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“We consider it to be in contradiction to the charter for many reasons, and we think that it’s based on outdated views of so-called disabilities and that it needs to be looked at again and brought up to date,” Montoya said in a telephone interview.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