Kara Melissa Sharp and her husband, Alastair, haven’t had the luxury of living in the moment. After tucking their two children into bed, they couldn’t relax on the couch with a glass of wine. They were too busy researching, emailing, talking and sometimes dissolving into tears as they tried to find out what, if anything, they could do to stay in Canada, the country they’ve called home for the past seven years.
The globe-trotting couple arrived here in 2010 on a work visa for Alastair, who is a journalist. Initially, the move was just the next step in their adventures. Alastair was born in Australia and Kara in the United States; they met on an island in Malaysia and had their son, Sebastian, who has cerebral palsy, in the United Kingdom in 2008. They were living in Egypt when Alastair was offered a job in Toronto.
“Having lived internationally for several years, we were used to living in cities that boiled over with diversity,” Kara says, remembering their decision to relocate. “We wanted to find a diverse place to live.” They fell in love with Toronto, making friends and forming a new community.
After having their daughter, Tallula, in 2012, they decided to officially put down roots and started the long application process for permanent residency. What didn’t cross their minds was that this country might not want them.
That realization arrived in the form of what Immigration, Refugees and Citizenship Canada calls a “procedural fairness letter.” The Sharps learned that their entire family could be denied permanent residency on health grounds. Basically, the government believed that because of his disability, Sebastian could require more health and social service costs than the average Canadian, a situation called “excessive demand.”
“It was like a punch to the gut,” says Kara. “We deal with discrimination almost on a daily basis; anyone who has a disability, or who has a friend or family member with a disability, knows what it’s like to go about your regular daily routines and find obstacles. You get used to it. But when you get a letter that says, . . . ‘We’re going to tell you all the things wrong with [your son] and why that’s not good enough for us,’ it’s dehumanizing. It feels just awful.”
By circumstance, the Sharps have joined a chorus of voices, including
politicians, lawyers and advocates, who would like to change the
excessive demand clause in the Immigration Act because they feel it
discriminates against people with disabilities. The government is
finally listening: a parliamentary committee is reviewing the law, and
the immigration minister has stated he is committed to making changes.
Many would prefer if he threw out excessive demand all together — rather
than children with disabilities and their families who want to weave
themselves into the fabric of Canada.
The Immigration and
Refugee Protection Act lists a host of reasons why someone can be denied
a visa (a time-limited permit to visit, work or study here) or
permanent residency (the ability to live in the country for as long as
the person wants). They are mostly criminal in nature, such as being
charged with human rights violations, terrorism or espionage. But tucked
among the no-nos are “health grounds.” Canada can refuse applicants who
have a medical condition that is “likely to endanger public health or
public safety” or “cause excessive demands on health or social
services.” While the former is more about contagious diseases, the
latter often applies to those with disabilities.
demand] essentially excludes people with disabilities from any chance of
immigrating here,” says Allen Mankewich, a Winnipeg-based disability
advocate. “We don’t explicitly ban people with disabilities. But we
dress up disability with cost calculations.”
Officials have set a
dollar figure to determine what qualifies as excessive demand. As of
Jan. 1, 2017, the government established $6,655 as the amount the
average Canadian uses in health or social services each year. This “cost
threshold” is calculated using data from the Canadian Institute for
Health Information with additional estimates for social services such as
personal support care and special education. Any foreign national who
has a health condition that may require services that cost more than the
threshold could be denied entry or ordered to leave the country.
to the office of Ahmed Hussen, minister of Immigration, Refugees and
Citizenship, this provision “intends to protect health and social
services that are paid for by the public, including those that have
significant wait-lists for Canadians, while promoting refugee protection
and supporting family reunification.” This statement alludes to the
fact that UN Convention refugees are exempt, as are spouses and
dependent children sponsored by a Canadian citizen or permanent
That means Sebastian’s disability wouldn’t be a
consideration if either Kara or Alastair were already a citizen. But
that isn’t the case, and neither are they refugees. That left the couple
with another possible way around the provision: prove they can pay for
any of nine-year-old Sebastian’s health or social service needs beyond
the threshold. The government lacks systems for people like the Sharps
to make those payments, however, so immigration officials suggested Kara
and Alastair enrol Sebastian in private school and pay out-of-province
fees for his medical needs, just like people without an Ontario health
card. While the Sharps pay taxes, they were willing to relinquish their
son’s right to use the services they contribute toward.
disability was caused by negligence at his birth,” explains Kara, “so
we are in an ongoing case with the National Health Services in the U.K.
The hospital admitted their fault in his birth, so we will be granted
the cost of care for him.”
To settle their legal case, they need
permanent residency so the cost of Sebastian’s care can be determined
(health-care costs vary widely from country to country). But without a
settlement finalized, Kara worried they might not have enough to prove
to Canada that they can pay for the services Sebastian needs. Caught in
this nightmarish catch-22, Kara and Alastair tried to remain optimistic
while they waited to hear the government’s decision. “You’ve got to have
some hope,” says Kara. “But those moments when hope passes are
Minister Hussen’s office can’t comment on specific
cases, but a spokesperson did say that “no specific health condition
will result in an automatic refusal of an application.” The office said
that an “estimated figure” of 0.2 percent of applicants are denied each
year on the grounds of excessive demand. In October, CBC News reported
that 337 applicants were denied in 2016, down from 473 the year before.
an investigation published last summer, Global News reporters Andrew
Russell and Brian Hill raised questions over the accuracy of the cost
threshold, suggesting that Immigration Canada does not account for all
social services spending by the provinces. Russell and Hill estimate the
limit should be at least $7,404.
James Hicks is the national
co-ordinator for the Council of Canadians with Disabilities (CCD), and
he wasn’t surprised by Global’s findings. CCD has been lobbying the
government to change the excessive demand clause for 26 years. The
United Nations Convention on the Rights of Persons with Disabilities,
which Canada signed on to in 2010, clearly states that “parties shall
recognize the rights of persons with disabilities to liberty of
movement, to freedom to choose their residence and to a nationality, on
an equal basis with others.” Hicks believes excessive demand and its
cost threshold get in the way of that freedom.
“I don’t know
anybody who causes the medical system to pay out less than 6,000 and
some odd dollars,” Hicks says from his home in Ottawa. “It’s an amount
so low that almost anybody would spend that much, [so technically]
nobody should be able to immigrate. It really is a clause that has no
bearing in reality but is being used to deny a certain group of people. .
. . Personally, I think it’s one of the most discriminatory things the
Hicks is also concerned about the message the
policy sends here at home. “If you’re denying people because they’re
going to cost too much to assist them, you’re telling them that they’re
not going to have any worth here,” he says. “So Canadians with
disabilities get the same message. . . . You’re not contributing, you’re
a burden to the health-care system, you’re a burden on the social
services system. It’s a horrible message to send.”
The Warkentin family at Christmas. Daughter Karalynn sits in front between her parents, Jon and Karissa. Photo courtesy of Jon Warkentin
how Jon Warkentin and his wife, Karissa, felt in November 2016 when
they received a fairness letter because of their daughter’s disability.
The Warkentins and their five kids had moved from Colorado to Waterhen,
Man., in 2013 to fulfil a dream of owning and running a hunting and
They arrived on a work visa because getting
permanent residency can be a long process. “When you’re starting a
business and you have a real estate transaction that’s taking place,
nobody’s going to wait two years for you to purchase their property,”
says Jon. “Our plan was always to apply for permanent residency once we
got here. We just didn’t anticipate that we were going to have any
A year after they arrived, their youngest daughter,
Karalynn, who was two at the time, had a seizure. Doctors diagnosed her
with epilepsy. Later, her parents noticed she was slightly
developmentally delayed, which her physicians think may have been the
result of epilepsy.
Karalynn is now six and functions at about
the level of a four-year-old. She hasn’t had another seizure, nor is she
on any medication. She just requires a specialized education plan at
school. “She spends a lot of time with the educational assistant in her
classroom,” says Jon. “But the assistant isn’t just there for Karalynn.
She’s there for other students as well, and it’s a very small school.
There are only nine students in her kindergarten class.”
Warkentins went for the standard immigration medical exam, they brought
all of Karalynn’s health information. Jon says the doctor told them he
didn’t think they had anything to worry about. So they were shocked when
the letter arrived a year and a half later, informing them that their
permanent residency application was in question because Karalynn’s
education needs may be an excessive burden.
In response, the
couple put together a package, including letters from Karalynn’s
principal and school division treasurer, explaining that the little girl
doesn’t require any more services than other children her age and that,
if she ever did, the family would pay for it. Jon thought it was just a
formality and was confident everything would be fine. But it wasn’t. A
letter of denial arrived last April, clearly stating the decision was
final and even suggesting Karalynn might not be able to visit the
country in the future. The letter said they had until November, which is
when their visa was set to expire, to pack up and leave.
Warkentins hired a lawyer to file a federal appeal, essentially taking
the government to court. After some media attention this past summer,
they received a glimmer of good news: immigration had reopened their
file to review their case. They hope this means they are getting a
“I understand the cost, and I understand what
they’re trying to do and trying to protect the taxpayers of Canada,”
says Jon. “We certainly aren’t coming here to take advantage of anybody.
I’m not trying to come here and pull one over on the government and get
some special deal. We just wanted to make a life here.”
with the Warkentins’ case, the government is currently assessing
excessive demand in its entirety. Minister Hussen’s office has been
meeting with provincial and territorial governments, since any
alterations to the policy will impact health and social services
budgets, which fall under their jurisdictions.
Hussen spoke before the parliamentary committee conducting the review.
“From a principled perspective, the current excessive demand provision
policy simply does not align with our country’s values of inclusion of
persons with disabilities in Canadian society.” He said all options are
being considered, including getting rid of the provision entirely, but
he was vague about what the change might look like. A date has not been
given for when the review will be complete, but a spokesperson said this
is expected to happen “in the near future.”
Schweitzer is not confident the current review will bring about real
change. She is representing Mercedes Benitez, who arrived from the
Philippines nine years ago and works as a live-in caregiver for an
elderly man in the Toronto area. Benitez had to leave her husband and
two sons behind. In the hope of reuniting with her loved ones, she
applied for permanent residency for herself and her family back in 2010,
only to learn that they might be denied because her 18-year-old son has
an intellectual disability.
Schweitzer worries the government
is still approaching the provision from a dollar and cents perspective.
“They need to rethink how they look at this, because our law is saying,
‘You disabled person, you are nothing but a liability to Canada, so
we’re going to look at how much of a liability you are.’ It is
completely and utterly failing to acknowledge that there are
contributions to our society that disabled people can make in all kinds
of ways,” says Schweitzer. “I suppose the most blatant would be to look
at somebody like [theoretical physicist] Stephen Hawking, who would
[likely] be medically inadmissible to Canada.”
Last summer, Kara
and Alastair Sharp predicted the government’s review wouldn’t be
complete before their visa expired on Oct. 21. With time ticking, the
possibility of having to move started to loom. They’d largely been able
to hide the situation from Sebastian and Tallula, even asking doctors
not to bring it up in front of the kids. But if their application was
denied, they’d have to broach the subject.
“If in fact we do have
to leave, of course we’ll talk about it,” Kara said in July. “We’ll
talk about why and what’s wrong with it. We’ll talk about the
discrimination of the government, but we will not talk about it being
because of Sebastian’s disabilities, because that’s not the reason. The
reason is because the law discriminates against Sebastian and other kids
and adults like him.”
Thankfully, that conversation didn’t
happen. The family’s confirmation of permanent residency arrived in the
mail in early October, four and a half years after starting the process
and just a week before their visa expired. The letter informing them of
the good news didn’t include any details on whether or not they’ll have
to pay for services or if Sebastian can stay at his public school.
Whatever the requirements, the family is just relieved to know Canada is
now officially home. “I feel like I can dream again,” says Kara. “I
feel like there’s possibility — and we have a choice in what that looks
Editor’s note: In early December, the Canadian government approved the Warkentin family's application for permanent residency.
Kristy Woudstra is a freelance writer in Toronto.
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