Federal Court of Appeal Decisions

     A-441-95

CORAM:      STRAYER J.A.

B E T W E E N:

     MAVIS BAKER

     Appellant

     " and "

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

STRAYER J.A.

     On October 1, 1996 an application was filed on behalf of children of the appellant for an order adding them as parties in this appeal and to receive further evidence. I dismissed the application and awarded costs of $200 against the applicant.

     While it seemed apparent that such an application could not succeed I thought it might be useful for the future that I give written reasons.

     The appeal itself is from a decision of Simpson J. of the Trial Division issued on June 26, 1995. In it she refused an application for judicial review seeking to quash the negative decision of an Immigration Officer of April 18, 1994 on a request for relief, on humanitarian and compassionate grounds, from a deportation order issued against the appellant on December 29, 1992. While the motions judge dismissed the application for judicial review she certified the following question for consideration on appeal.

Given that the Immigration Act does not expressly incorporate the language of Canada's international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?

     I dismissed the application for the addition of parties because I was not persuaded that there was any need for the presence of the children's representative in order for the matters actually put in issue by the questions to be effectively and completely determined. The evidence which the representative sought to put in pertained to the actual circumstances of the children which was not an issue raised by the certified question; and the legal arguments sought to be made essentially paralleled those already in the appellant's memorandum.¹

     I awarded costs against the applicant because of the patently futile and untimely nature of the application. The applicant is associated with the Canadian Foundation for Children, Youth and the Law. Another representative of this same Foundation applied on May 10, 1995 by a Rule 324 motion to the Trial Division for the children to be added there as parties in this judicial review proceeding. This application was refused by Richard J. on June 9, 1995, basing his decision on the established jurisprudence of this Court to the effect that children had no interest legally protected vis à vis the Government of Canada in respect of a parent's deportation. The children's representative did not seek to appeal that decision nor could she have: subsection 83(1) of the Immigration Act precludes any appeal from a decision on a matter arising under that Act unless there is certified a "serious question of general importance". None was certified. Nevertheless another associate of the same Foundation brought this similar motion here, based on the very same affidavits plus one additional affidavit dated May 25, 1995, for the children to be added as parties to the appeal. This is clearly an attempt to achieve indirectly what subsection 83(1) precludes: in effect a review of the Trial Division decision which had refused the addition of the children as parties to this proceeding. The application also ran exactly counter to the jurisprudence of this Court on the legal position of children in deportation proceedings against parents.² One would expect that any serious effort to overcome such an obstacle would be launched well in advance of the hearing date fixed for the appeal.

     However the application was untimely and, because of the prolongation of the appeal it would have involved if granted, vexatious. The extreme delay in filing this application must be underlined. As noted, the children's representative failed on June 9, 1995 in one application to have them added as parties in the judicial review. Subsequently, on June 26, 1995 the application for judicial review was dismissed. It will be noted that these events took place some fifteen months prior to the date of October 9, 1996, fixed for the hearing of the appeal from Simpson J.'s order. In the meantime the appellant launched an appeal based on the certified question and on June 28, 1996 the date of October 9 was fixed for the hearing of the appeal. But it was not until September 23, almost fifteen months after Simpson J.'s decision, that the children's representative approached the Court to have this application, for addition of parties to the appeal, heard at the opening of the appeal hearing on October 9. This obliged the respondent to file extensive material on very short notice. If the children had been added at this stage, it would undoubtedly have prolonged the hearing beyond the time previously allocated some three and one half months earlier. In one of her memoranda filed on the application to have the children added as parties, their representative stated:

It is submitted that as added parties, the Child Applicants would have the opportunity to file affidavit evidence, relevant social science materials and to make written and oral submissions. Rule 1102 governs the receipt of evidence by the Court of Appeal.

It is submitted that as intervenors, under Rule 1102 of the Federal Court Rules, the Child Applicants could file affidavit evidence. It is also customary for intervenors to file relevant social science evidence. As intervenors the child applicants would request the opportunity to make oral and written submissions.

Thus their addition would have necessitated an adjournment with consequent delays and inconvenience to the Court and the respondent. The respondent took the position that there should be costs on this belated motion and in my view they were fully warranted in these circumstances.

OTTAWA, ONTARIO     

NOVEMBER 29, 1996                          J.A.

__________________

1      The only additional jurisprudence of significance referred to in the representative's written submissions were Supreme Court of Canada decisions in B. v. Children's Aid Society [1995] 1 S.C.R. 315 and Goertz v. Gordon [1996] 2 S.C.R. 27. Both these cases simply affirm that what is in the best interests of the child may not always be left for decision by the parents or a custodial parent. This Court has fully acknowledged that whether a deported parent takes a Canadian-born child abroad is a matter which might require outside intervention, in the best interests of the child: see Langner v. M.E.I. (1995) 184 N.R. 230 at 234. It does not mean that an Immigration Officer should be responsible for deciding what is in the best interests of a child, in the course of an administrative decision under section 114(2) of the Immigration Act.

2      Langner v. M.E.I. (1995) 184 N.R. 230, leave to appeal to S.C.C. refused August 17, 1995; Naredo et al v. M.E.I. (1995) 184 N.R. 382; Alouache v. M.E.I. (A-681-95, decision of April 26, 1996).