Date: 20041109
Docket: IMM-4910-03
Citation: 2004 FC 1569
BETWEEN:
CECIL ANTHONY LOVE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons follow the hearing of an application for judicial review of a decision of a Counsellor in the Respondent's Ministry (the "Counsellor") denying the Applicant's request that he be permitted to apply for permanent residence from within Canada on humanitarian and compassionate grounds. The decision under review is dated the 14th of April, 2003.
[2] The Applicant arrived in Canada from Jamaica, on the 8th of October, 1988, as a visitor. His first application for landing from within Canada was initially accepted on humanitarian and compassionate grounds but was eventually refused because of criminal convictions that he accumulated.
[3] Shortly after arriving in Canada, the Applicant, in the words of the Counsellor, entered into an "off and on" relationship with Laurel Williams, a Canadian citizen. The Applicant and Ms. Williams alleged that they began to cohabit shortly thereafter although this allegation was not accepted by the Counsellor and was not corroborated by the Applicant and Ms. Williams. The Applicant and Ms. Williams have four (4) children born between April 1990 and January 1997. Ms. Williams has a fifth child born in 1988 who is identified as a stepson of the Applicant.
[4] A removal order was issued against the Applicant on the 20th of February, 2001. In March of 2001, the Applicant and Ms. Williams were married.
[5] The Applicant and Ms. Williams, together with the five (5) children, attended for an interview with the Counsellor on the 12th of April, 2002. Only the Applicant and Ms. Williams were interviewed. The children waited in a reception area. The Counsellor had before her affidavits from the Applicant, Ms. Williams and the oldest of their four (4) children. Those affidavits attest at length to the positive relationship between the Applicant and all five (5) children.
[6] Apparently the Applicant and Ms. Williams did not make a favourable impression at interview with the Counsellor. The Counsellor wrote in her notes of interview:
- Based on information submitted I am not satisfied that they [the Applicant and Ms. Williams] have lived together as a family unit during all these years and the intention of their marriage is bona fide.
- I am not satisfied that his [the Applicant's] financial contributions to the family are significant and that the family will face financial hardship if he has to leave Canada.
- I am not satisfied that he has cared and lived with them [the children] since their birth (no evidence was submitted to support their statement).
[7] The Counsellor makes no reference to the affidavits that were before her except in the following brief passage from her notes:
I took into consideration their own affidavits (presented at interview and in writing) and of daughter's Dejania when assessing the best interests of the children. While it is agreeable [sic] that the children will miss him if he has to leave Canada to submit an application abroad, I am not satisfied that he has cared and lived with them since their birth (no evidence was submitted to support their statement). I am not satisfied that a temporary separation will severed [sic] a spousal or parental relationship.
[8] With respect, the Counsellor's notes provide no analysis to support the foregoing conclusion.
[9] It is worthy of note that the Counsellor apparently made no effort to interview one or more of the children who were available for interview during the course of the interview of the Applicant and Ms. Williams.
[10] In an affidavit filed by the Counsellor on this application for judicial review, the Counsellor attests:
...The children were born between 1990 and 1995 and are of school age. While the Applicant may assist in caring for the children I was satisfied that the wife was the primary care giver and primary financial support for the household.
[11] Once again both as to care giving and, to a lesser degree, financial support, the Counsellor fails to note the affidavit material that was before her. That being said, in the same affidavit, the Counsellor acknowledges that, in her notes of interview, she under-reported the number of months that the Applicant had been employed since his arrival in Canada by almost one third. In the final paragraph of her affidavit, the Counsellor attests:
In examining the totality of the evidence provided by the Applicant, and his wife through counsel and at interview and considered [sic] the best interests of the children, but having regard to the potentially favourable H & C factors I was not satisfied that undeserved, unusual or disproportionate hardship would result if the husband sought landing in the normal course.
[12] The result on this application for judicial review will turn solely on the Counsellor's evaluation of the best interests of the children although a number of other issues are raised on the material before the Court.
[13] In Hawthorne v. Canada (Minister of Citizenship and Immigration), Justice Décary, for the majority, wrote at paragraph [4]:
The "best interests of the child" are 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 her parent's removal from Canada or her own voluntary departure should she wish to accompany her parent abroad. Such benefits and hardship are two sides of the same coin, the coin being the best interests of the child.
[14] Justice Décary continued at paragraph [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.
[15] Justice Evans, concurring in the result, and adopting the phrase "alert, alive and sensitive" from the majority reasons of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), wrote at paragraph [32] of the reasons in Hawthorne:
... Rather, the interests of the child must be "well identified and defined" ... and "examined ... with a great deal of attention" ... . For, as the Supreme Court has made clear, the best interests of the child are "an important factor" and must be given "substantial weight" ... in the exercise of discretion under subsection 114(2). [citations omitted]
Justice Evans' reference to subsection 114(2) is of course to that provision of the Immigration Act. That provision has been superceded by subsection 25(1) of the Immigration and Refugee Protection Act which, while carrying forward the discretionary authority of the Minister to grant landing from within Canada on humanitarian and compassionate grounds, specifically incorporates an obligation to take into account the best interests of a child directly affected by the considerations there before the Minister.
[16] At paragraph [44] of Hawthorne, Justice Evans concluded that, on the facts before him, the Officer's, here the Counsellor's, treatment of the issues concerning the child, here the children, satisfied him that the Officer was not "alert, alive and sensitive" to the child's best interests. I reach the same conclusion here. The Applicant's and Ms. Williams' four (4) children have not lived for long in their relatively short lives without some positive influence from the Applicant. The only evidence from the children themselves is that, at least in the years following the Applicant's incarceration in 1997, that incarceration flowing from his last criminal conviction, his positive influence has been substantially more than minimal. That evidence is confirmed by Ms. Williams who attests that, in the absence of the Applicant, she could not support their four (4) children and her fifth child and that she would have to resort to welfare.
[17] I am satisfied that a substantially more thorough-going analysis on the part of the Counsellor then is demonstrated by the materials before the Court would be required to meet the "best interests of the children" requirement on the facts of this matter.
[18] Counsel for the Respondent noted the burden that conclusions such as the one that I have reached here places on the Respondent. Once again, In Hawthorne, Justice Evans responded succinctly to this concern. He wrote at paragraph [52]:
The requirement that officers' reasons clearly demonstrate that the best interests of an affected child have received careful attention no doubt imposes an administrative burden. But this is as it should be. Rigorous process requirements are fully justified for the determination of subsection 114(2) applications that may adversely affect the welfare of children with the right to reside in Canada: vital interests of the vulnerable are at stake and opportunities for substantive judicial review are limited.
[19] All of the foregoing being said, it must be acknowledged that the Applicant, based on the material before the Court, apparently adopted a remarkably cavalier attitude towards providing information and materials requested by the Counsellor that would have supported his application for landing from within Canada. To the extent that this is true, he would appear to not only have put in jeopardy his application to apply for landing from within Canada, he would appear to have also put in jeopardy the best interests of his children.
[20] This application for judicial review will be allowed. At the close of the hearing of the application, counsel were advised of what the outcome would be. They were consulted on the issue of whether or not a serious question of general importance arises on the facts of this matter that would warrant certification of a question. Neither counsel recommended certification. The Court concurs that no serious question of general importance arises. In the result, no question will be certified.
_______________________________________
J.F.C.
Ottawa, Ontario
November 9, 2004
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4910-03
STYLE OF CAUSE: CECIL ANTHONY LOVE
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: November 3, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR JUDGMENT BY: The Honourable Mr. Justice Gibson
DATED: November 9, 2004
APPEARANCES BY: Ms. Amina S.Sherazee
For the Applicant
Ms. Thomas For the Respondent
SOLICITORS OF RECORD:
Ms. Amina S. Sherazee For the Applicant
Barrister and Solicitor
Downtown Legal Services
655 Spadina Avenue
Toronto, Ontario, M5S 2H9
(416)934-4535
Morris Rosenberg For the Respondent
Deputy Attorney General of Canada
Per: Jamie Todd
Toronto, Ontario
(416)952-5009
See: The Applicant's affidavit, paragraphs 10 to 17, pages 113 and 114 of the Applicant's record; Ms. Williams' affidavit, sworn in the name of Laurel Love, paragraph 4, page 118 of the Applicant's record and the Applicant's eldest chid's affidavit, paragraphs 4 to 8, page 121 of the Applicant's record.
Respondent's Record, page 4, paragraph 16.
Respondent's Record, page 5, paragraph 23.
[2003] 2 F.C. 555 (F.C.A.).
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