Parental Undocumented Status as An Analogous Ground of Discrimination

Abstract

This article contends that parental undocumented status can and should be recognized as an analogous ground of discrimination under section 15 of the Canadian Charter of Rights and Freedoms. The argument proceeds in two parts. Part I provides a glimpse of the legislative and administrative framework underlying the prejudicial treatment of Canadian children with undocumented filiation, analyzing the health insurance plans of Quebec and Ontario (A), and the federal Canada Child Benefit program (B) as case studies. The picture that emerges is a recurring pattern of administrative reasoning that ties children's eligibility for vital benefits to their parents' legal residency in the country, precluding or limiting the access of those with undocumented filiation. Against this backdrop, Part II considers the constitutional analysis that should be used under section 15 when considering parental undocumented status as a ground of discrimination. It first sets out the major decisions of the Supreme Court of Canada recognizing analogous grounds, and explains how such cases have contributed to a contextual, multi-factorial approach that accounts for variables beyond narrow immutability (A). Lack of control and chronicity, political powerlessness against the majoritarian process, economic and developmental vulnerability, and intersections with race and age emerge as distinct indicia of parental undocumented status as an analogous ground (B). The analysis draws, in part, on child development theories to emphasize the extraordinary circumstances of children in mixed-status families, and the distinct influence of parental 'undocumentedness' on their developmental needs. Part II lastly looks into international human rights standards for persuasive guidance, where the differential treatment of children on the basis of their parent's immigration status is both expressly prohibited and recognized as a recurring target of discrimination (C).