ARCH ALERT November 9, 2005 ARCH: A Legal Resource Centre for Persons with Disabilities 425 Bloor St. E. Ste. 110 Toronto, Ontario M4W 3R5 Tel.: 416-482-8255 Toll-free: 1-866-482-2724 Fax: 416-482-2981 Toll-free: 1-866-881-2723 TTY: 416-482-1254 Toll-free: 1-866-482-2728 www.archlegalclinic.ca INSIDE THIS ISSUE - Supreme Court Victory for Immigrants with Disabilities - ARCH Anniversary Celebration and Annual General Meeting - New Rules for ODSP and OW Special Diet Allowance - First Two AODA Accessibility Standards Development Committees Planned - Update on Human Rights Reform Process in Ontario - ARCH Launches Fact Sheets on Abuse and Persons with Disabilities - MCSS Announces New Funding for Community Living - MCYS Answers Questions on Specialized Supports Funding - Government Appeals Wynberg Decision, CACL and CLO Intervene - ARCH at the Supreme Court - More Time to Take Part in SDC's Online Consultation - Member of "Alternate Family" Is Renter, not Boarder - Court Denies Child Support to Parent of Crown Ward with Disability - TTY Service at Legal Aid Ontario and the Federal Government - Correction - Law Student Creates Book on Living with Disability - Resources on Abuse and Persons with Disabilities *** Supreme Court Victory for Immigrants with Disabilities By Ena Chadha, Director of Litigation On 21 October 2005, the Supreme Court of Canada decided the cases of Hilewitz v. Minister of Citizenship and Immigration and de Jong v. Minister of Citizenship and Immigration. The decision is a victory for persons with disabilities and their families because the Supreme Court has said that immigration officials can no longer assess potential immigrants to be "medically inadmissible" to Canada solely on the basis of a person's disability, and that immigrants with disabilities can become valued members of Canadian society. These cases were brought by two families who wished to come to Canada as business class immigrants. Mr. Hilewitz applied for himself and his family to come to Canada as permanent residents under the "investor" category. To be accepted as immigrants under this category, the principal applicant must have business experience and promise to make a large financial investment into a Canadian business. Mr. de Jong applied for himself and his family to come to Canada as permanent residents under the "self-employed" category. This category is for immigrants who want to develop a business that creates jobs for themselves and contributes to Canada's economy or cultural life. The de Jong family planned to start a dairy farm. Citizenship and Immigration Canada ("CIC") decided that the Hilewitz and de Jong families were desirable immigrants, and that both families satisfied the rules to qualify as business class immigrants. However, CIC denied the applications of both families to become landed immigrants because each family includes a child with an intellectual disability. CIC refused to allow the families to immigrate to Canada because medical and visa officers decided that the children, Gavin Hilewitz and Dirkje de Jong, "would cause or might reasonably be expected to cause excessive demands on ... social services" in Canada. In both cases, the officers pointed out that the children might use special education and vocational training programs, and therefore might cause excessive demands on Canada's social services. This "excessive demands" decision made the children inadmissible under section 19(1)(a)(ii) of the Immigration Act. In 2001 the Immigration Act was replaced by the Immigration and Refugee Protection Act ("IRPA"). Under IRPA, the medical inadmissibility provision was changed. If Canadians sponsor their spouses or dependent children, CIC no longer considers whether the family members will cause excessive demands on Canadian social services. However, this exemption did not help the Hilewitz and de Jong families because, as business class applicants, section 38(1)(c) of IRPA still does not allow persons to immigrate to Canada "if their health condition ... might reasonably be expected to cause excessive demand on health or social services." The judge who heard the Hilewitz case in the lower court held that, when deciding whether Gavin Hilewitz would make "excessive demands" on social services, such as special education and vocational training, the medical officer should have considered his family's ability and willingness to pay for any social services that Gavin might need. The Hilewitz family had promised to pay for Gavin's private education, and to give him a job in the family business when he became an adult. However, a different judge heard the de Jong case in the lower court. That judge held that the family's ability and willingness to pay for social services for their daughter did not matter to the "excessive demands" assessment. Dirkje de Jong had been accepted to an inclusive religious-based private school in the community where her family was moving, and would get support from community members. These conflicting lower court rulings were appealed to the Federal Court of Appeal ("FCA"). At the FCA, the families argued that immigration officials should be required to consider the family's financial ability to provide disability supports, in deciding whether their admission to Canada would cause excessive demands on social services. The FCA disagreed with the families' position and upheld the decision of the lower court in de Jong that a family's ability and willingness to pay for social services was not a relevant consideration. The families appealed the FCA decision to the Supreme Court of Canada. ARCH represented the Canadian Association of Community Living ("CACL") and Ethno-Racial People With Disabilities Coalition of Ontario ("ERDCO"), as both organizations were granted intervener status before the Supreme Court in the Hilewitz and de Jong cases. The CACL and ERDCO intervened in these cases in order to draw the Supreme Court's attention to the fact that persons with disabilities are being systematically discriminated against when denied admission to Canada based on negative stereotypes. Visa officers rely on the recommendations of medical officers to decide that persons with disabilities will make "excessive demands" on Canadian social services. These medical officers have based their recommendations on a medical diagnosis, rather than considering the whole person. They did not think about what the cost of needed services would be, or what a "reasonable demand" might be. As the population ages, the definition of "reasonable demand" may change. Even now Canadian immigration policy does not prevent persons from immigrating if they do things that could be dangerous to their health or potentially costly to the health care system, such as persons who are heavy smokers, participate in extreme sports or have a history of negligent driving. The CACL and ERDCO pointed out that CIC fails to consider the positive contributions that persons with disabilities make to society, and the important role that families and communities play in providing supports to persons with disabilities. Canada offers all new immigrants a broad variety of services and supports, which are recognized as necessary to help newcomers become part of their communities. The CACL and ERDCO argued that it is not fair to treat immigrants with disabilities differently, and that immigrants with disabilities should be able to get similar supports and services that help their inclusion in society. On behalf of our clients, ARCH argued that a fair and respectful assessment of eligibility for permanent residency under both the former Immigration Act and its successor IRPA must accord with the equality values of the Canadian Charter of Rights and Freedoms and international human rights principles. Persons who want to immigrate to Canada should be evaluated on an individual basis, as whole persons, with consideration given to their individual needs and their potential contribution to Canada, as well as family and community contribution. In a 7 to 2 decision, Justice Rosalie Abella, writing for the majority of the Supreme Court, noted that Canadian immigration policy has historically applied "exclusionary euphemistic designations" that concealed prejudices about persons with disabilities. Justice Abella stated that in the past immigration legislation operated on categorical exclusions, which "attached a cost assessment to the disability rather than the individual." The Court directed that CIC must look at each family's individual circumstances. As part of this individualized assessment, immigration officials should consider the resources, time, personal and financial supports, as well as community supports, that families are able and willing to provide to their children with disabilities. Justice Abella wrote: The issue is not whether Canada can design its immigration policy in a way that reduces its exposure to undue burdens caused by potential immigrants. Clearly it can. But here the legislation is being interpreted in a way that impedes entry for all persons who are intellectually disabled, regardless of family support or assistance, and regardless of whether they pose any reasonable likelihood of excessively burdening Canada's social services. The CACL and ERDCO are pleased that the Supreme Court of Canada directed that CIC must not use a "cookie-cutter methodology" that simply looks at the immigrant's disability diagnosis. The CACL and ERDCO are also pleased that Justice Abella did not restrict her decision to the former immigration statute, and indicated that the new law under IRPA must also be interpreted in accordance with the Supreme Court's ruling. The Supreme Court sent the Hilewitz and de Jong applications back to CIC for reconsideration and redetermination by different visa officers. According to the CIC media office, CIC is reviewing the Supreme Court's decision and will likely be consulting with the Department of Justice and Health Canada officials to determine whether any policy changes need to be made in order to comply with the Supreme Court's decision. With the guidance that the Supreme Court has given to the CIC, ARCH hopes that Canada soon will welcome all qualified new immigrants, including persons with disabilities. Most importantly, ARCH is pleased that it is no longer acceptable for immigration officials to point to a long list of costly social services that the applicant might be eligible for as a way to outright exclude persons with disabilities. You can read the decision in Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration) at: http://www.canlii.org/ca/cas/scc/2005/2005scc57.html *** ARCH Anniversary Celebration and Annual General Meeting By Theresa Sciberras, Administrative Assistant 6 October 2005 was a day for celebration. ARCH celebrated its 25th Anniversary. It was also ARCH's Annual General Meeting ("AGM"). The evening brought people together from ARCH's past, present and future. At the AGM we elected this year's Board of Directors. ARCH's newest Board members include Marcia Cummings, Gary Malkowski and Marianne Park. To learn more about our new - and our returning - Board members, visit our website at http://www.archlegalclinic.ca/aboutARCH/04_board.asp ARCH also received membership approval for our name change to ARCH Disability Law Centre. Our 25th Anniversary Celebration was very successful. Our master of ceremonies and current Board member, John Feld, kept things running smoothly throughout the evening, which included entertainment and greetings from many significant members of ARCH's community. In particular, we would like to thank the Honourable R. Roy McMurtry, Chief Justice of Ontario and long-time supporter of ARCH, for attending and speaking so highly of our work over the years. Deb Matthews, MPP for London North Centre, spoke on behalf of Sandra Pupatello, Minister of Community and Social Services, Minister Responsible for Women's Issues and Minister Responsible for Ontarians with Disabilities. David Zimmer, MPP for Willowdale, brought greetings from the Attorney General of Ontario, Michael Bryant. Angela Longo and Janet Leiper brought greetings from Legal Aid Ontario, each speaking about the role that ARCH has played and continues to play in the legal aid system. Michael Bach of the Canadian Association for Community Living made a very thoughtful comment about the importance of our work and Laurie Beachell, who has personally had a long-standing relationship with ARCH, listed our many contributions to Canadian equality jurisprudence, as counsel to the Council of Canadians with Disabilities. ARCH's two executive directors, David Baker and Phyllis Gordon, each spoke briefly about the contribution of individuals that have been on our board, worked with us or been part of our organization in some important way. To commemorate ARCH's anniversary, we wrote and published a booklet titled "ARCH: Celebrating 25 Years", which we distributed that evening. *** New Rules for ODSP and OW Special Diet Allowance By Heidi Lazar-Meyn, Staff Lawyer On 4 November 2005, Sandra Pupatello, Minister of Community and Social Services, Minister Responsible for Women's Issues, and Minister Responsible for Ontarians with Disabilities filed new regulations that will change the rules for entitlement to the special diet allowance ("SDA") under the Ontario Disability Support Program ("ODSP") Act and the Ontario Works ("OW") Act. These regulations will be published in the Ontario Gazette on 19 November 2005. Under the present regulations, persons who receive ODSP or OW benefits can get a SDA of up to $250 per month to buy vitamins, nutritional supplements and special foods that are listed on Special Diet Schedules, if an approved health professional says that they need these things because of a medical condition or to keep healthy. In the past, many ODSP and OW recipients did not know that they could get the SDA. Many persons who just learned about it recently have been applying for the SDA, and have been approved. The Ministry of Community and Social Services ("MCSS") says that the new regulations are to clarify the policy that only persons who need the SDA due to a medical condition should be getting it. But the changes will make it harder for the persons who need a special diet to get the SDA. Community and clinic activists are very concerned about the new regulations, and are considering next steps. We will keep you posted in future issues of ARCH Alert. Under the new regulations, each person in the benefit unit who needs a special diet will still be able to get a SDA of up to $250. But the approved health professional now must confirm that the person needs a special diet because of a specifically-listed medical condition. Persons who need a special diet because of a medical condition that is not listed on the new Schedule 1 for Special Diets, or to stay healthy, no longer will be eligible. Schedule 1 for Special Diets lists how much money a person gets for each medical condition, "unless otherwise specified". For example, a person who is diagnosed with diabetes ordinarily will get $42 a month, and a person who is diagnosed with high blood pressure will get $10 a month. Persons who were getting the SDA on 3 November 2005 will have to confirm within 90 days that they have a medical condition that meets the new requirements for the SDA. If persons who receive the SDA do not provide information about their special diet needs when asked, they will not get the SDA as part of their benefits. MCSS also has made new policies about the SDA. To apply for the SDA, a physician, an approved registered nurse or a registered dietician (or a registered or traditional Aboriginal midwife, for pregnant women only) now must complete an original form approved by MCSS. Persons who are getting the SDA will need to get a new application form completed in the future, and will have their need for the SDA reviewed as part of the Consolidated Verification Process (ODSP) or every 12 months (OW). This short summary does not cover all of the details of the new SDA regulations or of the policies that MCSS will use to determine eligibility under them. Also, MCSS says that it will issue more directions and policies soon, which may change how the regulations are applied. If you have any questions, you should contact your local ODSP or OW office or your local legal aid clinic. You can read the four new regulations at: http://www.e-laws.gov.on.ca/DBLaws/Source/Regs/English/2005/R05562_e.htm http://www.e-laws.gov.on.ca/DBLaws/Source/Regs/English/2005/R05563_e.htm http://www.e-laws.gov.on.ca/DBLaws/Source/Regs/English/2005/R05564_e.htm http://www.e-laws.gov.on.ca/DBLaws/Source/Regs/English/2005/R05565_e.htm *** First Two AODA Accessibility Standards Development Committees Planned By Amy Wah, Student at Law The Accessibility for Ontarians with Disabilities Act (AODA) is now law. Under the AODA, the province must be made fully accessible to persons with disabilities by the year 2025. To meet this goal, the government of Ontario, the disability community and private and public sector organizations must work together to develop accessibility standards. As reported in the last issue of ARCH Alert, Sandra Pupatello, Minister of Community and Social Services, Minister Responsible for Women's Issues, and Minister Responsible for Ontarians with Disabilities, took the first step in setting standards by asking persons to apply to be members of her Accessibility Standards Advisory Council ("ASAC"). The majority of ASAC members must be people with disabilities. ARCH expects that Minister Pupatello will make appointments soon. In addition, Andrea Maurice, Assistant Deputy Minister for the Accessibility Directorate of Ontario, has started to talk to the disability community about the realities of implementing the AODA effectively. Minister Pupatello now has taken another step forward by asking people to apply to become members of the first two accessibility standards development committees ("SDCs"). The standards that the SDCs set will become regulations under the AODA. Each standard must be implemented in five years or less. One SDC will set standards for customer service. This could include many different areas, such as accessibility of counters and cash registers, having menus and price lists available in Braille or electronic formats and teaching employees how to use a TTY or relay service. The other SDC will set standards for transportation. These standards will cover all transportation services for which the province of Ontario is responsible, such as city buses, local trains, taxis and paratransit. SDC members can include persons with disabilities or other members of the disability community, persons who work in the businesses or services to which the accessibility standard will apply and persons who work for ministries that have responsibility for those businesses and services. Minister Pupatello also can ask other persons or organizations to join an SDC, including members of the ASAC. We hope that ARCH Alert readers have applied to be members of these SDCs. Application deadlines can be short. To make sure that you find out about SDCs in time to apply to be a member, you can check the Accessibility Ontario website: http://www.mcss.gov.on.ca/accessibility/index.html *** Update on Human Rights Reform Process in Ontario By Tess Sheldon, Staff Lawyer Under Ontario's Human Rights Code, everyone has an equal right to get services and goods, use facilities, live in housing, get a job, belong to an association and make a contract without discrimination on many grounds, including disability. Persons who believe that they have been discriminated against in any of these ways can file a complaint with the Ontario Human Rights Commission ("Commission"). The Commission investigates the complaint, and can send it to mediation, where the people involved try to settle it. If there is no settlement, the Commission can choose to send the complaint to the Human Rights Tribunal of Ontario for a hearing, or decide not to deal with it. Many persons, including members of the disability community, have complained of barriers to making complaints and having them heard through Ontario's human rights system. As reported in the August 2005 issue of ARCH Alert, the Ontario Human Rights Commission ("Commission") had just started a review of Ontario's human rights system. On 13 October 2005, the Commission released its Consultation Report, called Strengthening Ontario's Human Rights ("Report"). The Commission held three focus groups, which included 31 representatives of groups that deal with human rights issues. These groups included community advocates, legal clinics, lawyers who represent complainants or employers, law professors, unions and human rights commissions and tribunals. The Commission also considered 56 written submissions. The Report found that most people agreed that a reformed human rights system should, among other things: * Be independent of provincial ministries; * Have enough money to do its job well; * Encourage a culture of human rights, especially by teaching about them; * Be accessible to all persons who want to make complaints; * Be able to address systemic issues, not just individual complaints; * Be expert and representative of all Ontarians; * Settle or hear cases timely; * Be able to choose the best way to handle a complaint and * Be able to resolve simple cases easily. The Report also mentions problems with the consultation process. Some participants, including ARCH, made submissions about the difficulty of consulting with community members during the short time allowed. The four weeks of the consultation came in late summer. Many Ontarians who might have wanted to make suggestions were on holiday, and then busy with the start of the school year. While the Report makes it clear that people think that the human rights system could be changed to work better than it does now, the Report does not suggest how to change the system to do these things. The Report does say that people who are interested in changing the Ontario Human Rights system disagree strongly as to what changes should be made. Attorney General Michael Bryant has promised to develop a "blueprint" for human rights reform in the Ontario by the winter of 2005. As we learn more about the blueprint and how the disability community will be able to comment on it, we will report the information in future issues of ARCH Alert. You can read the Report on the Commission's website at: http://www.ohrc.on.ca/english/consultations/human-rights-review-report.shtml *** ARCH Launches Fact Sheets on Abuse and Persons with Disabilities By Lana Kerzner, Staff Lawyer In response to a pressing need for information on abuse as it relates to the experience of persons with disabilities, ARCH recently released a series of fact sheets on abuse and persons with disabilities. They are intended to give legal information and resources, including contact information, to persons with disabilities and the general public. The following fact sheets are now available: * Fact Sheet 1: What Can I Do If I Am Being Abused? * Fact Sheet 2: What Are My Legal Options For Dealing With Abuse? * Fact Sheet 3: What Happens When I Report Abuse To The Police? * Fact Sheet 4: What Happens When An Abuse Case Goes To Criminal Court? * Fact Sheet 5: How Can The Abuser Be Punished After The Criminal Trial? Topics covered in the fact sheets include: * What makes abuse a crime; * Legal avenues that a person who has experienced abuse can pursue; * An explanation of the victim/survivor's role in the criminal process; and * Accommodations and supports available to persons with disabilities during the criminal process. You can read or download the fact sheets in either .pdf or .html format on our website at: http://www.archlegalclinic.ca/publications/crime/A73_2005_003240/index.asp You also can call ARCH to get a copy of any fact sheet, either on paper or in an alternate format. The current versions of the fact sheets were produced in September 2005. These replace the versions that were distributed at the public education forum on addressing situations of abuse held at the Law Society of Upper Canada ("LSUC") on 31 May 2005, which was co-hosted by ARCH and the Equity Initiatives Department of the LSUC. The fact sheets aim to give victims/survivors the information that they need to make informed decisions about the legal avenues which are available to them. Few people are aware that victims/survivors have a number of options from which to choose. Most people know of and use the criminal process, and do not pursue other possibilities, such as seeking compensation through the Criminal Injuries Compensation Board, complaining to a human rights commission, or launching a civil action. People who support or provide services to victims/survivors often believe that they must report abuse about which they become aware. However, the legal requirements for mandatory reporting of abuse are in fact limited to specific circumstances set out in various laws. In most cases, there is no mandatory duty to report and it is the victim/survivor's decision as to what steps, if any, he or she wishes to take in response to the abuse. The fact sheets provide general information so it is important to get legal advice about your own situation. In order to make informed decisions it is important to know what choices are available to you and whether there are time limits that you need to meet to pursue them. Pursuing any legal avenue is often emotionally draining, time consuming and may be expensive. As well, there is the risk that someone may try to take action against you if you report abuse. It is important for you to get legal advice on what laws can protect you from your abuser and from retaliatory behaviour. You may wish to call ARCH's Summary Advice and Referral Service for free, confidential legal information and referrals regarding abuse. Another way to get legal advice is to contact a community legal clinic or a lawyer. To find your local community legal clinic or to apply for free legal advice, you can contact Legal Aid Ontario ("LAO"). LAO gives free legal advice to some people who have low incomes. To reach LAO, call: Telephone: 1.800.668.8258 TTY: 416.598.8867 (callers in Toronto) or 1.866.641.8867 (callers outside Toronto) The Lawyer Referral Service ("LRS") can refer you to a lawyer. You can have a free half-hour of advice from that lawyer, but the service will charge $6 to your phone bill. To reach the LRS, call 1.900.565.4577. People experiencing spousal abuse or child protection issues, or who are under 18 years old or in an institution, may telephone the LRS Crisis Line: 416.947.3330 (callers in Toronto) or 1.800.268.8326 (callers outside Toronto) The fact sheets were developed as part of ARCH's ongoing initiative to address abuse as it specifically affects persons with disabilities, and to acknowledge that while there are similarities between their experiences and those of other victims/survivors, such as seniors and children, there are also significant differences. For this reason, ARCH put together an advisory committee including lawyers, persons with disabilities, service providers and advocates. In preparing the fact sheets we relied heavily on their knowledge, advice and insight, as well as on the feedback that we receive from the many persons who call our office. *** MCSS Announces New Funding for Community Living By Heidi Lazar-Meyn, Staff Lawyer The Ministry of Community and Social Services ("MCSS") announced on 2 November 2005 that the Ontario government will be creating 390 new places for adults with developmental disabilities who are living in the community, as part of the "Home of Your Own" initiative. Ninety of these will be specialized spaces for adults with high care needs. The Ontario government has promised to spend $18 million over the next two years to build these spaces, and $20 million over the next five years to operate them. This money, and these new homes, are in addition to the homes and $70 million in funding that the province promised last September to help persons who are now living in regional institutions to move into the community. MCSS also announced that in 2006 it will set up four regional networks to provide specialized services in the community. The networks will have teams of medical professionals who will work with community agencies, hospitals, police and mental health units to provide these services. The teams will study how to help persons with high needs, and share what they learn with families and partner organizations. ARCH has heard some feedback from persons with disabilities, and those who support them, about what supports and services they think are important at this time of transition of developmental service provision in Ontario. We need to hear from more members of the disability community as well, so that we can represent the full range of views in our advocacy and reform efforts with respect to MCSS initiatives, such as the "Home of Your Own" program. Please share your ideas with us by e-mail at scibert@lao.on.ca. For further information on this program, and on other ongoing MCSS initiatives about developmental services, you can check their website: http://www.mcss.gov.on.ca/CFCS/en/programs/SCS/DevelopmentalServices/default.htm *** MCYS Answers Questions on Specialized Supports Funding By Heidi Lazar-Meyn, Staff Lawyer On 27 June 2005, the Ministry of Children and Youth Services ("MCYS") announced that $10 million in funding is available to help children and youth with severe special needs. As we reported in the August 2005 issue of ARCH Alert, MCYS did not give any details on how families can apply for these funds, or what programs will receive funds. So ARCH wrote to MCYS and asked for more information. Lauro Monteiro, Director of the Management Support Branch of MCYS, wrote back on 5 October 2005. Here is what he told us about the announcement: * The $10 million is all new funds that had not been announced before. * The money has been given to the MCYS regional offices. * In April 2005, parents of children with disabilities and service providers met with representatives of MCYS, the Ministry of Community and Social Services, the Ministry of Health and Long-Term Care and the Ministry of Education to plan new kinds of "services and supports to children and youth with complex multiple special needs." * Local communities will use the money for the priorities that they identified when making these plans. These priorities include helping families at risk of breaking down or placing their child in a residential placement to keep their child at home with new community supports and services. * Local service access processes and agencies will continue to decide who needs the services most. There are no new policies or guidelines. Mr. Monteiro added that MCYS is planning to improve and expand services for families of children with disabilities in Ontario. He said that MCYS is trying to make services that are more accessible, work together better and meet the needs of children and families. ARCH applauds MCYS's "goal to build a system that supports more families earlier before their needs become critical, and to provide some relief to those families whose needs become acute." *** Government Appeals Wynberg Decision, CACL and CLO Intervene By Roberto Lattanzio, Staff Lawyer The Ontario government has appealed the 30 March 2005 decision in the case of Wynberg v. Ontario to the Court of Appeal. In that decision, Madam Justice Frances Kiteley of the Superior Court of Justice found that the government had violated the equality rights under the Canadian Charter of Rights and Freedoms ("Charter") of the children who are plaintiffs in the case, on the grounds of age and disability. After a long trial, Justice Kiteley found that the Intensive Early Intervention Program ("IEIP") of the Ministry of Children and Youth Services, which offers Intensive Behavioral Intervention ("IBI") to children with autism between the ages of 2 and 5 years old, violated the Charter on grounds of age. She stated that the program was constitutionally valid when it started. However, Justice Kiteley found that, after the IEIP had been in place for a period of time, the government knew that more children were passing the age cutoff before they could enter the program than were receiving funding. Therefore, the age cutoff requirement was no longer rational. She also found that the government discriminated against the children who are plaintiffs on the ground of disability, by not providing them with appropriate special education programs and services and adequate transitioning into the public school system. The Canadian Association for Community Living ("CACL") and Community Living Ontario ("CLO") are intervening, and are represented by ARCH and co-counsel Stikeman Elliott LLP. Some CACL and CLO members are parents of children with autism who are concerned about the use of IBI and Applied Behavioural Analysis ("ABA") as the primary way of supporting pre-school and school-aged children with autism. These parents want the government to consider the full range of support possible for their children so that the children are included in the regular school system. The submissions of the CACL and CLO are limited to the issue of what is an appropriate and just remedy in the circumstances of this case. The two legal issues that will be addressed by the intervenors are: 1) whether Justice Kiteley erred in awarding damages to the child plaintiffs under section 24(1) of the Charter; and 2) whether Justice Kiteley's declaratory relief should be suspended for a two-year period, and what the terms and conditions of any such suspension should be. The appeal of Wynberg v. Ontario will be argued at the Court of Appeal in early December. Justice Kiteley's decision can be found at: http://www.canlii.org/on/cas/onsc/2005/2005onsc13356.html *** ARCH at the Supreme Court By Lesli Bisgould, Staff Lawyer ARCH will represent the Empowerment Council, Centre for Addiction and Mental Health at the Supreme Court of Canada. The Empowerment Council is intervening in the cases of Tranchemontagne v. Director of the Ontario Disability Support Program of the Ministry of Community, Family and Children's Services, and Werbeski v. Director of the Ontario Disability Support Program of the Ministry of Community, Family and Children's Services. The cases will be heard on 12 December 2005. We wrote about the decision of the Court of Appeal for Ontario in the Tranchemontagne and Werbeski cases in the June 2005 issue of ARCH Alert. In the Supreme Court, the cases will address whether the Social Benefits Tribunal and other tribunals may apply the Ontario Human Rights Code in cases they are hearing. The Supreme Court will decide whether people can raise human rights arguments at any Ontario tribunal that has the power to consider legal issues, or whether all human rights matters may only be pursued at the Ontario Human Rights Commission. ARCH acts as co-counsel to the Empowerment Council, along with Dianne Wintermute, Executive Director of East Toronto Community Legal Services. Ms. Wintermute has just returned to her home position after two years on secondment as a staff lawyer at ARCH. Also intervening are Advocacy Centre for Tenants Ontario, the Ontario Human Rights Commission, the African Canadian Legal Clinic and the Canadian Human Rights Commission. *** More Time to Take Part in SDC's Online Consultation By Heidi Lazar-Meyn, Staff Lawyer According to the Canadian Social Research Letter, Social Development Canada ("SDC") has extended the deadline for its online consultation about persons with disabilities until 30 December 2005. SDC says that the stories and ideas that people send in will help them in their work to make sure that persons with disabilities are full members of their communities. We wrote about this consultation in the August 2005 issue of ARCH Alert. You can read the earlier article at: http://www.archlegalclinic.ca/publications/archAlert/2005/12_aug25/09.asp The direct link to the online consultation is: http://sdc-dsc.dialoguecircles.com/Default.aspx?DN=520,32,Documents *** Member of "Alternate Family" Is Renter, not Boarder By Sallie Hunt, Staff Lawyer, Kenora Community Legal Clinic [Editor's note: We welcome Ms. Hunt as a guest writer to ARCH Alert. We look forward to hearing from other clinic lawyers who would like to write about cases on which they have worked and that are important to persons with disabilities.] Mr. S is a young adult with intellectual and physical disabilities. When he was 11 years old he moved to Kenora because he needed health care and social services that were not available in the far northern community where his birth family lives. Since then he has visited his birth family about four times a year. The rest of the time he lives in Kenora with Mrs. L and her family. The Kenora Association for Community Living arranged for Mr. S to live with Mrs. L through a Lifeshare Funding Agreement, which sets out the terms of his living arrangement. One way to describe this type of arrangement is to call the L family Mr. S's "alternate family". A goal of the arrangement is "to ensure that all people with special needs have the opportunity to live a meaningful and satisfying lifestyle." When Mr. S turned 18 last year he became eligible for disability benefits under the Ontario Disability Support Program ("ODSP"). The Ministry of Community and Social Services ("Ministry") is responsible for ODSP disability benefits. The Ministry paid up to a maximum of $930 (increased to $959 in March 2005) to a single person who is a renter or co-renter of a house or apartment. A boarder is someone who rents a room in another person's house or apartment, and has meals prepared by the landlord or landlady. The Ministry decided that Mr. S was a boarder, rather than a renter or co-renter with the L family, because he cannot shop for food or cook without help. Boarders receive less money for ODSP disability benefits - up to a maximum of $708 (increased to $730 in March 2005). Mrs. L, on Mr. S's behalf, objected to this decision, and appealed the case to the Social Benefits Tribunal ("SBT"). At the SBT, we argued that Mr. S is a renter. In deciding that Mr. S was a boarder, the Ministry did not consider anything other than the fact that Mrs. L provides both housing and food to Mr. S. But Mr. S benefits from living with the L family in ways that he would not if he were only a boarder. He can use any room in the whole house, not just his room. While Mrs. L shops for his food and prepares most of his meals, Mr. S often goes shopping with her. He chooses the food that he wants Mrs. L to buy by pointing to items in the weekly shopping flyers. She buys him clothing and personal items, and also fun things such as videos and CDs. Mr. S goes on outings and vacations with the L family. During the school year, Mr. S eats lunch in the cafeteria. At home with the L family, he helps to make meals and sandwiches. He also helps with household chores, such as loading the dishwasher, sorting clothes for laundry and folding his clothes. Mrs. L does Mr. S's laundry and housecleaning because he cannot do these things. In addition, she helps him with personal care, makes his health care appointments and takes him to appointments and social activities. We argued that to say that Mr. S is a boarder minimizes and devalues the nature of his relationship with his L alternate family. Because of the involvement of Mrs. L and her family with Mr. S, he is able to live independently, instead of in an institution or a group home, and participate in the community. The Ministry policy is that to qualify for full shelter costs under ODSP disability benefits, ODSP recipients must be able to shop for and cook their own food. This policy means that persons who cannot shop for and cook their own food because of a disability are given less money for rent and utilities than they would get if they did not have a disability. We argued this policy discriminates against Mr. S's right to receive services because he is a person with a disability, which violates section 1 of the Ontario Human Rights Code. The SBT made no comment about the human rights argument. But the SBT found that Mr. S was a co-renter, not a boarder, because Mrs. L gives him help in ways that a landlady does not usually do for a boarder. This is the first case in which the SBT decided that a person who has a disability and lives with an alternate family is a renter and not a boarder. We hope that this SBT decision will help other persons who are really co-renters, not boarders, to get the full shelter amount as part of their ODSP disability benefits. *** Court Denies Child Support to Parent of Crown Ward with Disability By Tess Sheldon, Staff Lawyer The recent decision of the Ontario Superior Court of Justice, Divisional Court, Toronto, Seabrook v. Major [2005] O.J. No. 3085, is important to parents of children with disabilities. In this case, a mother sought a change in child support, several years after she and her children's father divorced. Their younger son, C.A., has an intellectual disability. C.A. was temporarily in the care of Children and Family Services in 1996 and 1997, and was made a permanent ward of the Crown in 1998. Since that time, he has lived in a group home. The Ontario government has to pay for his housing, food, clothing, health and transportation expenses. However, C.A. spends every other weekend and some of his holidays at his mother's home. She stated that she gives him clothes, toys, sports equipment and personal items and takes him out for meals with his brother. She also does his laundry, and goes with him to doctor and dentist appointments. The legal issue is whether C.A.'s mother can claim child support for him. According to section 63 of the Ontario Child and Family Services Act, the parent of a Crown ward no longer has him in "care, custody or control". If C.A. therefore is not in his mother's "charge", he is not a "child of the marriage" under section 2(1) of the Divorce Act and his mother is not entitled to receive child support payments for him. The trial judge found that C.A. remained a "child of the marriage" because he had not taken any action to withdraw from the charge of his parents. The judge noted that C.A. was still physically and financially under his mother's charge, and ordered the father to pay child support to her for C.A. The father appealed the trial judge's decision. The majority of the Court found that a Crown ward is no longer in the charge of his parents, even though he remains their child in law. Therefore, the Court decided that C.A. is no longer a "child of the marriage", and that his mother is not entitled to claim support for him under the Federal Child Support Guidelines. Ontario Ombudsman André Marin issued a report in May 2005, called Between a Rock and a Hard Place. This report tells about parents who have been forced to give custody of their children with disabilities to Children's Aid Societies to get them the services and supports that they need. The decision in this case could make a bad situation worse for some of those parents and children because divorced parents would not be able to get child support money to help their children. This case is not available on line. However, you can download the Ombudsman's report at: http://www.ombudsman.on.ca/pdf/FINALSPECIALNEEDSREPORT.pdf *** TTY Service at Legal Aid Ontario and the Federal Government By Amy Wah, Student at Law Some people who are Deaf, deafened or hard of hearing or who have a speech disability use a TTY (short for teletypewriter) instead of a telephone. They type a message into a TTY and the message travels through telephone lines, where it is displayed on a TTY at the other end. Legal Aid Ontario Legal Aid Ontario ("LAO") started a new TTY service in September 2005. The TTY numbers to use are: Callers in Toronto: 416.598.8867 Callers outside Toronto: 1.866.641.8867 This service is important because persons who use TTYs now can communicate directly with LAO staff about the status of their applications. They also can ask general questions, such as how to apply for legal aid. Before, if TTY users wanted help from LAO, they had to send a TTY message to a relay service, and have a relay operator telephone LAO. Although relay operators must promise to keep the messages private, it is more comfortable for most TTY users to be able to communicate about legal matters without having to go through a third person. TTY users still will have to go to their local LAO office to fill out applications or file documents. Federal Government The Canadian Human Rights Commission ("Commission") released a report called No Answer on 8 August 2005. The report states that the government is not doing everything that it should to make Federal departments and agencies accessible to persons who use TTYs. The Commission found that only half of Federal departments and agencies list a TTY number to call. Worse yet, when TTY users tried to call those numbers, only one out of three calls were completed successfully. The Commission made four recommendations to the Federal government: * By 31 March 2006, develop a government-wide plan on making telephonic communications services available to people who are Deaf, deafened or hard of hearing, or have a speech impairment. This plan should point out the government's duty under the Canadian Human Rights Act to provide services that accommodate persons with disabilities to the point of undue hardship; * Publish a directory every year that includes TTY numbers for all Federal organizations; * Review new developments in communications technology to see how they can help people who cannot use the regular telephone system, and make sure that a Voice over Internet Protocol system that replaces telephone lines is designed to include assistive technologies such as TTYs; and * Set up a task force to review other federal communications issues, such as having sign language interpretation services and real-time captioning at Federal meetings and consultations, considering the special needs of persons who are hard of hearing and captioning government-sponsored television shows, videos and audio Web sites. You can read the Commission's report at: http://www.chrc-ccdp.ca/proactive_initiatives/tty_ats/toc_tdm-en.asp *** Correction Due to an editing error, the 25 August 2005 issue of ARCH Alert listed an incorrect name for the graduate program in which Tracy Odell was a student. The correct name of the program is M.A. (Critical Disability Studies), Atkinson Faculty of Liberal and Professional Studies at York University. ARCH Alert apologises for the mistake. The on-line version of the article has been corrected. *** Law Student Creates Book on Living with Disability By Amy Wah, Student at Law On October 20, 2005, Second Story Press launched Carol Krause's book called Between Myself and Them: Stories of Disability and Difference at Hart House at University of Toronto. Ms. Krause collected stories from persons with a range of disabilities and viewpoints, and edited them for the book. ARCH is looking forward to adding this book to our resource library in the near future. Ms. Krause is a second-year student at Osgoode Hall Law School. Like many, she is learning to accept life with disability. Last year she volunteered at ARCH through Pro Bono Students Canada. *** Resources on Abuse and Persons with Disabilities By Lishanthi Caldera, Reference Centre Co-ordinator As reported earlier in this issue of ARCH Alert, revised versions of the fact sheets on Abuse and Persons with Disabilities are now available on the ARCH website. We also have other resources on this topic in our resource centre. Our catalogue is available online at: http://www.archlegalclinic.ca/search/index.asp Some of the resources that are available are: General Harm's Way: The Many Faces of Violence and Abuse against Persons with Disabilities. Roeher Institute, 1995 Sobsey, Dick. Violence and Abuse in the Lives of People with Disabilities: The End of Silent Acceptance? Paul H. Brookes, 1994 Abuse in Institutions Speaking out against Abuse in Institutions: Advocating for the Rights of People with Disabilities. Roeher Institute, 1997 Sexual Abuse No More Victims: A Manual to Guide the Legal Community in Addressing the Sexual Abuse of People with Mental Handicap. Roeher Institute, 1992 Mansell, Sheila and Dick Sobsey. "The prevention of sexual abuse of people with developmental disabilities." In Developmental Disabilities Bulletin, Vol. 18, No. 2, pp. 51-66 To use these resources or to find other resources on abuse, please visit the ARCH Reference Centre. Our library is open to the public from 10 a.m. to 4 p.m. weekdays. ARCH is located at the corner of Bloor Street and Sherbourne Street, 425 Bloor Street East, Suite 110, Toronto, less than 100 metres from the Sherbourne subway station. For further information, please contact Lishanthi Caldera at 416.482.8255 x227. ARCH ALERT is published by ARCH Disability Law Centre. It is distributed free via e-mail, fax, or mail to ARCH member groups, community legal clinics, and others with an interest in disability issues. ARCH is a non-profit community legal clinic, which defends and promotes the equality rights of persons with disabilities through litigation, law/policy reform and legal education. ARCH is governed by a Board of Directors elected by representatives of member groups reflecting the disability community. The goal of ARCH ALERT is to provide concise information, so that people are aware of important developments and resources. Articles may be copied or reprinted to share with others provided that they are reproduced in their entirety and that the appropriate credit is given. We encourage those who receive it to assist with distribution of information in this way. We do ask that both Word and Text Formats are distributed to ensure accessibility. Charitable Reg. #118777994RR01. Editor: Heidi Lazar-Meyn & Reference Centre Co-ordinator Lishanthi Caldera Production & Circulation: Theresa Sciberras We welcome your comments and questions, as well as submissions. We will endeavour to include all information of general interest to the community of persons with disabilities and their organizations, but reserve the right to edit or reject material if necessary. We will advise you if your submission is to be edited or rejected. Please assist us in your submissions by being brief and factual. Please address communications regarding ARCH ALERT to: Theresa Sciberras, Administrative Assistant, ARCH Disability Law Centre, 425 Bloor St. E., Suite 110, Toronto, Ontario, M4W 3R5, fax: 416-482-2981, TTY: 416-482-1254, e-mail: scibert@lao.on.ca Website: www.archlegalclinic.ca 425 Bloor Street East, Suite 110 Toronto, Ontario M4W 3R5 (416) 482-8255 (Main) 1 (866) 482-ARCH (2724) (Toll Free) (416) 482-1254 (TTY) 1 (866) 482-ARCT (2728) (Toll Free) www.archlegalclinic.ca (416) 482-2981 (Fax) 1 (866) 881-ARCF (2723) (Toll Free)