Monday, April 1, 2013

Where do families turn for services?

By Sheila Jennings

Canadian newspapers are making the public aware of the unmet needs of children with disabilities. According to the Toronto Star's recent Autism Project series: “Our journalists have uncovered an alarming array of policy omissions and holes in social services…”

Many of you are following the investigation by Ontario ombudsman AndrĂ© Marin into over 500 parent complaints about the lack of services for adults with developmental disabilities. “Quite clearly, what we’ve heard is that we’re failing in a pretty major way to support a very vulnerable segment of society,” Marin said in a related Star story. “It’s surprising that this is happening in 2013.”

According to a coalition of Ontario families and agencies, almost 9,000 families are on a wait list for Ontario’s Special Services at Home funding, with about 4,000 waiting for its adult equivalent—Passport.

Clearly there are policy issues that need to be looked at for young people of all ages with disabilities in Ontario.

In Canada, provinces and territories set their own public policies—and service eligibility for children with disabilities—and no two provinces have the same provisions. Alberta, for example, has quite different policy offerings for children with disabilities than Ontario. So bringing about national change in policy for Canadian children with disabilities is a complex issue.

Unfortunately, more than one scholar has noted that when children’s agendas are examined nationally, the concerns of children with disabilities are often excluded.

Families have tried to find solutions to these problems in a variety of ways. One has been by bringing cases to courts and tribunals. Unfortunately, many of the court cases brought over the last decade or so have not met with the wished for results—including for First Nations families who were in need of funding for children with severe disabilities.

Some court and tribunal decisions explain that courts and tribunals are limited in their ability to decide on policy matters about how programs are funded. They say they don't have the expert information at their fingertips when asked to make decisions about complex policies, and that making these decisions is the role of the legislature.

One recent case that’s excited parents and child advocates alike is the 2012 Supreme Court of Canada case Moore v. British Columbia (Education). It's been described by one Canadian expert as the most important human rights case in Canada in the last 10 years.

The Moore case involved a B.C. Human Rights Tribunal complaint filed by Frederick Moore on behalf of his son Jeffrey, alleging that the North Vancouver School Board discriminated against Jeffrey, who had severe dyslexia, by failing to provide the special education services he needed.

At the time, school officials told the Moore family that their son needed intensive intervention in order to learn, but that they couldn't provide it because the school district was closing its diagnostic learning disability centre.

The Moores withdrew Jeffrey from public school and placed him in a private school at great cost to the family.

At the Supreme Court of Canada, the tribunal’s finding of discrimination against Jeffrey by the school district was upheld. The school district has to reimburse the family for the costs of his private education as well as damages for Jeffrey’s harmful experiences.

In the Moore decision, Madam Justice Rosalie Abella said: “Adequate special education… is not a dispensable luxury. For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children in British Columbia.”

The Moore case offers hope. It underlines the obligation of schools towards students with severe learning disabilities and as such is a step forward in advancing the rights of these students.

Sheila Jennings is a lawyer working towards her PhD at Osgoode Hall Law School in Toronto. Her research project considers the rights of children with severe disabilities and their mothers to support. Sheila is the single mother of three young adults, two of whom grew up with significant health conditions.