How Canada’s Policies Fail to Protect Migrant Children

(Photo by CBP Photography via Wikimedia Commons/Public Domain)

Since 2003, the United Nations Committee on the Rights of the Child has told Canada, across four separate reviews, that it needs a national policy to protect migrant children. Canada still does not have one. 

Instead, children who are seeking asylum themselves, or those whose family members are threatened with deportation and family separation, are left to navigate a patchwork system of rights protections varying from province to province. 

As deportations increase after the passing of Bill C-12, and immigration wait times for asylum claims and humanitarian and compassionate visas stretch on, children are increasingly at risk of deportation, family separation, insecurity, and disruptions to education and employment. With this, migrant children and youth with precarious legal status are particularly at risk as Canada fundamentally lacks a unified policy framework to safeguard their rights.

Bill C-12 and the Status of Migrant Children

On May 19, 2026, Immigration, Refugees, and Citizenship Canada (IRCC) quietly introduced a temporary public policy exempting unaccompanied minors from two of Bill C-12’s new asylum ineligibility rules. Those rules are the one-year filing restriction and the 14-day rule for irregular border crossings.  

Under Bill C-12, individuals are not able to file a refugee claim if it has been more than one year since they arrived in Canada, regardless of whether they have left the country and returned. If they are arriving at a land border, they must file their claim within 14 days. 

The one-year rule is retroactive, going back as far as 2020. This means that if someone visited Canada for unrelated reasons, such as to visit family or vacation, and later became a refugee due to a change in circumstances, they would be ineligible to file a refugee claim anytime after one year from their first date of entry. 

However, the exemption that was introduced for children arriving in Canada alone means that they have a greater chance of having their asylum claims heard, instead of being denied before they have the chance to present their case. 

This exemption came after Quebec Senator Suze Youance’s amendment to build similar exceptions for minors arriving in Canada with their parents into law, which was defeated in a Senate committee prior to Bill C-12’s passing. 

This new policy is a temporary protection at the discretion of Minister Lena Diab, that could be removed at any time, instead of being entrenched in law. The new policy only protects unaccompanied minors, instead of child claimants more generally, as was Senator Youance’s suggestion.

A protection written into law, as Senator Younce proposed, has greater longevity and would be more stable than a ministerial temporary policy. Currently, this exemption for unaccompanied minors can be revoked as easily as it was introduced.

A Pattern the UN Has Flagged for Two Decades 

In October 2003, the UN Committee on the Rights of the Child stated it was “especially concerned” at Canada’s absence of a national policy on unaccompanied asylum-seeking children, the lack of a consistent approach by federal authorities, and the absence of even a definition of “separated child.” The Committee recommended that Canada “adopt and implement a national policy on separated children seeking asylum in Canada.”

That was over 20 years ago. So what, if anything, has changed since? 

According to the Canadian Council for Refugees’ ongoing advocacy, very little. The organization still cites many of the same unresolved issues it raised alongside the Committee two decades ago, with one notable exception: immigration detention of children has improved. However, it continues to call for largely the same thing it asked for in the early 2000s: a national framework for protecting the rights of migrant children that extends across provincial and territorial borders. 

When the Committee reviewed Canada again in 2022, it raised many of the same underlying concerns, urging Canada to “urgently revise its policy of detaining children who are asylum-seeking, refugees and/or migrants,” to process unaccompanied children’s claims “in a positive, humane and expeditious manner,” and to create an independent mechanism to oversee and investigate the Canada Border Services Agency, one that immigration detainees could actually appeal to. 

The ‘Best Interests’ of the Child

Part of this problem is the application of the one principle that is supposed to fill these gaps. The best interests of the child (BIOC) is supposed to be the foundational guiding principles for immigration and family law in Canada. It is often relied on heavily in humanitarian and compassionate applications. In theory, it should ensure a child’s welfare is considered independently of the immigration status of the adults caring for them.

In practice, BIOC is not a single, consistently applied policy. Its origins lie in the 1991 Canadian ratification of the UN Convention on the Rights of the Child which states that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.”

There is no one standardized process for how BIOC should be assessed, no consistent training requirement, and no mechanism to ensure it is weighed the same way from one officer to another. Two cases, years apart, demonstrate the variations in BIOC considerations.

What Does the Consideration of ‘Best Interests’ Look Like in Practice?

In Kanthasamy v. Canada (2015), a Tamil refugee claimant arrived in Canada as a teenager after fleeing detention in Sri Lanka. The immigration officer’s entire assessment of his best interests amounted to a single paragraph concluding he should return to Sri Lanka. The Supreme Court called the officer’s analysis “perfunctory,” ruling that BIOC assessments must be “highly contextual” and reflect a child’s actual lived circumstances rather than general assumptions about resilience. 

Four years later, an immigration officer reviewing Regina mother Christina Schiller’s application acknowledged that deporting her to Hungary, and separating her from her four-year-old Canadian son, would cause him “emotional hardship,” but concluded it would not “sever the bonds” between them. This is reasoning that her lawyer said echoes near-identical language used in refusal after refusal. 

There is also the question of whether it is appropriate for a CBSA officer – a representative of the same organization seeking a child or child’s family’s deportation – to be the one responsible for considering what is in the child’s ‘best interest’.

Canada is required to submit its next report to the UN Committee on the Rights of the Child by January 2027, after which it will again receive a formal review. This report will land almost a year after Bill C-12 has come into effect, significantly restricting the rights of asylum seekers in Canada. 

Whose Responsibility? Federal-Provincial Divide

Due to Canada’s federalist system, which splits government responsibilities between provinces/territories and the federal government, there can be conflict over which level of government is responsible for upholding certain obligations. Immigration and refugee determination are federal; however, child welfare, legal aid, healthcare, and education are all provincial. 

This divide even changes who is considered to be a child in any given region. Federally, anyone under 18 is a minor for refugee determination purposes, but the legal definition of a “minor” for child protection varies by province, with child protection service eligibility varying from 16-19. 

Take, for example, an unaccompanied 17-year-old who is considered a child in their refugee determination case. In a province like Ontario, they are ineligible for foster care, housing support, or child-welfare legal aid. But in British Columbia, where the age of majority is 19, they would have access to more resources. The Canadian Bar Association has highlighted the resulting “inconsistency in providing legal protection and representation to child refugees.”  The Canadian Immigration Lawyers Association has also flagged what they see as a grey area in when a youth stops being considered a child when an officer is considering BIOC.

A national policy framework protecting the rights of children would set a base standard for access to services, making sure that vulnerable migrant children have their rights protected across the country.

The Current Human Cost

Since the passing of Bill C-12,  the CBC has reported an increase in family separation in Quebec, with CBSA data showing that 55% of deportations in the first four months of 2026 have taken place in the province. Specifically, there has been an increase in the deportations of parents where their young Canadian-born children are permitted to stay in Canada. Lawyers highlight that this contradicts Canada’s obligations under the UN Convention on the Rights of the Child. 

In Montreal, the case of Miguel and Andrea’s family illustrates what that can look like. Miguel, a 22-year-old apprentice carpenter and the family’s sole earner, faced deportation to Mexico, where he says cartel members have threatened his life. Their son was seven months old at the time, and Andrea herself was waiting for the results of a pre-removal risk assessment of her own. 

Miguel was set to be deported 10 days before he would become eligible to apply for a pre-removal risk assessment, his last chance to demonstrate the risk he would face if deported. A Federal Court judge granted him a last-minute stay just one day before his scheduled deportation, ruling that removing him would cause irreparable harm to his family given his status as the primary earner and his baby’s heart condition. The stay bought Miguel three months, not permanent status. 

Another case from Quebec that received media attention in the same week was that of a mother from Guinea who was taken into immigration detention and did not have access to her infant daughter for 5 weeks, while she was still breastfeeding.

The temporary exemption from May 2026 may protect unaccompanied children who are just arriving, allowing IRCC to say it is considering the rights of children under Bill C-12. 

But this exemption does impact children who are being separated from parents through deportation. For them, there is no ministerial policy or framework – temporary or otherwise – protecting their right to remain with their family.

A Federal Court associate judge has now grouped 39 constitutional challenges to Bill C-12, coordinated by the Canadian Association of Refugee Lawyers and the Canadian Immigration Lawyers Association, with Charter hearings an estimated 12–18 months out. 

Who is Ultimately Responsible for Migrant Children? 

For decades, a migrant child’s protection in Canada has depended on which province they are in, which officer reviews their file, and whether there are temporary ministerial policies in place to protect their rights, rather than a solid, permanent framework to ensure their rights are protected.

Currently, there is no answer to the question of who, ultimately, is responsible for migrant children’s welfare, so long as different elements are split under the Canadian federalist system.

There is still potential for more amendments to Bill C-12, as a second wave of regulations had been open for comment until July 20, 2026. While no changes have been announced yet, this could have been an opportunity to extend the exemption for unaccompanied minors into permanent policy, rather than a measure that the minister can change at will.

Edited by Chelsea Bean