A Seamless Approach to Service Delivery in Legal Aid: Fulfilling a Promise or Maintaining a Myth?

Appendix B: "Mom is Here Illegal"

The Denial of OHIP to Canadian Children Based on Parental Immigration Status: A Violation of International Human Rights?

John Dent*

In Ontario, Canadian-born children are denied health coverage on the basis of their parents' immigration status. Parkdale Community Legal Services has many clients whose children, citizens by birthright, have been denied OHIP coverage solely because the parents have not normalized their immigration status. In many cases, the tragic result is that the children fail to receive necessary health services.

The policy of denying health coverage to Canadian children solely on the basis of their parent's immigration status is arguably contrary to the Ontario Health Insurance Act and regulations, the Charter of Rights and Freedoms, and to Canada's obligations under international law. This paper focuses on the latter issue: Does the denial of health coverage to such children violate our obligations under international law, specifically the U.N. Convention on the Rights of the Child?

In order to arrive at an answer to this question, the paper first reviews the current practice concerning the granting of OHIP to children of immigrants, the relevant provincial law, and regulations. International law is introduced as a potential remedy through a discussion of the relevant sources of international law, the utility of international law in domestic litigation, and the value of international oversight of Canada's human rights performance. An analysis of the compatibility of the Ontario practice with Canada's obligations under the relevant international law is then undertaken, with specific emphasis on the right to non-discrimination and the substantive right to health guaranteed in the Convention on the Rights of the Child.

Throughout the paper, the case of Florencia and Anna is used to illustrate the impact and legality of the OHIP eligibility rules for Canadian children whose parents are without legal status in Canada. Florencia arrived in Canada four years ago from Colombia with her husband, who made a refugee claim. While the claim was in process, the family was covered by the Interim Federal Health Plan. The claim was denied, but Florencia and her family were afraid to return to Colombia. Meanwhile, Florencia's husband, Enrique, had found work, and Anna was born. They hope to remain in Canada, and plan to file an application for landing on humanitarian and compassionate grounds as soon as their English is better and they have saved the money for the processing and Right of Landing Fees (totalling approximately $3000). When Florencia applied for OHIP coverage for Anna, she was turned down by the worker in the OHIP office. The worker said that since Florencia was not a permanent resident or a citizen herself, her daughter was ineligible for OHIP. On the eligibility form she wrote "mom is here illegal." Florencia was told it did not matter that Anna was a Canadian citizen. She was afraid to argue, since she thought the OHIP worker might report her to Immigration Canada. She is very frightened, because Anna has developed a heart condition, and may need surgery. It would be very expensive, and she could never afford to pay that much money herself. She came to Parkdale, hoping there was something we could do for her.

Through careful analysis of the provisions of the relevant international law, as interpreted by academic commentators and by U.N. treaty monitoring bodies, the policy of denying OHIP coverage to Anna and other children in her situation is found to violate the substantive right to health under the U.N. Convention on the Rights of the Child (CRC) and the U.N. International Covenant on Economic, Social, and Cultural Rights (ICESCR). This policy is also found to violate the right to non-discrimination guaranteed by the CRC, the ICESCR, and the U.N. International Covenant on Civil and Political Rights (ICCPR).

Specifically, the minimum core content of the right to health in international law may be said to preclude the denial to children for financial reasons of their right to access necessary health care. The gaps in the health services available to uninsured people in Ontario mean that, in some cases, this minimum core content will not be met. The case of Florencia and Anna illustrates the potentially harmful consequences that may arise from the denial of preventative health services.

Fulfilling the right to health requires States Parties to do more than meet the minimum core content. Rather, the CRC specifically requires States Parties to implement the right to health to the maximum extent of their available resources. This contingent standard places the highest obligation on wealthy countries such as Canada. The denial of OHIP coverage to a vulnerable segment of the population in the absence of any pressing shortage of resources renders such a retrogressive policy contrary to the obligations under the CRC.

The singling out of Canadian children of immigrants without status for exclusion from provincial health coverage constitutes a violation of the principle of non-discrimination, both when considered from a theoretical perspective, and from the more pragmatic perspective employed by the monitoring committees of the U.N. human rights treaties.

With respect to the theoretical approach, the denial of OHIP to Canadian children on the basis of their parents' immigration status constitutes discrimination as it is unrelated to the children's capabilities or potentialities. The approach to non-discrimination by U.N. treaty-monitoring bodies has been criticized as lacking in theoretical rigour, but their emphasis on the "reasonableness" of the differentiation does provide the advantage of allowing for inclusion in the analysis of a broader range of factors. Accordingly, the arguments presented in favour of a finding of discrimination include consideration of the legitimacy of the object of the legislative changes that restricted OHIP eligibility, the proportionality and rationality of the means used to achieve these objectives, the harm wreaked on the children effected, and the incompatibility of this policy with the obligation under the CRC to always give primary consideration to the 'best interests of the child.'

The Committee on the Rights of the Child will be issuing its second report on Canada's performance under the CRC in the upcoming year. This paper argues that the government will have much to answer for in its treatment of Canadian children whose parents are without status. That a province as wealthy as Ontario has chosen to pursue a policy which violates our international commitment to ensure without discrimination the right to health to all children, constitutes a profound embarrassment and serves to undermine Canada's stature in human rights on the global stage.