Montreal

Disabled child can't stay in Canada: court

A French family denied permanent residence in Canada because their child is disabled could apply to stay in the country on humanitarian grounds, but that's still no guarantee they'll be accepted, says a spokesman for the immigration minister.

A French family denied permanent residence in Canada because their child is disabled could apply to stay in the country on humanitarian grounds, but that's still no guarantee they'll be accepted, says a spokesman for Immigration Minister Jason Kenney.

A lawyer for David and Sophie Barlagne said he would ask Kenney to intervene after the Federal Court ruled against a judicial review of the family's residency application in Montreal on Tuesday.

But Alykhan Velshi, a spokesman for Kenney, said it is not up to the minister to rule on the case.

"In our immigration system, independent, highly trained public servants — not politicians — make immigration decisions," he said.

"The immigration minister's role is to ensure that Canada's immigration laws are respected.

"In this particular case, the Federal Court upheld the government's application of our immigration law's provisions on individuals who have a serious health or medical condition that could pose an excessive demand on provincial health and social services."

However, he said the Barlagnes could apply for an exemption based on humanitarian and compassionate grounds, noting "each case is assessed on its own merits."

Velshi pointed out Quebec would also have to agree to admitting the Barlagnes on those grounds under the Canada-Quebec accord on immigration, and all relevant details from the Federal Court case would be considered.

Family devastated

The Barlagnes moved to Montreal from the French island of Guadeloupe five years ago with their daughter Rachel, who has cerebral palsy and is now seven, and another child.

Tuesday's court decision devastated the family, their lawyer said.

"We are really disappointed," said Stéphane Minson, one of the lawyers representing the Barlagnes.

Minson said the Barlagnes are considering appealing the court decision and will also ask Kenney directly to intervene

"He has the discretionary power in this kind of matter," said Minson.

Immigration hearings focused on whether David Barlagne, who came to Canada to set up a software development business, can pay for his daughter's medical care.

Barlagne and his family came to Canada after being encouraged by Canadian Embassy officials in Paris.

They granted him a temporary work visa and convinced him the country was a great place to establish his business.

Difficult case: judge

Federal Court judge Johanne Gauthier of Federal Court ruled that immigration agents had acted fairly in Barlagne's case.

She noted that Barlagne had submitted a detailed plan indicating that his daughter would attend a public institution and that the family would pay for some rehabilitation services.

These would include speech therapy, physiotherapy and occupational therapy.

Despite this, the child's condition was deemed to "constitute an excessive demand" on the social services resources of the province.

"In Quebec, unlike the situation in other provinces such as Ontario, special education services are provided at no cost, regardless of the parents' ability or willingness to pay, until the child reaches the age of 21," Gauthier wrote.

The judge acknowledged this was a hard case.

"Cases like this are always difficult to deal with, particularly when they involve a young girl who is intelligent and endearing, if not exceptional, according to those who know her," she wrote.

However, "judicial review is subject to specific rules that apply to all cases, even those where strong sympathy for the applicant and his family would favour a different outcome."

Minson said his clients still love Canada but are struggling with the decision and are "really, really, really disappointed."

"This is always difficult to bear, that your child is a burden," he said. "The child you love, the child you find wonderful — and there is a government that tells you your child is a burden to our society.

"This is not easy to bear."

Minson said his team is still studying the decision for grounds to appeal and he acknowledged the next phase will be difficult, saying he is "not really optimistic."

However, he said every avenue will be pursued.

"This is not only a judicial matter," he said. "This is a humanitarian matter."