Diagnosis

Legal Issues

The Alberta Legal Victory for Autism Treatment

Indexed as:

C.R. v. Alberta (Director of Child Welfare)

IN THE MATTER OF The Child Welfare Act, S.A. 1984, a. C-s.1,

as amended

AND IN THE MATTER OF an appeal by C.R. and H.R., from the

Child Welfare Appeal Panel

Between

C.R. and H.R., appellants, and

Child Welfare Appeal Panel and Director of Child Welfare,

respondents, and

The Attorney General of Alberta, intervenor

(1996) A.J. No. 760

Action No. 9601-05499

Alberta Court of Queen's Bench

Judicial District of Calgary

Deyell J.

August 30, 1996.

(13 pp.)

Counsel:

Jo'Anne Strakaf, for the appellants.

Thomas R. Owen, for the respondent, Child Welfare Appeal Panel.

Karen Tottrup, for the respondent, Director of Child Welfare.

Robert J. Norney, for the intervenor.

Reasons for Judgment

Deyell J.:--

Background

[para1] The appellants are the father and mother of R., a child born

February xx, 1989. R. suffers from a condition medically described as

"autism".

[para2] Materials filed in this action and entered into evidence describe

the varying natures of autism. Suffice it to say that autism is a disability

that affects behavior and communication in all facets of the disabled

person's life. It arises at a young age. Its cause is unknown.

[para3] R. was diagnosed with autism in April 1994 when he was five years

old. H.R., his mother, gave evidence at the appeal. She testified that R.

had "very little functioning". He was destructive as exemplified by pulling

wallpaper off walls in his home. He was continually aggressive, both with

other children and with adults. He attacked his sisters. He was

self-abusive, bashing his head against objects. He could not speak, and he

did not understand what other people were saying to him. He gave little eye

contact. He was not very interested in toys. He had toilet problems, such

that he would have a bowel movement wherever he happened to be located and

he smeared the feces.

[para4] The appellants attempted to find help for their child. This included

putting him into a center for children with special needs. R. attended for

two years, from age 4 to 6. Mrs. R. testified that R. made some gains but

not any "substantial" gains, partly because he did not understand language.

[para5] In December 1994, the appellants discovered a behavioral

intervention technique known as the "Lovaas Program." This treatment is

based on the work of Ivar Lovaas, a psychologist at UCLA in California, who

conducted ground-breaking work in the treatment of people with autism.

According to D.N. Barlow and V.M. Durand, Abnormal Psychology, An

Integrative Approach (Scarborough: Brooks/Cole Publishing Company, 1995) at

653, the basic premise in such treatment is that people with autism can

learn and that they can be taught some of the skills they lack.

[para6] In materials filed in this appeal, the appellants describe

Lovaas-type treatment as an intensive behavior modification program that is

"directed towards enhancing the intellectual, academic, social and emotional

behaviors of children so that they can better take advantage of the

education and social opportunities available in their communities and

require less professional intervention as they grow older." Such programs

focus on all areas of functioning including language, behavior, play skills,

social skills, academic skills and self-help skills. They involve a

therapist who rewards appropriate behavior. They also involve extensive

one-on-one therapy, typically for about 40 hours per week.

[para7] A program based on the work of Lovaas was developed for R. Dr. Leaf,

of the Autism Partnership in California, helped develop the therapy. It

commenced June 1, 1995, and therapists deliver it to R. at his home outside

of school hours. R. currently receives about 20 hours of therapy per week,

but the appellants would like to increase that.

[para8] Mrs. R. testified that R.'s behavior and communication have improved

since the therapy began. R. appears to be learning to speak. He can make 15

sounds from the alphabet and has 14 words. He can identify 20 objects. Mrs.

R. is optimistic that R. will become a person who can speak. She identified

other improvements. R. gives more eye contact. He is less aggressive and is

making better use of the toilet. He is also being trained in such areas as

dressing himself and eating with utensils.

[para9] While this therapy was continuing, R. attended a school in the

Calgary Roman Catholic Separate School District. He was in a special needs

class. Mrs. R. testified that it was difficult for R. to understand some

activities in the classroom, partly because his language skills were not

sufficiently developed.

[para10] In November 1995, the appellants requested that R.'s school provide

financial assistance for his therapy. Their request was not granted. In

March 1996, the superintendent, religious education and student services, of

the Calgary Roman Catholic Separate School District wrote that the district

"does not support programs that occur outside of normal school hours." The

appellants did not pursue the matter further with the school district.

[para11] The appellants applied to Handicapped Children's Services, a

division of Alberta Family and Social Services, to fund R.'s therapy. This

was done pursuant to s. 72 of the Child Welfare Act, S.A. 1984 c. C-S.1,

which provides that The Director may enter into an agreement to provide

services to a handicapped child or that child's family. In October 1995, the

Director of Child Welfare (the "Director") refused to fund the child's

therapy.

[para12] The appellants appealed the Director's decision to an Appeal Panel

the "Panel) under s. 86(2)(f) of the Child Welfare Act. They requested that

the therapy by fully funded in the amount of $39,369, which broke down to

$31,965 to cover the therapy for a year and $7,404 for implementation costs.

[para13] The Panel denied the appeal, holding it did not have jurisdiction

to fund the request. In its reasons, the Panel characterized R.'s therapy as

educational and stated it had no jurisdiction, because the education of

school age children is within the exclusive jurisdiction of school boards

under the School Act, S.A. 1988, c. 8-3.1. It stated the School Act

specifically provides for special educational needs of school age children

and it supersedes s. 72 of the Child Welfare Act. Further, it stated that if

the panel had jurisdiction, it would be "inappropriate" to exercise that

jurisdiction in the face of legislation specifically designed to provide for

the educational needs of all school age children. The panel heard, but

declined to rule on, the substantive merits of the appeal.

[para14] The appellants appealed the Panel's decision to the Court of

Queen's Bench pursuant to s. 85(6) of the Child Welfare Act. The appellants

argue that the Panel erred in law, and in the alternative, the Panel's

interpretation of s. 72 discriminates against R. in a way that violates s.

15 of the Charter.

[para15] Until March 1996, the appellants funded the program on their own.

To do so, Mr. R. "cashed in" his employment pension, and the appellants

borrowed money from a bank and from a friend of the family.

[para16] The issues are as follows:

[para17] 1. What is the standard of review to be applied to the Panel's

decision?

[para18] 2. Whether the Panel erred in law in finding it had no jurisdiction

to consider the appeal.

[para19] 3. Whether the Panel's decision violates s. 15 of the Charter.

[para20] 4. If the Panel erred in law or if the Panel's decision violated s.

15 of the Charter, whether this Court ought to order funding pursuant to s.

83 of the Child Welfare Act.

Discussion

[para21] It is convenient to set out the provisions under the School Act and

Child Welfare Act that provide for the provision of services to children.

Section 72 of the Child Welfare Act provides as follows:

72(1) A director may enter into an agreement in the prescribed form with the

guardian of a child with respect to the provision of services to the family

or the child if, in the opinion of the director, the child is a handicapped

child.

(2) An agreement under this section shall include terms prescribing

(a) whether the child will be placed in the care or custody or under the

control or supervision of a director in order to permit the provision of

services or financial assistance to the family or the child to meet the

special needs of the child,

(b) the nature and amount of the services or the financial assistance to be

provided to the family or the child, and

the child for the services provided in respect of the child:

Sections 29 and 30 of the School Act provide as follows:

29(1) A board may determine that a student is, by virtue of the student's

behavioral, communicational, intellectual, learning or physical

characteristics, or a combination of those characteristics, a student in

need of a special education program.

(2) Subject to section 30, a student who is determined by a board to be in

need of a special education program is entitled to have access to a special

education program provided in accordance with this Act.

...

30(1) A board may determine that a student has special needs that cannot be

met in an education program that can be provided by the board under any

other provision of this Act.

(2) If a board makes a determination under subsection (1) in respect of a

student, the board shall refer the matter to a Special Needs Tribunal, which

shall confirm the board's determination or determine that the board is able

to provide the student with an education program that is appropriate to the

needs of the student.

(3) If a Special Needs Tribunal confirms the determination of a board under

subsection (1), it shall develop or approve a special needs plan that is

consistent with the needs of the student and, in accordance with that plan,

shall

(a) determine the relationship between the student, the board and any other

person or government that may provide the services required under the

special needs plan, and

(b) apportion the cost of providing the services required under the special

needs plan between the board and the Government.

...

Issue 1

[para22] A preliminary question arises with respect to the standard of

review to be applied to the decision of the Panel. The Panel argued that

this court need not defer to the Panel in matters of statutory

interpretation and jurisdiction, but that a "decision should not be

disturbed unless the Panel acted on some wrong principle or disregarded

significant material evidence or the decision is clearly wrong." The Panel

cites Re Richard Skeith (12 March 1996), Lethbridge 96060079 (Q.B.) for this

standard. The Panel says that the finding that the child's therapy is an

educational program is a finding of fact.

[para33] Other decisions of the Court of Queen's Bench hold that appeal

panels under the Child Welfare Act need not be accorded any curial

deference. In Director of Child Welfare v. T.R. and G.R. (1990), 106 A.R.

161 (Q.B.) at 167, Dea. J. stated that such panels need not be accorded

curial deference because the legislation does not provide for a single panel

with particular expertise. In Diretor of Child Welfare (Alta.) et al, v.

Cyrus (1994), 153 A.R. 156 (Q.B.), Perras, J. considered the standard of

review to be applied to a decision of an appeal panel under the Child

Welfare Act. This standard - acting on some wrong principle or disregarding

significant material evidence or the decision is clearly wrong - did not

apply. Perras, J. noted that the decision of the appeal panel is not

protected by a privative clause and that the court under s. 83 of the Child

Welfare Act can permit further evidence and can make any order that could

have been made in the original hearing.

[para24] Section 83(1) of the Child Welfare Act provides as follows:

83(1) On hearing an appeal, the Court of Queen's Bench shall determine the

appeal on the material filed with or forwarded to the Court of Queen's Bench

and such further evidence as the Court of Queen's Bench may require or

permit to be given.

(2) The Court of Queen's Bench may

(a) confirm the order or refusal,

(b) revoke or vary the order made, or

[para25] By virtue of s. 85(7), s. 83 applies to appeals from appeal panels

to the Court of Queen's Bench.

[para26] I would not grant any curial deference to the Panel. It is not

protected by any privative clause. Section 83 grants the Court the power to

consider the evidence, hear new evidence and make any order. Director of

Child Welfare v. T.R. and G.R., supra, suggests the members of the Panel

have no specialized knowledge.

[para27] Even if I were to grant curial deference to the Panel's findings of

fact, I consider the characterization of the child's therapy as an

educational program to be a question of law, not of fact. Section 29 of the

School Act refers to special education programs, and s. 30 refers to

education programs and special needs plans. The Panel did not explicitly

characterize the child's therapy with reference to these provisions; rather,

it characterized the therapy as an "educational program" that may be

provided only under the School Act. This characterization is a question of

law, as it involves an exercise of statutory interpretation that fits a set

of facts (the therapy) within a legislative scheme (the School Act).

Issue 2

[para28] In determining that the matter was within the exclusive

jurisdiction of school authorities under the School Act, the Panel decided

that the Program was an "educational program designed to benefit R.'s

"special education needs" and that educational programs may only be dealt

with under the School Act.

[para29] I am not convinced that the child's therapy is an educational

program such that exclusive jurisdiction for it lies with the School Act.

[para30] The child's therapy is "directed towards enhancing the

intellectual, academic, social and emotional behaviours of children so that

they can better take advantage of the education and social opportunities

available in their communities and require less professional attention as

they grow older." The child's therapy has an educational aspect, in that it

can assist him in becoming able to learn in a school environment as a

special needs child. The therapy has other aspects as well, and these are no

less significant than the educational aspect. The therapy deals with

communication and behaviour in all areas of the child's life. For example,

the therapy is assisting the child in learning to communicate through

speech. So far, the child has developed a limited vocabulary, which is a

major step for him. It cannot be said that the development of communication

through speech is merely educational; it is a fundamental life skill that

touches on most, if not all, areas of a person's life. The therapy touches

on other skills as well, such as dressing and toilet training. The therapy

is addressing behavioral issues in the home. Finally, I note that the

therapy need not be given only during those times that school is in session.

[para31] The Panel erred in law in characterizing the child's therapy as an

educational program. As I have said, I am not inclined to grant the Panel's

characterization any curial deference. If I were to grant the

characterization any curial deference, I would still overturn it. The Panel

had no basis on which to hold that the therapy could not be funded under the

Child Welfare Act.

[para32] I do not wish to be quoted as saying that Lovaas-type programs for

autistic children can never be funded under the School Act. Depending upon

the context, the content of the therapy and the functional ability of the

person receiving the therapy, it may be that Lovaas-type programs should be

funded under the School Act. Materials entered as exhibits at this appeal

suggested that severe disability funding is available to school

jurisdictions, and s. 30 of the School Act provides that government and

school boards share the costs of special needs plans.

[para33] Having found that the child's therapy is not an educational

program, I need not address the question of whether educational programs are

within the exclusive jurisdiction of the School Act.

[para34] There is no need to address the Charter question.

Issue 4

[para35] The final question is whether I should make an order directing that

the Director enter into an agreement for the provision of services to a

handicapped child. I have the jurisdiction to do so. Under s. 83(2) of the

Child Welfare Act, I may "make any order the Court could have made in the

hearing before it." "Court" is defined in s. 1 of the Child Welfare Act as

"Provincial Court". By virtue of s. 85(7) of the Child Welfare Act, s. 83

applies to an appeal from an appeal panel to the Court of Queen's Bench.

Therefore, I may make any order the Panel could have made in the hearing

before it.

[para36] The therapy is a "service" and the child is a "handicapped child"

within the meaning of s. 72 of the Child Welfare Act. The therapy is of

great benefit to the child and to his family. It is addressing some

fundamental issues, such as speech and aggression. The appellants have been

borrowing heavily to fund the therapy. They cannot afford the expense, and

the expense is the responsibility of the state.

[para37] I note that in Rosengraten v. Child Welfare Appeal Panel et al. (26

September 1995), Calgary 9501-08778 (Q.B.), the Court ordered funding for an

intensive behavioral modification program that is similar to the therapy in

this case. The funding was for a year.

[para38] I order that the Director enter into an agreement in which the

Director will fund 90% of the costs of the therapy and the appellants will

fund 10%. The term of the funding will be from January 1, 1996 to December

31, 1996. The amount will be $31,965. In addition, the agreement will

provide for reimbursement to the appellants of expenses incurred between

June 1, 1995 and December 31, 1995, in the amount of 90 percent of $7,404.

[para39] As I indicated during the hearing, I urge the Director to enter

into an arrangement with the school board to ensure the child gets the

appropriate support and education that he requires in the future. The child

may reach a stage where he is able to be educated rather than 'warehoused'

in school. The Director and the school board should co-operate and be

prepared.

[para40] The Appellants are entitled to costs pursuant to the Rules of

Court.

The Alberta legal decision has established an important precedent

for government funding of Lovaas-style autism therapy. The full

transcript is below for any parents that wish to consult with their own

lawyers.

Paragraph 36 has a key phrase: "...the expense is the responsibility of

the state", in reference to the cost of Lovass-style ABA.

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