Legault v. Canada

Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 FCR 358, 2002 FCA 125 (CanLII)


• Citizen of USA living in Canada since 1982
• Seven children in Canada with two Canadian partners, of which he is the sole supporter
• 1986 – convicted of fraud offences, and a warrant was issued for his arrest
• Then submitted an H&C Application, which was denied
• The H&C decision was successfully JR’d at the FC, as judge felt that, pursuant to Baker, BIOC had to prevail absent exceptional circumstances
• The FC decision was appealed to the FCA (this is that decision)
• In short, the FCA decision stands for the principle that BIOC must be considered but are not determinative and won’t necessarily prevail. FCA interprets Baker and Suresh to arrive at the conclusion that reviewing courts are not to engage in a new weighing process. On the other hand, simply mentioning BIOC is not sufficient.
[12]In short, the immigration officer must be “alert, alive and sensitive” (Baker, supra, at paragraph 75) to the interests of the children, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circumstances. The presence of children, contrary to the conclusion of Justice Nadon, does not call for a certain result. It is not because the interests of the children favour the fact that a parent residing illegally in Canada should remain in Canada (which, as justly stated by Justice Nadon, will generally be the case), that the Minister must exercise his discretion in favour of said parent. Parliament has not decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any “refoulement” of a parent illegally residing in Canada (see Langner v. Canada (Minister of Employment and Immigration) (1995), 29 C.R.R. (2d) 184 (F.C.A.), leave to appeal refused, [1995] 3 S.C.R. vii).