At the IAD, credible testimony from the appellant or other family members can humanize the child’s experiences and explain why remaining in Canada is vital for their well-being.
Conclusion
Practitioners must therefore present BIOC within a balanced, evidence-rich narrative, avoiding isolated or overly generalized claims. The goal is to demonstrate, holistically, why the discretionary relief sought aligns with both legal standards and equitable outcomes.
Disclaimer
This article is intended for general informational purposes and does not constitute legal advice. The application of the Best Interests of the Child in immigration law is highly fact-specific and may vary depending on the context and jurisdiction. If you are a legal practitioner or applicant seeking tailored guidance on how to present or strengthen BIOC arguments in an appeal or H&C application, we would be pleased to assist. Please feel free to contact our office for a confidential consultation.
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