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Mother of autistic boy looking at options after top court refuses appeal

THE CANADIAN PRESS  December 4, 2008
OTTAWA - Families who have battled the Ontario government and school boards for years over treatment for children with autism said Thursday they'll seek legal advice on where to go next after the country's top court denied them a hearing.  In a decision released without comment, the Supreme Court of Canada refused permission for the families to appeal earlier rulings that put strict limits on their lawsuit.   The families said they were disappointed and would meet with their lawyers in the "coming days to determine next steps."  "I don't know that I feel that I have a choice," said Taline Sagharian, whose 12-year-old son Christopher has autism.  "This is my son and his rights and I feel that I have to stand up for him and for other children like him."  The five families say children with autism are suffering discrimination because the province and school boards fail to provide expensive therapies for the kids in public schools.  "Obviously, the court's decision today was a letdown for us," Sagharian said.  "For almost a decade now, families of children with autism have continued to face an impossible choice between prohibitively expensive private autism programs and an unresponsive public school system."

In 2007, Ontario Superior Court threw out several of the key claims brought by the families at a preliminary stage.  The provincial Court of Appeal ruled earlier this year that some of the claims could proceed, but only after they are drastically reworked.  "We do have some (options), and I don't know how many, other pieces of the case left, that we can go back to the Superior Court for," Sagharian said.  The five families are trying to sue the government and the boards for negligence and damages, accusing them of failing to provide or properly fund the specialized autism therapies - known as intensive behavioural intervention (IBI) and applied behaviour analysis (ABA) - in schools.  The therapies for autism, a poorly understood neurological condition that causes developmental disability and behaviour problems, can cost between $30,000 to $80,000 a year for each child.  The parents, who say they are forced to go to financial "extremes," filed a $1.25-billion lawsuit in 2004.

Fahlman v. CLBC Appeal Dismissed

In the Court of Appeal December 15th, 2006, the Governments Appeal of the Justice Chamberlists decision in Fahlman v. CLBC was dismissed. The reasons for dismissal are now posted and are available at: http://www.courts.gov.bc.ca/jdb-txt/ca/07/00/2007bcca0015.htm . The Judges uphold the earlier decision of Justices Chamberlist which orders CLBC to reconsider Neil Fahlmans eligibility for benefits based on the criteria in the Act as it currently reads.

Background information: Eligibility for Community Living Services

We reported previously that BC Supreme Court Justice Eric Chamberlist found that Community Living BC does not have the authority to adopt IQ related criteria to determine eligibility for services (judicial review decision June 12 - Neil Fahlman vs CLBC as represented by MCFD). The court ordered CLBC to reconsider Neil Fahlmans eligibility for benefits, after he was denied service on the grounds of having an IQ higher than 70. A copy of the judgment can be found at: www.courts.gov.bc.ca/jdb-txt/sc/06/09/2006bcsc0900.htm.

BCACL is determining next steps and talking with CLBC to seek a long-term solution for individuals and families facing similar circumstances.

Court of Appeal rules autism therapy age cut-off is not discriminatory
TORONTO (CP) - The provincial government's refusal to provide expensive therapy for all autistic children older than five is not age discrimination, the Ontario Court of Appeal ruled Friday, but some parents are already preparing to continue their legal fight. Mary Eberts, who represents 28 families in the case, said Friday "is a bleak day" for her clients, who have been involved in the litigation for more than four years. The decision by the Ontario Court of Appeal - worth tens of millions of dollars to taxpayers - came after a lower court ruled in favour of the parents, who are forced to pay tens of thousands of dollars a year for treatment. At stake was funding for a specialized autism therapy known either as intensive behavioural intervention (IBI) or applied behavioural analysis (ABA), which is based on the idea that autistic children can improve their behaviour through repetitive actions. The government began funding the therapy for autistic kids aged two to five in 2000. Children were cut off from  government money when they turned six. The cost for the therapy ranges from $30,000 to $80,000 per year per child, depending on the number of hours of treatment needed per week. The original ruling by the Ontario Superior Court found the cut-off to be discriminatory on the basis of age, and therefore a violation of the Charter of Rights and Freedoms. In its appeal, the government argued that the intensive one-on-one process works best for children under the age of six, and that other forms of treatment work better for older children.

The Court of Appeal agreed. "Exclusion of (older autistic children) because of their age from a program so particularly designed to assist another disadvantaged group does not deny their human dignity or devalue their worth as members of Canadian society," the ruling stated.  Children and Youth Services Minister Mary Anne Chambers said that since July 2005 - about five months after the original court ruling - the province has provided funding to treat any autistic child over the age of six if they are assessed as needing it. "The ruling actually doesn't change anything that we have been doing," Chambers said.

The Appeal Court also ruled the children were not discriminated against because of their disability. "We are left with profound admiration and respect for the struggle of (autistic children) and their families," the ruling stated. "However . . . the charter cannot guarantee success in such a struggle, nor can it require the state to provide whatever assistance is needed to achieve that success, as compelling as that may be on moral or policy grounds." 

But it is on those grounds that the government should be taking action, said Eberts, adding the government's treatment plan "doesn't do the whole job."  A release sent out by the Ministry of Child and Youth Services and the Ministry of Education states that since April 2004, the number of children waiting for the treatment has been reduced by 68 per cent. But information obtained by Shelley Martel, the NDP provincial representative for Nickel Belt, states that the number of eligible children who were on the waiting list went from 89 in March 2004 to 753 in March 2006. "These families should have never been dragged through court to get the services and support their autistic children need in the province of Ontario," she said.

Autism is a poorly understood disorder but is believed to be caused by an underlying physical dysfunction within the brain or central nervous system. Its symptoms are impaired social function, lowered communications skills and behavioural problems. About 8,000 kids under the age of 18 have been diagnosed with autism in the province.

Eberts asked her clients not talk about an appeal right away, adding they will carefully examine the ruling and plan their next move in the coming weeks. But she said a lawyer for another family has indicated an appeal is already being planned. 

© The Canadian Press, 2006

Ontario to appeal ruling on autism funding

CTV.ca News Staff.  A court ruling ordering the Ontario government to pay for a very expensive autism treatment for children over age six will be appealed, the province said Monday. "Every time a court says we require that you spend money in this way, they don't tell us where we're supposed to get the money,'' Premier Dalton McGuinty told reporters on Monday. McGuinty was reacting to an Ontario Superior Court ruling issued Friday, but it was Attorney General Michael Bryant who made the decision to appeal the ruling. A judge ruled that denying the 35 children represented in the lawsuit a treatment known as applied behavioural analysis on the basis of age violated their constitutional rights. The treatment is a very intensive, one-on-one therapy. Autistic kids improve their behaviour by doing repetitive actions. It can cost from $30,000 to $80,000 per year per child. Autistic children typically have impaired social functioning, poor communication skills and behavioural problems such as disruptive outbursts. Although a non-autistic child can learn to tie his or her shoes in about six attempts, an autistic child of the same age would require about 1,000 attempts. Ontario started paying for the treatment in 2000 for children between the ages of two and five. The policy had been to limit the therapy to those six years old and younger. Brenda Deskin's son Michael is autistic. She is one of the lawsuit's plaintiffs. "We were thrilled. We really felt (hopeful) that it was finally over and our kids were going to get what they deserved," she told CTV News. While the province has said it will appeal, Deskin vowed to also continue the battle. "I will keep on fighting, and we will continue doing what we have to do for our little guy over there," she said. McGuinty was sympathetic to families with autistic children, but noted the autistic represent a very small proportion of those children who have learning disabilities. "There are many, many other families whose children are affected by other kinds of learning disabilities," he said. "The issue then becomes, do they take their cases to court and demand that the province of Ontario make certain expenditures to help out those families." While the opposition heckled the Liberals Monday for breaking an election promise to fund the autism treatment past age six, the government said it has increased funding for autism treatment. CTV News Toronto reporter Paul Bliss said the autism ruling, if upheld, could cost the province $60 million per year. Ontario's current provincial deficit is estimated at $6 billion. In B.C., the provincial government lost a similar case at the trial and appeal court levels. But then the Supreme Court of Canada ruled the government wasn't obligated under the Canada Health Act to provide the treatment. However, the Ontario case argued the funding should come from the school system.

Supreme Court of Canada Decision on Auton Case

As you have heard the Supreme Court has delivered its decision on the Auton case, rejecting the claim that the provinces are guilty of discrimination.  Now that court challenges have been exhausted, It's time to concentrate on the political arena.  More to come on this.  In the meantime, make your position known to your MLA and your MP.  What do you envision VSCA doing in this regard?

Read the decision of the court.   CTV News Story.   

Nov 19, 2004.  The Province will continue to support children with autism, following the Supreme Court of Canada ruling today that dismissed a constitutional challenge to government decisions with respect to funding treatment for autism, said Attorney General Geoff Plant today.  More.

Human Rights Tribunal

Delays for autism tribunal frustrating

Autism Intervention Funding

At present no changes are expected, however that is subject to change.  

We've all heard stories in the press about possible cuts to provincial autism funding.  The Minister has publicly stated that the Ministry will honour it's  commitment to protect vulnerable children and adults.  Results of the Treasury Board meeting are in:  funding for autism related programs will be maintained.  No cuts will take place in this area.  

 

 

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