Mark Start Your Calenders Engines

As you're no doubt aware, I have been offering presentations on various legal-related disability issues for a few years now.

It all started when, as I was in the process of creating the Nova Scotia Legal Guardianship Kit, it quickly became painfully obvious how few families really understood the differences between guardianship, powers of attorney and personal directives.

The need that I had identified (and which led to the creation of the Guardianship Kit) was so much greater than *just* being unable afford a lawyer in order to commence a guardianship application. There wasn't just a cost issue, there was a true information deficit.

Many years ago, someone explained to me that "there's what you know, there's what you don't know and there's what you don't know you don't know." I pondered that for a while and soon cam to realize how true it is. I also came to realize that, sadly, it's what you don't know that you don't know that is the real killer.

For example, lawyers are not taught everything there is too know about the law - it would be physically impossible to fit that much information into our little pea brains. What we are taught, beyond some basics, is where and how to find the answers to legal questions. In other words, we're taught the legal research skills needed to find the answers to those things we don't already know.

All of which is all fine and good, but what happens if a lawyer (or anyone else, for that matter) misses a potential issue? Just who is going to research the answer to a question that they don't even realize exists?

"But what does this have to do with my presentations?" you ask.

Well, I realized that not only did families need information about the different legal options available to support an adult with an intellectual disability but there was a host of other things they needed to know about - things that, in many cases, they didn't even know existed.

Two examples? The Henson Trust and the RDSP. The Henson Trust, by the way, is a particularly good example because for far too many families, no one even realizes there is an issue until the parents have died and it is too late.

And that, my friends, is what led me to the creation of the two other presentations I offer; namely, "Protecting Your Child's Financial Future" and "Government Money Most Families Leave on the Table".

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~  ~

All this to explain to you why I am so pleased to be offering, for the first time ever, all three presentations together in a one-day workshop this Saturday, Feb. 9th, in Truro.  

The event is being sponsored by Parents Supporting Parents and pre-registration is required by emailing parentssupportingparents@;live.ca or phoning 641-2020. There is a minimum donation of $5 per person to Bright Skies Day Camp for Kids with Special Needs (which, by the way, I thought was a very nice touch) and you can get more information by visiting my FaceBook page.

But the reason I am so happy to be offering all three presentations in one workshop is because there is a fair bit overlap between the topics - for example, the Henson Trust comes up in both the "Government Money Most Families Leave on the Table" and the "Understanding the Legal Options Available to Support an Adult with an Intellectual Disability" presentations and the subject of guardianship comes up in both  "Protecting Your Child's Financial Future" and "Government Money Most Families Leave on the Table", all of which can be more than a little confusing for audience members when a related yet unfamiliar topic arises during a presentation but I only have time to explain it in a very limited way.

And all this takes me to my next question - "Will I see you there?".

I hope so.

"A Discussion and Consideration of How to Accommodate the [Student's] Disability-Related Needs"

You might recall that a few years ago, we looked at the topic of human rights in the workplace. But although we've certainly touched on the concept of human rights in education here and there (including in more depth rather recently), given that there are quite a few parents out there who are very anxious to bring forward human rights complaints on behalf of students with learning disabilities, it might be useful to look at a few more such cases through the lens of actual complaints made under human rights legislation.

To that end, let's dissect a relatively recent case (April, 2012) of two students who alleged they were discriminated against by their school's failure to properly accommodate them.

In D.S. v. London District Catholic School Board, the Ontario Human Rights Tribunal dealt with two complaints, both alleging that the London District Catholic School Board had failed to accommodate students with learning disabilities.

The first student had been diagnosed with ADHD and a mild visual-spatial learning disability. After attending school in Grades 1 and 2, he was home-schooled for a while and then returned to school on a half-day schedule in Grade 5. Several issues had arisen over the course of the school year, including a disagreement regarding when he should start attending school full-time, the level of support he would receive from the Student Program Support Teacher (especially the amount of withdrawal assistance he would receive) and when and how the school would implement certain recommendations of a private psychologist.

The family was unsuccessful, with the Tribunal finding that the Board had provided proper accommodation for the student's needs as they were known at the time, noting that there was no expert evidence suggesting that the student required a half-day schedule in order to be successful and no specific evidence as to the amount of assistance or withdrawal assistance that he should receive. The Tribunal also found that the Board had implemented the psychologist’s recommendations, albeit not exactly in the form that the parents would have preferred.

Of note, the Tribunal went on to consider the procedure that school boards must follow to in order to meet their duty to accommodate under the Human Rights Code. In this regard, the Tribunal found that compliance with the procedural aspect of the duty to accommodate does not require a Board to provide a student with everything requested. Rather, it requires that there be discussion and consideration of how to accommodate the person’s disability-related needs. In this case, the extensive discussions between the Board, parents and other professionals throughout the school year were found sufficient to fulfill the Board’s procedural obligations. [1]

The parents of the second student, who had been diagnosed with ADHD and a communications learning disability, alleged that his teachers had consistently failed to accommodate his needs, which required “chunking” (breaking down a task into smaller component parts), using “mind maps” (an aid to organize thoughts for writing), and addressing other organization issues. They also alleged that the Board had failed to provide him with adaptive technology in a timely manner.

As in the first case, the Tribunal found that the Board had met its duty to accommodate. Contrary to the allegations, the teacher had went “above and beyond what is required of a teacher to provide additional support and assistance" to the student after school hours. Although there had been a six-month delay in trialing software that would address the student's writing issues, the Tribunal found that during that time, the teacher had provided the substance of the accommodation through a non-technological process.

Importantly, the Tribunal noted that although “more” could always be done to assist a student with a learning disability, whether more could have been done is not the appropriate question in cases regarding the duty to accommodate a student’s disability under the Code. Instead, the Tribunal must ask whether there is evidence that the student has specific disability-related needs requiring accommodation, and whether the school board failed to provide accommodation sufficient to meet those needs.

This decision confirmed one of the Tribunal's previous decisions to the effect that a school’s failure to meet parents’ expectations is not synonymous with a breach of the Code. Schools and school boards have a duty to engage in discussion with the parties involved and consider how to accommodate the student’s disability-related needs but there is no requirement that a school board agree to implement all of the accommodations that a student’s parents may request. 

Further, the Code does not require a school board to implement accommodations that match the recommendations in an IEP (Individual Education Plan) or of a specialist precisely. As similar accommodation can sometimes be provided by a teacher or through the use of adaptive technology, as long as the substance of the necessary accommodation is provided, the school board will have met its duty to accommodate.

Take away points for all the would-be human rights activists out there:

• a school’s failure to meet parents’ expectations is not synonymous with a breach of human rights legislation;
• compliance with human rights legislation appears to require only "a discussion and consideration" of how to accommodate the student’s disability-related needs;
• a school board is not required to implement accommodations that precisely match the recommendations in an IEP or of a specialist
• as long as the substance of the necessary accommodation is provided, the school board will have met its duty to accommodate; and
• the importance of expert evidence setting out precisely what the particular student's "disability-related" needs are cannot be overstated

It should be noted, of course, that this is a decision of the Ontario Human Rights Tribunal and not the Nova Scotia Human Rights Tribunal. Although I believe I recall a couple of cases out of New Brunswick quite a few years ago, I am not aware of any such decisions from the Nova Scotia Tribunal.

Of course,the more jaded among us some might say that is because these types of cases have never been allowed to make it to a Tribunal in this Province. [2]


[1] It is amazing how closely the facts of this case parallel that of a Nova Scotia case from quite a few years back. When that situation was brought to the attention of the NS Human Rights Commission, the parents were shut down on the basis of a Commission policy providing that no claims of discrimination in connection with a student would be considered unless and until all avenues of appeal had been exhausted under the Education Act. Whether this policy is still in existence I cannot say; however, I was recently advised by a Commission employee that she was not familiar with any such policy and a review of the Commission's policies currently available online show no such policy.

[2] Pursuant to sec. 29(4) of Nova Scotia's Human Rights Act, the Commission may dismiss a complaint at anytime in various circumstances, including if the complaint is considered without merit, raises no significant issues of discrimination or there is no reasonable likelihood that an investigation will reveal a contravention of the Act.

Not. On. The. Radar.

I just completed a telephone survey about my impressions on how our current provincial government is doing. But before you go off on that tangent, that is not what motivated me to drop what I was doing (yeah, I was most definitely in the middle of something when the phone rang but what can I say ... I do like surveys) and write this post.

What motivated me is this - the survey was lengthy (to the point of annoyance, really) but as we neared the end of the call, it hit me like a lightning bolt - what was missing.

Anyone care to hazard a guess?

It was us.

Me.

You.

Our children.

Our families.

Oh sure, we were there. Of course, we were there. In everything from power rates to emergency health care to the HST to creating more jobs in rural Nova Scotia to class sizes in elementary school  .... on and on it went. All that stuff is important and relevant to varying degrees to all of us.

But what was missing was any reference to any issues relevant to the disability community.

Interestingly (but not surprisingly), seniors were prominently featured. Children were there. Families were there. Small business were there. But there was absolutely NO mention of the disability community or any of our issues.

The closest thing to our issues was, in fact, rather a stretch - one question on how important I felt it was to help those most in need. In my mind, that includes those in the disability community. But for most many of our fellow Nova Scotians,  I would hazard a guess that the disability community most definitely did not jump to the front of their mind when asked that question.

We, my good friends, are not on the radar.

And, if our issues are not on the radar, how in the world can we possibly expect to have them addressed?

If, when the government assesses public opinion on the importance of various issues, people are never even asked their opinion on the issues so important to us and our families, how will government ever assess (let alone grow) the political will to tackle our issues?

How, indeed.

This is a post about questions, not answers. But, should anyone have any answers, I, for one, would love to hear them.

Because, really, people ... I'm thinking we have a serious problem here.

A Tale of Three Lawsuits

Some of you might recall our discussion back in 2010 of as to exactly what duty schools and school boards have to keep our children (be they typical or challenged in some manner) safe during the school day.

In examining that issue we noted that the duty to keep students safe essentially comes from two difference sources; the Education Act and the duty of care at common law (which simply means judge-based law that is not found in legislation).

This means that in addition to the duty under the Education Act to take all reasonable steps necessary to create and maintain an orderly and safe learning environment and "attend to the health, safety and comfort of students", at common law, teachers and other educators are said to stand "in loco parentis" - meaning that they "stand in the place of parents". Thus, the duty imposed on educators is that of a "reasonably careful or prudent parent in the circumstances", a higher standard of care from normal negligence cases involving adult defendants -  the educator must not just act as a reasonable person but as a "reasonably careful or prudent parent:".

Expanding a bit on our previous discussion, today I came across an interesting article written by an American "education expert" on this very topic. And while you might question the relevance of something written from the American perspective, the fact is that the common law duty applicable in the US is very similar (if not identical) to that in Nova Scotia. The reason being that although the legislation is often very different in the two countries, the US inherited its common law from Britain, just as we did.

In any event, the article examines the exact same legal issues we previously discussed (educators standing in loco parentis, the standard of the reasonable and prudent professional and the test of foreseeability) and then applies these principles to three different real-life fact situations where (typical) students were injured at school.

In two of the three cases, the schools were found liable for the student's injuries. Can you guess in advance which ones involved liability?

Holiday Travel, Anyone?

While I do have a post brewing on some more human rights in education issues, given the time of year and the fact that I have a few other irons in the fire at the moment, I'm hoping you will forgive my tardiness. And, for now, see fit to accept this collection of potentially useful links for traveling this holiday season (or any other time, for that matter).

But first, some background on the Canadian Transportation Agency.

The Canadian Transportation Agency is an independent administrative body of the Government of Canada. It performs two key functions within the federal transportation system:

• As a quasi-judicial tribunal, the Agency, informally and through formal adjudication, resolves a range of commercial and consumer transportation-related disputes, including accessibility issues for persons with disabilities. It operates like a court when adjudicating disputes.

• As an economic regulator, the Agency makes determinations and issues authorities, licences and permits to transportation carriers under federal jurisdiction.

Part of the Agency's mandate includes dispute resolution (resolving complaints about federal transportation services, rates, fees and charges) and accessibility (ensuring Canada's national transportation system is accessible to all persons, particularly those with disabilities).

And, by the by, the CTA is also the Agency responsible for the historic One Person, One Fare” decision, in which the the right of  individuals with disabilities to have access to a second seat when traveling by air in Canada without having to pay a second fare for an attendant or other use, to accommodate their disability was recognized.

So now that you are sufficiently versed in the "who", let me share with you the "what". For your viewing pleasure, I offer the following three documents from the CTA:

Carriage of Mobility Aids On Board Planes, Trains and Ferries
This document sets out the standards, regulations, policies and procedures concerning the carriage of mobility aids in air, rail and ferry travel. It also provides some helpful tips for those traveling with mobility aids, as well as the procedure to be followed in resolving any problems/issues.

Take Charge of Your Travel: A Guide for Persons with Disabilities
This guide helps to anticipate the questions and prepare for the challenges that can arise when traveling. Starting with suggestions on making reservations, the document goes on to look at potential issues around the terminal, getting on board and your arrival at the other end (including mobility aids, medical clearances and service animals). There are some handy reminders and advice about what to do when things don't turn out as you expected, as well as a section with useful information sources and an index to help with quick searches. A reservation checklist is also included.

Accessible Transportation Complaints: A Resource Tool for Persons with Disabilities
As the title suggests, this document deals with the procedures involved in resolving accessible transportation complaints.

I haven't personally reviewed the documents at any great length or had any reason to use them yet (although I hope to change that soon - meaning I hope our family will be doing some travel by air this summer) but I hope you find them useful, either now or in the future.

H/T to the Arch Disability Law Centre and their great newsletters

Five Minutes of Fame (Literally)

UPDATE: So how come no one has ever pointed out this mistake I've been consistently making? Apparently left = right and right = left. And the sidebar ... that's on the RIGHT-HAND side of the page. Sorry.

A big thank-you to CTV Morning Live for having me on the show this morning. I really appreciated the opportunity to discuss why guardianship (and other options) can be such an important issue for so many families.

If you're new here and have more questions, please scroll to the bottom of the page and click on the Guardianship label in the sidebar to the left. That should give you access to all the posts I have written on the subject.

You will also find labels like "Powers of Attorney" and "Personal Directives" that you might like to check out, too.

If you're interested in my upcoming presentation on Saturday, December 8th, click on the "Upcoming Presentations" tab at the top of the page.

And please feel free to stick around - hopefully, you will find valuable information in both past and future posts.

A Leap of Faith

It's been eighteen years since I've practiced law.

I stopped practicing in 1994 due to the significant health (to say nothing of other) needs of my oldest daughter. And I've always said I wouldn't go back to practice unless I could have just a "disability" practice.

In other words, not unless I could only take cases involving disability-related issues. But considering that most families with a disabled family member can't afford a lawyer and I figure that it will likely take Nova Scotia a good 20 years to get to the point where the government helps subsidize the cost of legal representation for families ... I just couldn't see it happening.

But for the past year or so, I've been playing around with the idea of doing just that ... going back to the practice of law.

What if I went back to practice? Just on a part-time basis?

What if I could offer people the option of either purchasing the Guardianship Kit or hiring me to bring their guardianship application?

What if I could, not just talk about the Henson Trust, but actually do up Wills for people with the proper wording?
What if ...?

Not only would my fees be significantly lower than the majority of lawyers' but people were already asking if they could hire me to bring guardianship applications and I had to explain that no, I wasn't practicing.

So it was that I've been playing around with this idea for a while now.

I tried to talk myself out of it ... after 18 years of not practicing, just how many hoops would the Barristers' Society make me go through before granting me practicing status again? For a while, that seemed like a good enough reason not to proceed any further.

But eventually I realized that I might just be staring in the face (and yet not seeing) exactly what I have been looking for so hard for quite a while now. This has been my passion for so many years now - how long have I been telling people that if I could find a way to marry law and disability (and get paid for it), I would be truly happy? Trust me, a very long time.

And so it was that eventually, very slowly, light began to dawn on marblehead (that would be me, in case you were wondering) and I made the decision to take the leap and return to practice. 

Now I must admit that the time between making that decision and actually commencing the process  has been a little slow but ... I am happy to inform you that yesterday I mailed my aplication to change to practicing status to the Bar Society.

What now, you ask?

Now.

  

Now I sit and wait to hear back as to what, exactly, I will have to do before I can start practicing again.

Wish me luck. Please.

Breaking News

"Adequate special education, therefore, is not a dispensable luxury."

The Supreme Court of Canada (SCC) released its much-awaited decision yesterday in Moore v. BC (the LD case out of BC) and I am pleased to report that the parents were substantially successful. "Substantially" because although the finding of discrimination was upheld against the District (aka the School Bd), it was not upheld against the Province.

But let's take a look at the finding against the District first.

With regard to the issue of whether "special education" is a service that is “customarily available to the public" (and thus protected under the BC human rights legislation) the Court found that "special education is not the service, it is the means by which those students get meaningful access to the general education services available to all students" (emphasis added).

To define the service only as ‘special education’ would relieve both the Province and the District of their duty to ensure that no student is excluded from the benefit of the education system by virtue of their disability and risked descending into the kind of “separate but equal” approach that was so famously discarded in the racial integration case of Brown v. Board of Education of Topeka. Further, the court noted that, much as I stated in the previous blawg post, to so find would mean that the District could cut all special needs programs and be immune from a claim of discrimination.

As to what constitutes discrimination in this context, the Court found that discrimination will exist if the evidence demonstrates that the government failed to deliver the mandate and objectives of public education such that a given student is denied meaningful access to the service based on a protected ground.

In this case, prima facie discrimination was found on the basis of the insufficient intensive remediation provided for Jeffrey’s learning disability, which was necessary for him to access the education he was entitled to. It was the combination of the clear recognition of Jeffrey's need for intensive remediation in order to have meaningful access to education, the closing of the intensive program and the fact that the Jeffrey's parents were told that these services could not otherwise be provided by the District that justified the finding that the failure of the District to meet Jeffrey’s educational needs constituted discrimination.

Although the District attempted to argue that the decision to end the program was justified for financial reasons (and just how often have we heard that one in one form or another?), the SCC found that although the fact that the District was facing serious financial constraints was a relevant consideration, accommodation was not a question of “mere efficiency” and disproportionate cuts had been made to special needs programs, while some discretionary programs had been retained, despite their similar cost.

In that regard, the Court agreed with the dissenting judgment in the Court of Appeal, that “without undermining the educational value of the [other program], such specialized and discretionary initiatives cannot be compared with the accommodations necessary in order to make the core curriculum accessible to severely learning disabled students”.

More significantly, the District had not undertaken any assessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the intensive program was ended.

The failure to consider financial alternatives completely undermines what is, in essence, the District’s argument, namely that it was justified in providing no meaningful access to an education for Jeffrey because it had no economic choice. In order to decide that it had no other choice, it had at least to consider what those other choices were.
[para. 52]

Significantly, no discrimination was found on the part of the Province even though the District’s budgetary crisis was created, at least in part, by the Province’s funding shortfalls as the Tribunal had found that it was the District that had failed to properly consider the consequences of closing the intensive program or how to accommodate the affected students.

In the Court's opinion, the evidence about the provincial funding regime was too remote to demonstrate discrimination against Jeffery and there was no particular reason to think that those funding mechanisms could not be retained in some form while still ensuring that SLD students received adequate support. It was found to be entirely legitimate for the Province to choose a block funding mechanism in order to ensure that districts do not have an "incentive" to over-report SLD students, so long as it also complies with its human rights obligations.

I highlight this as one of the possible areas of concern around this decision. Don't get me wrong, as noted, courts far too rarely intervene in cases involving educational policy (deferring to the schools' so-called "experts" is all too common in this area) so this decision is HUGE, but, unfortunately, it doesn't appear like it will yield much ammunition when it comes to the actual funding of special education services.

The source of all public school funding is, of course, the provincial government and the SCC clearly states that "block funding" of special education services is acceptable. Although we may now have an argument to stop any erosion of such ear-marked block funding, the sad fact is we all know that special ed is woefully under-funded and school boards often significantly top up the provincially-allocated special ed funding.

Although not a blanket prohibition on the cutting of special ed services at the Board level, where the decision is extremely valuable is in undercutting any attempt by school boards to take out their legitimate budget woes on special ed programming, at least not unless unless

• any cuts made to special ed programs are proportionate with cuts in other areas;
• other discretionary programs are not saved at the expense of special ed programming; and
• serious consideration has been given to the consequences of cuts to such programming and how students requiring the programs and services will be accommodated.

Commentary is, of course, appearing fast and furious around this decision. And while some of it is, indeed, upsetting, opinions of editorial boards aside, this decision should put lie to the (never legitimate) argument that once you let special needs students through the doors, their programming is as susceptible to cuts as any other.

As an aside, I offer you my absolute favourite line from this decision and one which will, no doubt, be quoted ad nauseum by future disability advocates:

Adequate special education, therefore, 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 ...

SCC To Weigh In on Schools' Duty to Accommodate

We're going to be taking a look at a few different human rights issues over the next little while ... mainly because I seem to have collected a number of interesting tidbits on such issues.

So let's start with one of the bigger human rights stories on the legal landscape.

Some of you are no doubt familiar with an education
case out of British Columbia from a few years ago,
Moore v.British Columbia, where a student challenged
both the provincial Ministry of Education and a school board for not providing students with learning disabilities with appropriate accommodations.

From an advocate's point of view, I find this case particularly interesting for two reasons: first, the bases on which the Human Rights Tribunal found both systemic and individual discrimination on the part of both the school board and the Province and, second, the courts' reasoning in overturning that decision (why they decided that no discrimination had, in fact, occurred). And although it might sound like I've just said the same thing twice, they are two very separate issues, as you will see.

Jeffrey Moore had a severe learning disability (SLD) but the very year he was found eligible to attend an intensive program for students with severe learning disabilities, it was cut for financial reasons. The services that were subsequently offered were not comparable to what he would have received in the intensive program and his parents later placed Jeffrey in a private school for students with learning disabilities.

The father brought a discrimination claim to the BC Human Rights Tribunal against the Province (the Ministry of Education) and the school board, alleging both individual and systemic discrimination. The Tribunal found in Jeffrey's favour, finding that both the school board and the Ministry of Education had failed to accommodate his needs in the delivery of educational services.

Individual discrimination had occurred when the school board and the Ministry failed to ensure that Jeffery’s disability needs were appropriately accommodated in the school board by not providing him with sufficiently early or appropriately intensive and effective remediation.

Systemic discrimination by the school board had occurred when services were disproportionately cut to SLD students without analyzing the impact on these students or ensuring that there were sufficient alternative services in place.

Systemic discrimination by the Ministry occurred when it under-funded the actual incidence of SLD students by imposing a cap on funding High Incidence/Low Cost disabled students, when it under-funded the Board resulting in significant cuts to services to SLD students, when it focused its monitoring only on spending and fiscal concerns, and when it failed to ensure that early intervention and a range of services for SLD students was mandatory.

Unfortunately, the Ministry and the Board were successful in their judicial review application and the Court of Appeal (CA) dismissed Mr. Moore`s subsequent appeal.

Here's where it starts to get interesting - unlike the Human Rights Tribunal, which had concluded that the service being provided was “educational programs offered by the Ministry and the [school board]” (in other words, public education services offered generally to the broad public), both levels of court found that services for students with disabilities were “special education”, not general education.

Proceeding on that basis, the courts compared Jeffery with other students who received “special education” and concluded that there was no differential treatment because no student receiving “special education” had access to the services that Jeffrey was seeking for during that period of time. In other words, it would appear that as long as you offer absolutely no "appropriate services" for students with LD, all will be right with the world.

This finding turned on the fact that the BC Human Rights Code provides that a person cannot discriminate against another on the basis of disability when that person is delivering a service that is “customarily available to the public”. Thus, the question became whether students with special needs were entitled to only “special education” services without experiencing discrimination or whether they should have the right to receive general education services without experiencing discrimination. [Can you believe we're even having this conversation?]

[The majority of the CA relied on a 2004 decision of the Supreme Court of Canada (SCC) that some of you might be familiar with (Auton v. British Columbia), in which the issue was whether the province's failure to fund applied behavioral therapy for autism violated the equality provisions of the Charter. In Auton, the SCC had held that a finding of discrimination under sec. 15(1) of the Charter must relate to a benefit or burden imposed by law - it cannot be based upon discrimination in the provision of services not provided under legislation as to do so is tantamount to dictating to the government what services should be provided.]*

The Moores appealed to the SCC, where the Canadian Association for Community Living (one of the intervenors in the case) argued that to find that students with disabilities were entitled to a separate and different “special education” service would be contrary both to the goals of BC’s Human Rights Code and the United Nations Convention on the Rights of Persons with Disabilities, both of which promote inclusive education. CACL also argued that a finding that students with disabilities were entitled to a separate and different “special education” would perpetuate the historical exclusion and disadvantage experienced by such students.

Other questions before the SCC include the use of a comparator group analysis in human rights' duty to accommodate claims and the limits on the scope of remedies that tribunals can order. Unfortunately, we can't go into those issues today, although I will note that what group the person claiming discrimination is compared to (known as comparator group analysis) can and has made a huge difference in whether or not discrimination will be found.

The Moore case was argued in March of this year and disability advocates are anxiously awaiting the SCC's decision in this case, as it should  have a significant impact on future human rights claims. Let's just hope they get it right.

* It should be noted that there was a dissenting opinion in the CA - in fact the majority of the decision (the first 162 paragraphs) is written by the dissenting judge with the majority judgment being a mere 25 paragraphs. Although unfortunately, in this case, size really doesn't matter, anyone with a legal bent might just "enjoy" reading those first 162 paragraphs or at least find them instructive.

'Unfit Solely Based on Their Disability'

A few years ago, when a lot of my work involved digesting child protection cases, I toyed with the idea of writing a blawg post on the issue of parents with disabilities whose children had been taken into care by the Province. 

Actually, I did more than toy with the idea; I began keeping track of those type of cases when they crossed my desk and started actively searching for ones from other provinces. In fact, I may still have that research around here somewhere although I would most likely be hard pressed to find it now.

Obviously, I never did get to that blawg post. Mainly because it became clear that the issue was huge and it was going to take no small amount of research and writing to put something together. And I was, in all fairness. rather occupied with other things at the time.

But the issue still fascinates (and disturbs) me from both a legal and parental point of view.

The test in such a situation is always (supposedly) the "best interests" of the child. Parents do not have a right to parent their children. Rather, children have the same basic rights and fundamental freedoms as adults and the additional right "to special safeguards and assistance in the preservation" of their rights and freedoms. And the presumption is that a child's needs will be best met in the care of his or her own family. 

But a presumption is not a certainty. Thus, parents are given legal "responsibility for the care and supervision of their children" and children are only to be removed from that supervision "when all other measures are inappropriate".

So at what point does it actually become the case that parents, due to their disability, cannot properly care for their child? And is it possible that children would ever be taken away from their parents due to some form of systemic discrimination against persons with disabilities?

But then again, can it even be that simple?

There are physical disabilities and there are intellectual disabilities. And there are individuals who have both. And, of course, most importantly, each case will should turn on its own unique fact situation, right?

All of which takes me to this report out of the US setting out the following issue:

A federal agency is warning the White House that more protections are needed to ensure the parental rights of those with disabilities.

Even as an increasing number of Americans with special needs choose to become parents, laws across the country routinely undermine their rights, according to a National Council on Disability report which was sent to President Barack Obama on Thursday.

In two-thirds of states, courts are allowed to deem a parent unfit solely based on their disability. And, disability can legally be taken into account in every state when assessing what’s in the best interest of a child, the council found.

The key, of course, is found in that last paragraph.

In two-thirds of states, courts are allowed to deem a parent unfit solely based on their disability. And, disability can legally be taken into account in every state when assessing what’s in the best interest of a child, the council found.

I have no issue with the second sentence - that "disability can legally be taken into account in every state when assessing what’s in the best interest of a child".

But it's one thing to take disability into account (just as you would take into account other factors, such as the support available to a family or parenting style) and completely another to disqualify a person from parenting their own child just because they have a disability. That, I would submit (and I'm sure you would agree) smacks of discrimination.

Apparently the National Council on Disability agrees. And the numbers are staggering.

Currently, some 6.1 million children in the United States have parents with disabilities. They are significantly more likely than other kids to be forcibly separated from their parents, the federal agency found.

Estimates suggest that among parents with intellectual disabilities, removal rates are as high as 80 percent. Similarly high rates are seen among parents with psychiatric disabilities.

Meanwhile, the council found that people with special needs are more likely to lose custody of their children after divorce and have more difficulty adopting kids.

Although I'm not aware of any Canadian province providing that the courts are allowed to deem a parent unfit solely based on their disability, I have a hunch that the situation is not that different in this country, albeit on a somewhat smaller scale. And although it would be really interesting to see the numbers for Canada, to the best of my knowledge, no one is actually paying attention. Or, at least, no one is compiling those statistics.

In the US, the National Council on Disability is recommending that new laws be implemented to protect the rights of parents with disabilities and that social services agencies work to better understand and accommodate parents with special needs.

Does that sound like too much to ask?

Light Dawns on Marblehead

As a follow-up to that July post concerning families in Indiana who were forced to legally admit neglect in order to obtain the mental health services their children required, I am pleased to report that state officials have unveiled a plan to provide such services for mentally ill or developmentally disabled children without requiring parents to plead guilty to neglect.

"This is a small, but important and complex population that presents a big struggle for many families. For decades, the only way these children have been able to get care is by entering the court system as a juvenile delinquent or to have their parents claim neglect so the child can become a ward of the state. And everyone agrees -- from state agencies, to prosecutors, to judges, to probation officers, to mental health experts, to families -- that is not the way to help these kids." -- DCS Chief of Staff John Ryan

Which, I suppose it was going to take strong pressure from somewhere to change the situation given that the state's Department of Child Services had publicly stated that the agency would not change any of its policies (those being the policies requiring parents to go through such a heart-breaking charade) even after a Court of Appeals' decision stating that a parent in such a situation should be "applaud[ed]", not "condemn[ed] ... through coercive action."

It would appear that in Indiana, at least in regard to this situation, light has finally dawned on marblehead. We can only pray (or demand) that it will also dawn elsewhere.

Paralympic Athletes Writing Next Chapter in Human Story

Reading the latest issue of the IWK's Village Voice this morning, I was struck by this piece by Warren Reed, a human rights activist in Halifax.

All 20 of the fastest times in the 2012 Boston Marathon belong to wheelchair racers. In fact, Canadian wheeler Joshua Cassidy (1:18:25) had time for a nap while waiting for Kenyan runner Wesley Korir (2:12:40) to finish. A luxurious 54 min-utes, to be exact. Gravity? The course does drop 425 feet in 26 miles — a barely noticeable three-tenths of one per cent grade — but that benefits runners and wheelers alike.

Meanwhile, the course has some daunting uphill stretches, and dragging an extra 15 pounds of wheelchair up Heartbreak Hill surely offsets any advantage from turning potential energy kinetic.

But this is apples and oranges, angels and pins. One shouldn’t be confused by the artificiality of divisions into thinking there is a single winner of the Boston Marathon, and then some women and then some wheelchairs. They’re all committed athletes, running the same race differently.

People with disabilities have a special perspective on difference — we are, in many ways, defined by it. Many of us embrace our differences as extraordinary gifts.

Some would say Stephen Hawking won a Nobel Prize in spite of his condition. People with more imagination might wonder if it’s because of his condition. Conventional thinkers see him as suffering from Lou Gehrig’s disease. (Lou, by the way, was not a bad ball player.) I’d say Stephen Hawking is a pretty spectacular physicist and that there’s a decent chance his achieve¬ment is connected to his physical characteristics. At the very least, his circumstance provides an unusual perspective on the universe.

You can read the rest of the piece by clicking on the Weekly Update: September 7, 2012 link on this page. I would suggest that you do.

One-Stop Shopping

Back to school. Ugh.

Back to school shopping. Again. Ugh.

Although, personally, I would take the shopping any day over actually having to send my kids back and start yet another year (this will be year 15 for my oldest) of "advocacy".

But do not despair. Nice person that I am, I have put together a list of ammunition documents you really should be familiar with as we start another school year.

I've tried to bring some order to the chaos by organizing them by topic but ... well, really, you wouldn't want me to take all the fun away and make it too easy, would you? Just think of it as digging through the bins at Frenchy's ... you never know when you will find a great bargain that fits you just right!

Special Ed in General
Special Education Policy Manual aka "The Bible" (2008)  -That's right, this document should be your Bible for just about any issue you might face with your school, your Board or the Department.

Life Skills: Supporting Student Success (2009) - A little-known document that can be a life-saver when your school tells you that they're very sorry but your child MUST take all these academic courses to get the credits necessary to graduate. It's not their fault; blame the Department.

OR you could just pass over this document, which sets out exactly how "life skill" credits can be and are recognized. Look at that ... a How To Guide for your school!

Increasing Learning Success (2008) - Although written more or less as a how-to guide for reorganizing high school to keep typical students engaged, there are a fair number of ideas discussed that could be very helpful for students with special needs.

Program Planning Process: A Guide for Parents (2006) - This document basically pulls out (and slightly expands upon) the portion of the Special Education Policy Manual (see above) dealing with the program planning process.

"Just how do I go about getting my child an IPP?", you ask. Look no further...

Supporting Student Success: Resource Programming and Services (2006) - Written to provide direction to school boards on the role of resource teachers and their expected competencies and to assist in the development of related policy and procedures, it is also intended to serve as a framework for professional development for resource teachers, classroom teacher and school administrators regarding the resource role in the program planning process. 

In other words, find out just how Resource is suppose to work.

Respect for Diversity: A Planning Resource (2007) - This resource came out of the Minister's Response to Addressing Bullying in Nova Scotian Schools: A Student's Perspective in 2003. (The more things change ... no?)  It's intended to be a resource for students to use to support the advancement and promotion of diversity ... meaning it's to be used a resource to assist in the planning and delivery of a school-wide Respect for Diversity Day. Never heard of such a thing? Don't feel bad ... neither have I!

It just might just be worth checking out, however. Challenge your school and see if they're up to holding their very own (and chances are, very first) Respect for Diversity Day.

Fact Sheets (Pretty much speak for themselves)
Adaptations - Strategies and Resources

Assistive Technology - Access to Learning

Inclusion - Supporting All Students (Fact Sheet)

Program Planning - A Team Approach (Fact Sheet)

Transition
Transition Planning for Students with Special Needs: The Early Years Through to Adult Life (2005) - Did you know that your child might well be entitled to an Individualized Transition Plan? But wait, what the heck is a Transition Plan? And when is this so-called "transition planning" suppose to occur?

SLP and School Psychologist Guidelines (Some hidden goodies)
Speech-Language Pathology Guidelines

School Psychology Guidelines

Student Records
Student Records Policy

Discipline
Provincial Code of Conduct and School Code of Conduct Guidelines (2008)
This. Document. Is. Very. Important.

The regulations made under the Education Act require the Minister to create a Provincial Discipline Policy (aka the Provincial Code of Conduct). All school boards are mandated to create Codes of Conduct (discipline policies) based on the Minister's Policy and each individual school is obligated to create its own School Code of Conduct. Neither a Board's nor a school's Code of Conduct can contradict the Minister's Policy.

Now listen carefully - the Provincial Discipline Policy was changed in a very significant way in 2008. Prior to that time, no provision was made to take into account a student's stage of development and special needs when meting out discipline. In fact, there was a chart which very clearly in black and white laid out specific behaviour and the consequences of such behaviour - if you do this, you will be suspended; if you do this, the police will be called in; etc.

Thankfully, that is no longer the case - the Provincial Policy clearly states that consequences for misbehaviour must be "appropriate to a student's stage of development and in consideration of the student's special needs". It is further stated that "consequences must make sense to a student as much as possible." The School Code of Conduct policy also supports the development and implementation of a comprehensive school-wide PEBS (positive effective behaviour supports) program. Behaviour is divided into "disruptive" and "severely disruptive" and a range of possible consequences are provided for various behaviours within these categories.

All of the above are very significant changes. Very significant changes that, one would presume, were brought about, at least in part, by a Charter challenge against the Province's discipline policy many years ago.

The case never made it to court and the parents involved could be forgiven for thinking it had all been for naught and no progress had been made. Or, at least, they no doubt thought that until they saw that some of the very changes they were requesting have been incorporated in the Province's Discipline Policy. We haven't made it as far as some other provinces (in particular, Ontario, includes the need to recognize a student's special needs when it comes to discipline within the regulations made under their Education Act) but we have made progress.

So the next time an administrator tells you that they have no other choice, their hands are tied, they have to suspend your child just as they would any other student who had (fill in the blank) .. you might want request both your Board's and the school's Code of Conduct and compare them to this document.

Time-Out Guidelines (2010) - Check out that date ... anyone care to hazard a guess as to the why behind these Guidelines? As so very often happens, change only seems to occur when parents GET LOUD. 

** By the way, did you notice that the practice of using time out is to be decided through the Program Planning Process as set out in Policy 2.2 of the Special Education Policy Manual? Which, to my way of thinking, requires prior parental consent (or at least knowledge) of its intended use.

Guidelines for the Use of Student Restraint (2011) - Need to know what the school can and can't do to restrain your child? Need to gently remind them that physical restraint is to be considered a last resort and only to be used when someone's safety is at risk?

IPP Appeals
School Board and Ministerial Appeal Guide (2000) - Sets out the procedure to be followed when a parent appeals an IPP; first at the school board level and then at the Department level. And, remember this, although you may not have a very good chance of success at the Board level (cough, cough), your chances improve significantly should you convince the Minister to grant you a provincial appeal.

Tuition Support
Tuition Support Program - If your child has a diagnosed Learning Disability, ADHD or autism* and you  are not familiar with the TSP, then you need to be. And take heart, the program has become a little looser than it previously was.

* Unfortunately you are more likely to find a school able to accommodate your child if they have a LD or ADHD, then if they have autism.

Guidelines Regarding Entering Into Agreements, including Tuition Agreements, for the Provision of Services and Benefits * (2011) -  These are the Guidelines that are to govern when the Program Planning Team has exhausted all options and agrees that the public school system cannot meet a student's needs. In such a case, a school board can agree to cover the total cost of the student's tuition at a private school. Just don't expect this to happen too often.
* Not to be confused with the Tuition Support Program, above

Transportation
Handbook for the Transportation of Students with Special Needs (2011)

Medical Care
Diabetes - Guidelines for Supporting Students with Type 1 Diabetes (2010)

Diabetes - Standards of Care for Students with Type 1 Diabetes in School (2008)

DNAR - Guidelines for Supporting Students in School Who Have a Do Not Attempt Resuscitation Order (2012)

Teacher Assistants (aka EAs, TAs, EPAs)
Guidelines for Teacher Assistants (2009) - Need to know the roles and responsibilities of teacher assistants? What are their expected qualifications and competencies? Unfortunately, the document doesn't quite answer many parents' burning question ... "How the heck do I get one for my child?"

Miscellaneous
Schools Plus - One of the Department's newer initiatives and worth taking a look-see at.

You can find a series of special reports here, including the Autism Management Advisory Team (AMAT) Report - Lifespan Needs for Persons with ASD.

And although not technically from the Department of Education, you might find this document useful if you find yourself trying to explain to the school why your child with autism requires a service dog at school.


One (or two) last word(s) ... it took a while to convince me, but after meeting twice with the Minister of Education last year, I am at last convinced that the Department, itself, actually has some pretty good policy documents; as just one example, I was particularly pleased to be pointed to the Life Skills document above after having been repeatedly told my child's high school that she had to sit through (what to her are) totally useless academic courses so that she could get a (to her) totally useless piece of paper (diploma). Can't do life skills as credits, huh?

Knowledge IS power. So now our challenge, as parents, is to actually find and use those documents in our dealings with our children's schools and school boards. I just did some of the leg work for you ... now it's your turn!