Moley Jwentz Louissaint and his
father, Jaccin Louissaint, sought judicial review after a visa officer refused
Moley Jwentz’s sponsored permanent residence application. The child was
excluded from the family class under paragraph 117(9)(d) of the IRPR because
his father had not declared him during his own immigration process. The
applicants did not challenge that exclusion, but argued that humanitarian and
compassionate relief should have been granted. The Federal Court found the
officer’s best interests of the child analysis unreasonable.
Key Principle
When humanitarian and
compassionate relief is sought for a child, the child’s best interests must be
well identified, defined and examined with considerable attention in light of
all the evidence. An officer must be alert, alive and sensitive to those interests
and assess the circumstances from the child’s perspective. It is insufficient
to rely selectively on evidence while failing to meaningfully consider evidence
of significant parental and family relationships.
Background
Moley Jwentz was born in Haiti in
2007 from Jaccin’s extramarital relationship. Jaccin remained married to
Mariette, with whom he had three older sons. The applicants maintained that
Moley Jwentz was nevertheless treated as a full member of Jaccin’s family and
regarded Mariette as a second mother.
After the 2010 Haitian
earthquake, Jaccin, Mariette and their three sons immigrated to Canada through
family reunification. Moley Jwentz remained in Haiti because his biological
mother considered him too young to leave and refused to consent to his departure.
When she later consented, Jaccin
sponsored Moley Jwentz. Because the child had not previously been declared, he
was excluded under paragraph 117(9)(d). The applicants therefore sought an
exemption under section 25 of the IRPA based principally on Moley Jwentz’s best
interests.
Court Findings
• Best Interests Analysis
Required Rigorous Examination
The Court confirmed that a
child’s best interests are not automatically determinative, but must receive
considerable weight. Where legislation expressly requires consideration of
those interests, they become a particularly significant focus and must be examined
carefully in their full factual context.
• Evidence Showed a More
Significant Family Relationship
The officer placed substantial
weight on Moley Jwentz never having lived permanently with Jaccin, Mariette and
his half-brothers. However, evidence before the officer described weekend
visits with his brothers, Jaccin’s constant attachment, Mariette’s role as a
second mother, continuing financial support, visits to Haiti and Moley Jwentz’s
distress when separated from his Canadian family.
The Court found that the officer
did not explain how this evidence could be reconciled with the conclusion that
the relationships were weak.
• Officer Failed to Consider
the Child’s Perspective
The deficient assessment affected
whether family reunification might be justified despite the regulatory
exclusion. It also prevented meaningful consideration of the emotional
consequences of continued separation and of the alternative available to Moley
Jwentz: living in Canada with his father, Mariette and his half-brothers. The
Court specifically found that the officer failed to assess the child’s
interests from Moley Jwentz’s own perspective.
Outcome
The Federal Court granted
judicial review, vacated the refusal and remitted the permanent residence
application to another officer for redetermination. No question was certified.
Case
Citation:
Louissaint v. Canada (Citizenship and Immigration), 2018 FC 1077 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
