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.

In a separate case last year, York University professor Felipe Montoya and his family had their immigration application denied because 13-year-old Nicolas Montoya’s Down syndrome would place an excessive burden on the Canadian health and social services.

And in 2015, Karen Talosig, a caregiver from the Philippines in British Columbia, encountered a similar problem when immigration refused to let her 14-year-old daughter, Jazmine, to join her in Canada because the girl is deaf.

In both cases, Ottawa reversed the decisions through “ministerial intervention” on compassionate grounds after the families went public with their dilemmas.

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.

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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.