Best interests of the child (BIOC)
Statutory definition
The Supreme Court in Baker v Canada [1999] 2 SCR 817 held that the BIOC is a "primary" (though not determinative) consideration in H&C applications. Subsequent decisions have confirmed that officers must be "alert, alive, and sensitive" to the BIOC and must weigh it meaningfully — not just note its existence. IRPA s 25(1.3) provides that H&C assessment must take into account the best interests of a child directly affected by the decision.
Explanation
The BIOC principle is central to many immigration decisions involving families with children, particularly where removal would separate children from a parent or require children to move to an unfamiliar country. The BIOC is not a trump card — it is weighed against other factors including enforcement and program integrity. However, a failure to meaningfully consider the BIOC is a ground for judicial review (procedural unfairness or unreasonableness). Practitioners should include detailed submissions on the BIOC in any H&C application involving affected children.