Local families win battle

BY MARGARET BRUINEMAN

Friday, March 19, 2004 – 07:00

Local News – An Ontario court has chastised the provincial government for the way it has treated two local families with special needs children.

“Monumental” funding decisions to provide for the autistic children’s needs by government workers weren’t fair to the Niebergs and the Cloughs, said three judges of the divisional court.

About 600 Ontario families who applied for the same “secret” funding could expect to have their proposals reviewed as a result of the decision, said a lawyer specializing in special needs cases.

“The duty of procedural fairness was breached,” said judicial review panel judges S.J. Benotto, J. Dunn and J. McCombs, in a decision released Thursday.

“The families provided detailed proposals. Their legitimate expectations would include some objective criteria in the decision-making process. Instead, they were simply told what they were being awarded. There was no apparent criteria or procedure.”

The court quashed the funding decisions made by the Ontario Ministry of Community, Family and Children’s Services for the two families over each of the past three years.

It ordered the ministry to review those proposals.

The court heard Susan Clough of Barrie outlined all of her 10-year-old son’s needs in 2001, and asked the government for $119,963. A Barrie Community Living worker helped her put the proposal together.

She did receive a cheque for $11,072, just 10 per cent of the amount she had asked for. Altogether, she received $22,662 that year.

The process was repeated in 2002, and again in 2003.

Her son, Jared, has autism and he’s been diagnosed with pervasive development disorder. He doesn’t speak and needs supervision and assistance for all basic functions.

Clough figures she spends up to $5,000 every year on incontinence supplies alone. She struggles to try to access some of the costly treatment that could help him, and said the government money she does get doesn’t go very far.

Leonard Nieberg of Innisfil went through a similar process. In 2001, he put together a proposal for $122,508 with the help of a worker from Catulpa Tamarac. He amended it twice, first to $91,680, and then $74,434.

He received $11,280. All funding, combined, provided him with $23,580.

Like Clough, the same thing happened during each of the following two years.

His 15-year-old son, Ryan, also has autism. Nieberg has stayed at home to care for his son, who no longer attends school because his behaviour is deemed too disruptive.

“The importance of the decisions to the families was monumental,” said the court in its decision.

“They are not wealthy. The evidence demonstrates the day-to-day struggles necessary to care for these children and the financial and emotional costs to the family.”

Both families were delighted with the decision Thursday.

Both have long said the provincial government doesn’t properly care for its needy. Nieberg said he was forced to quit his job to care for his son and he now survives on welfare.

The final impact of the decision is yet to be determined. The families know only that their funding proposals are back on the table and any new decision must follow some basic guidelines outlined by the court Thursday. How it ultimately impacts them, and others, remains to be seen.

“Hopefully it’s going to mean more funding,” said Clough. “The government is required to go over everything.

“It’s phenomenal.”

The provincial attorney general ministry said it must review the decision before it makes comment or decides on whether or not to appeal.

After years of struggling with several governmental bodies, Nieberg said he feels a sense of relief and some surprise.

“I am stunned,” he said. “I feel like the world was taken right off my shoulders.”

Bill Holder, a lawyer with ARCH, a legal resource centre for people with disabilities, said at issue was a “secret funding program” with no name, no guidelines, no eligibility requirements and no appeal process.
“The provincial government purports to have a program… dealing with extra costs associated for caring for children with special needs,” he said.

Families with children with special needs have two main programs they rely on: special services at home, and assistance for children with disabilities.

In early 2001, additional money was allocated by the ministry to pay for services for special needs children. That was the one Nieberg and Clough applied for and ultimately challenged.

Word about the additional money circulated among the many special needs support groups and Holder figures about 600 families ultimately applied for it.

Holder said as a result of the decision, and depending how bureaucrats handled the proposals, the government should look at all the applications they received once again.

“We should expect that when the government remakes its decisions… it will have to spell out what its eligibility requirement is,” said Holder. “It’s been a very frustrating experience for all families in the province.”

Ellie Venhola, the Community Legal Clinic lawyer for Simcoe County representing Nieberg and Clough, was also prepared to argue the government unconstitutionally deprives autistic children of medically necessary treatment.

But the judges said another case was in the process of dealing with the Constitutional argument.

That case, involving 29 families, recently took a bizarre twist.

Ontario Superior Court Judge Frances Kitely told the government to hand the families $300,000 in interim funding. The decision came after the Ontario government’s tardy discovery of a “staggering” number of documents late in the case.

“I find that all of the parents have and continue to experience unrelenting and profound stress associated with providing appropriate treatment and education for their children,” she added in a decision Friday. “The delays and interruptions that have occurred in this case – for which the plaintiffs share no responsibility – have exceeded any tolerable level.”

The Ontario Human Rights Commission earlier this year also forwarded 121 cases involving special needs children to the Ontario Human Rights Tribunal.

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