York University prof denied residency over son with Down syndrome returning to Canada

Ottawa has overturned a decision that saw an Ontario university professor denied permanent residency in Canada because his son has Down Syndrome.

• York University professor denied permanent residency over son's Down syndrome
• Family whose son has Down syndrome can appeal immigration 'inadmissibility,' Ottawa says

Felipe Montoya had been working at York University as a tenured professor of environmental studies when he and his family submitted their application to Citizenship and Immigration Canada.

The family's bid was denied on the grounds that 13-year-old Nicolas Montoya has Down Syndrome and would place an excessive burden on the Canadian health-care system.

Rules stipulate that if one member of a group application is inadmissible for permanent residency, the ruling applies to everyone else as well.

But Montoya says the decision handed down earlier this year was overturned last week through "ministerial intervention" on compassionate grounds.

Montoya and his family returned to their native Costa Rica in June, but say they will now begin the process of preparing to move back. The Ministry of Citizenship and Immigration did not immediately respond to a request for comment.

Montoya said he and his family are pleased to be able to return to the country where his children have come of age, but says he plans to keep pushing for reforms to disability laws and policies both before and after he returns to Canadian soil.

"We are still committed to taking advantage of our situation and our case to be able to contribute to the wider disability community in Canada, and not because it's our idea but because the charter says so," Montoya said in a telephone interview from Costa Rica. "It seems like it's our duty to make the laws congruent with the charter."

Son would put 'excessive demand' on social services, prof told

Montoya's immigration woes began three years ago when he filed an application for permanent residency for himself, his wife and their two children.

The fact that 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.

Montoya felt the rejection of Nicolas' application was discriminatory in part because it was made on the basis of his disability rather than his physical health.

He also took exception to a common route of appeal in such cases, which sees parents agree to shoulder all additional costs that exceed the government threshold.

"We were not willing to be charged for something we had already been paying for," Montoya said of that approach. "As Canadian tax payers, we believed we were entitled to the services we'd been paying for."

Montoya laid out his arguments in a letter sent in response to his declined application and launched a public awareness campaign for his son's situation.

Eventually officials with the ministry reached out directly and invited him to Ottawa to discuss both his case and proposed policy reforms.

At that point, however, Montoya said there was no indication that the inadmissibility ruling would be overturned. He and his wife had already begun the process of leaving Canada, including giving notice on their rental home, booking movers and making alternate work arrangements with York to head up an environmental project in Costa Rica.

They returned there on June 26, but found themselves facing a different future just over a month later.

'Justice and means of inclusion'

Montoya received a letter on Aug. 5 indicating that he and his family were being granted "relief from inadmissibility" under section 25-1-1 of the Immigration and Refugee Protection Act, which states that a foreign national permanent resident may be granted status if "the minister is of the opinion that it is justified by humanitarian and compassionate considerations."

Montoya said he was of two minds about the exemption, but ultimately accepted it and expressed gratitude. However, he said he does not believe this is the way to resolve similar cases in the future.

"I think the disability community doesn't deserve compassionate and humanitarian considerations, but rather justice and means of inclusion into society," he said.