The best interest of the children is a neutral factor, Medoza v cic (TA9-22011)

by Jenny Rokhline

I chose this case for its reasoning as it relates to the best interest of the children. This was a decision from an application for judicial review of a removal order. The Appellant was rendered inadmissible for misrepresentation pursuant to subsection 40(1)(a) of the IRPA.

The facts of this case are lengthy, thus I will only include the facts relevant to this posting’s purpose. The Appellant was a citizen of the Philippines where he had a legal wife and two children. He forged his documents and was sponsored under his fake identity to Canada and subsequently became permanent resident. He fathered two children with his Canadian sponsor in Canada. One of the Canadian children suffered from a learning disability. When his fraud was discovered, he was found inadmissible and a removal order was issued against him.

In the appeal of the removal order the appellant claimed that it is in the best interest of his Canadian children that he be permitted to stay in Canada. The Tribunal, however, disagreed.

The Appellant testified that his legal wife in the Philippines has her parents and siblings to help her with the children, whereas his current Canadian sponsor has not family in Canada to assist her. The Appellant also testified that he sends financial support to his children in the Philippines.

While the Tribunal recognized that the Appellant’s Canadian sponsor will experience hardship upon the Appellant’s removal, it indicated that “the best interests of the children require the consideration of the best interests of all the children,” including the two children the Appellant has in the Philippines. The Tribunal noted that the Canadian sponsor and her children can come and visit the Appellant in the Philippines, while there is no evidence that the children in the Philippines can visit their father in Canada.

The Tribunal further noted that while the Appellant’s children in the Philippines have grandparents and other relatives, they cannot replace a relationship with their father. As such, the Tribunal found that the best interest of the children factor was neutral, when the interest of the Canadian children is equally balanced against the interest of the children in the Philippines.

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