By Richard Blackwell for the Toronto Globe and Mail.
The Ontario government yesterday began an appeal of a court ruling that declared unconstitutional its limits on funding of autism programs for children, as parents of autistic kids demonstrated outside the courthouse demanding that the province drop the action.
The government wants Ontario’s Court of Appeal to overturn an April ruling by Madam Justice Frances Kiteleyof Ontario Superior Court. She said the province violated the rights of autistic schoolchildren when they were cut off treatment programs in the education system at the age of six.
Judge Kiteley said the province discriminated against the children, based on their age and disability. Cutting them out of the provincial program when they hit six reinforces the stereotype that children over that age are “virtually unredeemable,” she said.
She awarded damages to the families of about 30 children, and opened the door for hundreds of parents of autistic children to get treatment within the education system.
Parents who were overjoyed with her decision were soon disappointed when the government said it would launch an appeal — which is being heard this week by a panel of three judges.
Just before the court session began at Osgoode Hall in downtown Toronto, about 50 parents of autistic children and their supporters demonstrated in front of the building. They chanted “Stop the Appeal” and held signs saying “It’s time to help all children with autism,” then marched from the courthouse to the provincial government buildings at Queen’s Park.
When asked in the provincial legislature why the province is appealing Judge Kiteley’s decision, Attorney-General Michael Bryant said “it is the government and the legislature that is in the best position to provide those services, and not lawyers, counsel and courts.”
The Toronto protest was the seventh demonstration by parents of autistic children across the province. Others took place in Ottawa, Sarnia, Burlington, Richmond Hill, Whitby and Orillia.
Bruce McIntosh, father of a five-year-old autistic boy and one of the demonstration’s organizers, said cutting children off the Intensive Early Intervention Program (IEIP) when they hit six years old is clearly discriminatory.
His son will get to stay in the program, under Judge Kiteley’s ruling, at least until the appeals court renders its decision.
The therapy in question is referred to interchangeably as ABA or IBI.
It is a system of behaviour modification that uses positive reinforcement to teach autistic children language skills and how to play appropriately. The treatment can cost up to $60,000 a year for each child.
Autism affects from two to six children in every 1,000. Children and adults with autism typically have difficulty concentrating and processing information, and have a tough time with normal social interaction.
Susan Fentie, who has two autistic sons aged 12 and 10, said it was like being “slapped in the face” when the government said it would appeal Judge Kiteley’s ruling. She said autistic children need the intervention programs to “survive and grow and learn in life and be independent.”
The Ontario government’s lawyer, Robert Charney, opened the appeal hearing yesterday by saying the IEIP program was directed to kids under age six because “scientific evidence and expert advice” suggest this group is most likely to benefit.
The appeals court judges will hear from the families’ lawyer Mary Eberts beginning tomorrow.