Hawthorne v. Canada

Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 FCR 555, 2002 FCA 475 (CanLII)


• FC accepted Hawthorne’s JR of her H&C Application, and the Minister appealed to the FCA
• Applicant was Jamaican, had come to Canada in 1992 to live with spouse who had status in Canada; however, spouse became abusive and they separated in 1994
• Hawthorne had been living in Canada without status since that time; applied for H&C in January 2000
• Spouse sponsored their daughter to come to Canada in 1999, but daughter ended up living with Hawthorne, the applicant in this H&C application, and became very close to her. Daughter had very little contact with the father.
• Daughter was left with grandparents in Jamaica from 1992-1999. Daughter had been a PR in Canada since 1999.
• Hawthorne was ordered deported in 2000, but obtained a stay of removal pending a decision on her H&C application on the basis that her removal would cause irreparable harm to the daughter
• Question is whether the officer’s evaluation of the H&C application was reasonable; particularly, did she adequately consider the BIOC in arriving at her decision? Federal Court said no, the officer did not adequately consider BIOC and hardship of mother’s removal on the child
• Majority reasons:
o BIOC are important, and decision-maker must be alert, sensitive, and alive to them
o However, BIOC are important but not determinative (see Legault)
o In almost every removal case, non-removal of the parent will be in BIOC, so this cannot be determinative Not a legal requirement that the decision-maker spell out that the BIOC had been considered – this is to elevate form over substance
o Concept of undeserved hardship not appropriate for children – children will rarely, if ever, be deserving of any hardship
o [6] To simply require that the officer determine whether the child’s best interests favour non-removal is somewhat artificial–such a finding will be a given in all but a very few, unusual cases. For all practical purposes, the officer’s task is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent.

• [11] I would dismiss the appeal and answer the certified question as follows:

o Q.: Is the requirement that the best interests of children be considered when disposing of an [H&C] application for an exemption…as set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, satisfied by considering whether the removal of the parent will subject the child to unusual, undeserved or disproportionate hardship?
o A: 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.

• Application to the facts of this case:

o [10] That being said, I agree with my colleague that on the facts of this case, the officer was not “alert, alive and sensitive” to the child’s best interests, more particularly in summarily dismissing the child’s own concerns and ignoring, for all practical purposes, the financial implications for the child of her mother’s removal. The matter was properly sent back by Pelletier J. to the Minister for reconsideration.