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Ontario family denied residency over son’s Down syndrome

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Ontario family denied residency over son’s Down syndrome

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Nico Montoya, a 13-year-old boy with Down syndrome, at his home with mother Alejandra Garcia, and his sister Tania at their home in Richmond Hill, Ont., on Saturday. (Mark Blinch / THE CANADIAN PRESS)

An Ontario university professor who has applied for permanent residency in Canada is facing the prospect of having to leave the country because his son has Down syndrome.

Citizenship and Immigration Canada has told Felipe Montoya that his son's condition makes him inadmissible to Canada because of the potential burden the child would place on the health care system.

Immigration lawyers say that when a whole family applies for residency, a finding of inadmissibility against one of its members winds up applying to everyone on the application.

Montoya takes exception to CIC's ruling, saying his 13-year-old son is currently making use of the same publicly available resources as his daughter, who does not have a disability.

He also questions CIC's calculation of how much money his son could cost Canadian taxpayers, adding that he and his wife have been among those taxpayers since arriving in the country four years ago.

CIC said it could not comment on the specific case, which Montoya says has potential implications for families besides his own.

"We consider it to be in contradiction to the charter for many reasons, and we think that it's based on outdated views of so-called disabilities and that it needs to be looked at again and brought up to date," Montoya said in a telephone interview.

The family's saga began when Montoya moved to Canada from his native Costa Rica to take up a position at Toronto's York University. He remains on staff there as a full-time, tenured professor of environmental studies.

Three years ago, Montoya filed an application for permanent residency for himself, his wife and his two children.

The fact that his son Nicolas had Down syndrome was disclosed at the outset and confirmed by doctors the family visited for the medical exams required for the application process. Montoya said Nicolas, along with all the rest of the family, was found to be perfectly healthy.

Montoya hoped the medical clearance would help finalize his application, but a letter from CIC told a different story.

"I have determined that your family member Nicolas Montoya is a person whose health condition might reasonably be expected to cause excessive demand on social services in Canada," reads a letter sent to Montoya. "An excessive demand is a demand for which the anticipated costs exceed the average Canadian per capita health and social services costs, which is currently set at $6,387."

The CIC letter references reports that Nicolas functions at the level of a three-year-old. It goes on to estimate that special education supports for Nicolas would cost between $20,000 and $25,000 a year, a finding Montoya questions.

He said CIC provided no detailed breakdown of how the estimate was reached, adding that his son did not require special accommodations because he joined a pre-existing community classroom in his local public school.

"There were no extra provisions for him. He joined a classroom just like my daughter did," Montoya said. "My daughter is not deemed inadmissible because of her use of state services, yet Nico is."

Cases like Montoya's are surprisingly common, according to Toronto immigration lawyer Henry Chang.

Canada's current immigration laws around family members with chronic conditions are very strict, he said, adding the sweeping rules can even apply to people who are not physically living in Canada.

"Let's say you have a child who's in university in the United States who isn't going to be immigrating to Canada with the rest of the family, but they have cancer and they're having treatment right now. That could theoretically result in a whole family being barred for medical grounds," Chang said. "It sounds crazy. If you're not an immigration lawyer, there's no logic to this."

Chang said the Montoyas still have a few strategies available to them if they want to fight the finding. They can file documents challenging CIC's calculations of Nicolas' financial needs or appeal on humanitarian grounds.

They could also present evidence that they're able and willing to shoulder some of Nicolas' prospective costs themselves, a move Montoya likens to being asked to pay twice for the same service since he's already paying tax.

Montoya said the family is braced for a number of outcomes, including the possibility that they will have to return to Costa Rica.

In the meantime, however, he hopes his family's situation will raise questions about the ways in which society views certain disabilities.

"There's no facts that establish that he will cost the state anything. The only fact I imagine that they are basing it on is this idea ... that Down syndrome people are all sick and require intensive care," he said. "This is a stigma, and it's not based on the individual case."

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Ontario family denied residency over son's Down syndrome | Toronto Star

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An Ontario university professor who has applied for permanent residency in Canada is facing the prospect of having to leave the country because his son has Down syndrome. Citizenship and Immigration Canada has told Felipe Montoya that his son's condition makes him inadmissible to Canada because of the potential burden the child would place on the health care system.

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Family in ‘shock’ after permanent residency denied by Immigration Canada due to daughter’s disability

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Family in ‘shock’ after permanent residency denied by Immigration Canada due to daughter’s disability

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In the small Manitoba community of Waterhen, population 169, Jon and Karissa Warkentin are fighting for the right to stay in Canada and run their business.

"It had always been our dream to someday have a business of our own," Jon said. "We wanted a community too, a place for our kids to go to school, so that they could have friends ... And this place almost checked off all of the boxes."
WATCH: Canada's controversial immigration policy regarding the disabled is once again in the spotlight
Originally from Colorado, Jon, his wife and their four kids settled in Waterhen in 2013.

They bought the Harvest Lodge, roughly four hours north of Winnipeg, and have since invested tens of thousands of dollars into the business which caters to deer and duck hunters and anglers looking to catch walleye and pike. They also employ four people part-time on a seasonal basis.

"There are a lot of places in the States when you go to a public hunting area and it's literally like a parking lot," he told Global News. "People want to come here and get away from the busyness of their life and see what real wilderness is really like, and we have that, and that's what's exciting. It's just a beautiful country."

But their dream could be shattered after Immigration, Refugees and Citizenship Canada denied the family's application for permanent residency because their 6-year-old daughter, Karalynn, has an intellectual disability.

Known as "medical inadmissibility" Immigration Canada says Karalynn's condition would place "excessive demand" upon the province's publicly-funded education system. As a result, the entire family's application for permanent residency has been denied.

Global News reached out to the federal government for comment but was told by a spokesperson for Immigration Minister Ahmed Hussen that the minister was travelling overseas and unavailable for an interview. His office has, however, said the government is reviewing measures surrounding excessive demand and medical inadmissibility, but has not provided specific details on the scope of this review or when any changes might be announced.
WATCH: Canada rejects hundreds of immigrants based on incomplete data, Global News investigation finds
At the age of two, more than a year after Jon and Karissa purchased the hunting lodge, Karalynn was diagnosed with epilepsy following a series of seizures. She was placed on anti-seizure medication and has had no incidents during the past two years. But as Karalynn aged, the family began to notice she was developmentally delayed and had trouble speaking.

"The epilepsy never came up with immigration," Jon said, referring to the reason their application was denied. "As far as medication goes, she's not on any medication at all right now. She's basically kind of grown out of that, which according to the neurologist, happens a lot with kids."

In denying the family's application, Immigration Canada said Karalynn was diagnosed with Global Developmental Delay and attention deficit hyperactivity disorder (ADHD), citing a report prepared by a school psychologist.

However, Global News reviewed this report and determined the psychologist did not, in fact, diagnose Karalynn with ADHD. Instead, he said she had developmental delay, generalized epilepsy and displayed signs of "possible ADHD."

"A school psychologist that thought that maybe it was a possibility but she was never diagnosed with it," Jon said. "He just made notes that that may be a possibility, not a diagnosis."
Listen: Callers to Winnipeg's 680 CJOB upset about choice to deny family's application for permanent residency
What is excessive demand?

The Manitoba family has been caught up in a section of Canada's immigration act designed to ensure newcomers to the country do not cause "excessive demand" on publicly funded health and social service programs. Immigration Canada sets the limit for "excessive demand" at $6,655 a year, the apparent average annual health and social service spending per Canadian. This means if the costs of caring for a person's condition are higher than this limit, the applicant and all family members are denied permanent residency. If the costs are lower, and they're an otherwise viable candidate, they're let in.

Following a Global News investigation that revealed major flaws in the way Canadian immigration officials assess hundreds of applications each year, the Warkentins' and nearly a dozen other families from across the country came forward to say they, too, have been affected by a policy that lawyers and experts have called "discriminatory."

In some cases families were turned away because a child had autism or Down's syndrome.

"I was shocked. Honestly, I felt sick. I was going between nausea, disbelief," Karissa told Global News "Like what are we going to do? We've invested our life into this community and this business we love what we do. Our customers keep coming back, year after year, and our kids enjoy the lifestyle we have out here too. And I thought, it's not like our daughter has excessive daily medical needs or nursing care, and I just thought this can't be true."

READ MORE: Canada's immigration system discriminates against children with disabilities, say families

In a letter denying their permanent residency, immigration officials said Karalynn's condition would be too "expensive" and a burden on provincial social services. The letter did not list any costs associated with additional care for Karalynn.

A Global investigation revealed the figures used by Immigration Canada to determine "excessive demand" and the denial of permanent residency does not accurately reflect the cost of providing health and social services in the country.

Global's reporting found the government doesn't accurately account for up to $40-billion in annual social service spending - or roughly $1,105 a year per Canadian. This means the $6,655 limit used to deny applicants should be at least $7,404 if all social service spending is accounted for accurately.
WATCH: Immigration lawyer says family is devastated after permanent residency application is denied
Immigration lawyer Alastair Clarke, who is representing the Warkertin's, said the family has been devastated by the government's decision to deny them permanent residency.

"We're dealing with a six-year-old girl. We're dealing with a family who uprooted themselves from Colorado in order to build a business in rural Manitoba. They have established themselves as part of the community up there, and they're trying to build their business and develop the region," Clarke said. "The little girl is devastated, she doesn't understand what's going on, they don't know what they did wrong, and they are trying to deal with it the best they can."

Clarke said immigration officials made several errors when assessing the family's application, including not taking into account their contribution to the local economy and unfounded claims about excessive costs on the local school.

"They came through the Manitoba Provincial Nominee Program," said Clarke. "They got a certificate from the province that basically says 'We want you to come to Manitoba. We recognize your business acumen, we recognize your business experience, we recognize the investments you're going to bring to this province."

Community, school board support family

WATCH ABOVE: Manitoba school community supports Warkentin family

In support of their application, Jon and Karissa submitted letters to Immigration Canada from the local mayor, school principal and regional school board.

Reg Klassen, chief superintendent of Frontier School Division, told Global News that Karalynn's presence at the school placed no additional burden on province's education system.

"Quite simply, this child is in our school division and so therefore we educate this student regardless of any needs etc. It's our job," he said. "Whether this student is here or someplace else that won't change our funding."

According to Klassen, this is because special education funding in Manitoba is awarded on a "block" basis, meaning the overall budget will not change as a result of admitting an individual student.
WATCH: Advocates, community leaders react to investigation into 'hugely flawed' immigration system
Klassen also said it's important to include all students in the classroom - regardless of ability.

"Inclusion in the classroom is, for me, not anything we are going to debate. We are simply going to include our students and help everybody understand the strengths and weaknesses that we as individual human beings bring to the classroom," said Klassen. "My hope would be they are going to be able to stay and continue to contribute to our society and way of life."

Canada a 'welcoming' nation

Statements made by Prime Minister Justin Trudeau - including those made on Parliament Hill during Canada 150 celebrations - speak of a nation open to everyone, a welcoming country where "diversity is our strength" and where we aspire to build a more "inclusive society."

But families and disability advocates say the government has fallen short when it comes to honouring these commitments with respect to persons with disabilities. In fact, they say policies such as "excessive demand" and "medical inadmissibility" unfairly target persons with disabilities.

WATCH: Disability rights advocate says immigration policy 'not inclusive'

Jenna Roy, a disability rights advocate, recently participated in the consultation process for the federal government's proposed accessibility legislation. She says that while the government is seeking to be a world-leader in disability rights, there are still many laws in Canada that systematically discriminate against persons with disabilities. According to Roy, this includes the provisions around medical inadmissibility and excessive demand.

"You're denied and told your burden is too large," said Roy, who supports repealing excessive demand. "[You're] then given the chance to appeal through a charity model process, to be seen as an acceptable burden ... I don't really think that's a good message to be sending folks who want to come to Canada, where we're preaching equality and inclusion."

The Prime Minister's Office refused to comment on this story. In an emailed statement, a spokesperson for Immigration Minister Ahmed Hussen said "a small number of applicants, about 0.2% each year, are found inadmissible due to excessive demand."

"In response to the findings of the November 2015 Evaluation of the Health Screening and Notification Program, the Government of Canada has been conducting a full review of the excessive demand provision," said spokesperson Hursh Jaswal. "This review is to ensure that excessive demand policy continues to facilitate immigration while protecting the health of Canadians and their health-care system. When the results of this review are finalized and the Government has determined a preferred direction, IRCC will proceed with that direction."

Meanwhile, the Warkentins' plans for expanding their business in Manitoba have been placed on hold while their future in Canada remains uncertain. The family is currently here on temporary working visas set to expire this November, at which point they could face deportation. The denial letter from Immigration Canada said six-year-old Karalynn's inadmissibility could also extend to visiting Canada, and that she should "not attempt to enter Canada without seeking advice from a Canadian visa office."

"It's kind of hurtful. It's kind of a little bit of a slap in the face where you just feel like you're not good enough," Jon said.

"I understand that immigration has their rules and they have to have policies, but this one seems completely outdated and unfair," Karissa said. "Anybody that has somebody in their family with a developmental problem or behavioural problem says that's not all of who they are, that's not one-hundred percent of their being."
-Video editing by Emanuela Campanella and Derek Heraldo Have you been denied Permanent Residency due to a family member being deemed medically inadmissible? If yes, please contact Global News with your story.

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immigration refugees and citizenship canada

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Family in 'shock' after permanent residency denied by Immigration Canada due to daughter's disability

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In the small Manitoba community of Waterhen, population 169, Jon and Karissa Warkentin are fighting for the right to stay in Canada and run their business. "It had always been our dream to someday have a business of our own," Jon said.

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Disabled son deemed 'medically inadmissible' to join mother in Canada

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Disabled son deemed 'medically inadmissible' to join mother in Canada

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Mercedes Benitez, right, with, from left, her husband Romeo and her sons Bill and Harold. Immigration officials estimated that Harold could require support services worth as much as $115,000 over five years. (FAMILY PHOTO)

Mercedes Benitez is faced with the choice of returning to her developmentally delayed son in the Philippines or staying in Canada and fulfilling her family's immigrant dream without him.

To return home, the temporary foreign worker would lose her job and the much needed income in Canada - not to mention a chance to become a permanent resident in the country.

By staying here, she could continue to be the breadwinner but be separated from Harold, 18, who has been deemed inadmissible by Canadian immigration officials because of his developmental disabilities, and her husband, Romeo, their son's primary caregiver.

"It is my dream to bring my family to Canada for a better life," said Benitez, 46, who came to Canada in 2008 under the caregiver program and applied for permanent residency for her and her family after she met the two-year live-in employment requirement in 2010. "It is heartbreaking."

In late 2015, after a long delay due to the immigration backlog, the Toronto woman finally got a letter from immigration officials warning her that her application might be refused as Harold was assessed to have the functioning of a 4-year-old and officials feared his disability would result in excessive demand on medical and social services.

Immigration, Refugees and Citizenship Canada said it did not collect statistics on immigration applications rejected based exclusively on the "excessive demand" provision of immigration law.

The department said the policy is in place to ensure newcomers would not cause an excessive burden on Canada but would not comment on Benitez's case, saying the family has been granted a 30-day extension to submit further documentation.

Although experts say anecdotal evidence shows the number of "excessive demand" cases is small compared to the overall volume of immigration applications, the cases repeatedly pop up, with families pleading for compassion and seeking redress.

Carleton University social work professor Roy Hanes, author of a study on Canadian immigration and people with disabilities, said the excessive demand clause has been part of the country's immigration law since as early as 1869, though the language has evolved through the years.

Hanes said the issue of excessive demand is complicated by the fact that federal officials decide on immigration cases but it's the provinces and territories that provide services such as health care and education. "The question is what excessive demand means," Hanes said.

In the cases of Montoya and Talosig, and now Benitez, it is measured by the "anticipated costs" of how much support the dependant with a disability would need. The annual threshold set by the Immigration Department is $6,327.

A Supreme Court decision in 2005 examined the issue of excessive demand and inadmissibility and involved the families of David Ralph Hilewitz, an immigration applicant from South Africa, and Dirk Cornelis Jan de Jong from Holland. Each man had a child with intellectual disabilities.

Both families were willing to pay for their children's support services but the Immigration Department rejected both applications. Ultimately, the Supreme Court ruled that the applicants' financial circumstances were relevant in the decision-making and sent both cases back for reconsideration. The decision raises the issue of whether the system favours the wealthy applicants.

"Little has changed through the years on this issue. The challenge is trying to figure out the cost in everything, as health is very complicated," said immigration lawyer Steven Meurrens, adding that it's especially troublesome for immigration applicants already in Canada having paid taxes but getting refused these services for their needy dependants.

With her income, Benitez said she could not afford to pay for the support services such as vocational training, sheltered employment programs and access to day programs that immigration officials estimated to cost between $85,000 and $115,000 over five years.

In fact, the woman could not afford to hire a lawyer to represent her and ended up requesting that immigration officials remove Harold and Romeo from the family's permanent residency application, based on what she says was advice from someone at a community centre, which she now disagrees with.

"I thought it was the only way that I could have a chance of staying in Canada to continue to support my family," said Benitez, who now looks after a 93-year-old widower. "It made me very sad to ask to remove my husband and youngest son from my application, but it did not seem that there was any other option."

On January 30, immigration officials emailed Benitez warning her that the family's application was going to be refused and asking her to respond to the letter with an alternate "care plan" for their consideration.

"The number of medical inadmissibility is extremely small," said Tracy Heffernan, a staff lawyer at Parkdale Community Legal Services, which stepped in to assist the Benitez family after learning about the case in late February.

"It is not like people are going to be flooding to Canada to use our medical and social services."

In the past, different groups based on ethnicity and country of origin were barred from immigrating to Canada, but people with disabilities continue to face the barrier, said Heffernan, whose clinic has launched a social media campaign to rally for support for the Benitez.

"Canada has signed all these international covenants of human rights. This is a clear violation of what's laid out in these conventions," she said. "At some point, Canada is going to look back and recognize what a shameful history we have had in treating people with disability."

John Rae, a vice-chair of the Council of Canadians with Disabilities, said Ottawa cannot address the issue of medical inadmissibility by responding to individual cases after they become public in the media. A legislative change to remove the provision is much preferred, he said.

"People with disability face a great degree of stigma. The broader society views us in a negative way too often. We are assumed to be a drain of Canada's health and social services," said Rae. "For us, other people's assumption is one of the greatest barriers we face."

The Parkdale legal clinic has asked the Immigration Department to reconsider Benitez's case but has yet to hear from officials.

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Disabled son deemed 'medically inadmissible' to join mother in Canada | Toronto Star

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Mercedes Benitez is faced with the choice of returning to her developmentally delayed son in the Philippines or staying in Canada and fulfilling her family's immigrant dream without him. To return home, the temporary foreign worker would lose her job and the much needed income in Canada - not to mention a chance to become a permanent resident in the country.

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(Ontario Ministry of Community and Social Services

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