Groundbreaking Ontario Human Rights Special Education Decision

Very interesting news here:

For what appears to be the first time, a Human Rights Tribunal has applied the principles set out by the Supreme Court of Canada (SCC) in the recent human rights/special education case of  Moore v. British Columbia (Education) 2012 SCC 61 (Moore). You can find a discussion of the SCC decision here.

The mother in RB v Keewatin-Patricia District School Board approached the Ontario Human Rights Tribunal following a series of incidents and failures to appropriately accommodate her child, who had been diagnosed with Pervasive Developmental Delay Not Otherwise Specified (“PDD NOS”). These incidents had repeatedly been raised by the parent and escalated to the School Board level without any resolution.

Starting in Kindergarten, the child had been provided with an IEP (aka IPP) and Educational Assistant (EA) support. However, his EA support was cut quite significantly in Grade 2, despite the parent's objections. There were also allegations that the child's EA was being inappropriately forceful with him. Issues continued throughout Grade 3, including segregation in and outside of the classroom and teasing and bullying by other students. Not surprisingly, behaviour issues intensified.

Eventually the child was "excluded" (presumably suspended) from school by the Principal for inappropriate behaviour, including swearing, using profanity, spitting, yelling, cutting a child’s sweater, stomping on a child’s leg, throwing material and being generally non-compliant. The parent was advised that he could not return to school until a psychological assessment was completed by the Board's school psychologist and the Board was confident that his return would not compromise his or other students' physical and mental well-being.

During this time, he was provided with instruction from an itinerant teacher three hours per week. The parent supplemented this instruction and due to her good rapport with the itinerant teacher, the child made significant academic gains, going from reading at level 2 when he was "excluded" to level 7 four months later.

But in an interesting twist, not only had the child been *excluded* from school for several months in Grade 3, but the mother had also withdrawn him from school the previous year for a period of time. Get the picture?

I would like to say that such fact situations are rare. Sadly, you and I both know they aren't. In fact, I can think of three very similar situations right here in Nova Scotia, without even giving the matter much thought. The difference, sadly for us in Nova Scotia, is in how the local situations ended.

At any rate, the Ontario Human Rights Tribunal found several failures to accommodate the student, including

A Primer on ... Guardianship

While collecting links for that last post, I came across an interesting collection (the majority of them new) of legal websites that actually discuss adult guardianship in Nova Scotia.

That was quite surprising given that the last time I checked (admittedly maybe six to twelve months ago), there appeared to be a distinct lack of helpful sites on the subject. Lots to be found on child guardianship in Nova Scoita, to be sure; but not so much on adult guardianship.

At any rate, nice person that I am, I thought I might share these sites with you. So here goes:

• Guardianship of Adults (Legal Information Society of Nova Scotia) -
  It's nice to see that the Legal Information Society of Nova Scotia has finally completed the adult guardianship section on their site. The page answers the most basic burning questions, such as:

What is guardianship? 

Who is an incompetent person? 

Who can be a guardian? 

How is a guardian appointed? 

Are there protections if the guardian fails in their duties? 

What are the responsibilities of a guardian? 

What is included in an inventory? 

How does a guardianship end? 

What does a guardianship application cost? 

Are their alternatives to guardianship? 

It also provides a list of places where one can go to get more information on the subject. Given that online information is only as good as its source I would highly recommend the Legal Information Society of Nova Scotia's site.

• How to File a Guardianship Application in Supreme Court of Nova Scotia - This page (part of the Courts of Nova Scotia site) had been previously lacking, only setting out a small bit of basic information. But I see that they have now expanded the page to actually set out the entire process, step-by-step, in making a guardianship application.

• Guardianship of Adults (Taylor MacLellan Cochrane)- A word of caution with this one: although I included it because it sets out a lot of important and related information in an easy-to-read manner, it is a little out of date.

Meaning it would be best to tread carefully (and carry a big stick) through the material under the heading "Court Hearings" on p.4 (you will see it refers to there being two separate court hearings (this is no longer the case  - basically, we just start with the "second hearing" - there is no "first hearing" anymore) and amount set out as "Lawyer's Fees" on p. 6 (fees have obviously increased significantly since the making of this document).

However, other than those two things, it looks like it would be well worth your time.

Note to Taylor MacLellan Cochrane: You really need to update the material on your website.

So lots of good information there, to be sure, if you have the desire need to learn more about how guardianship works in this Province.

Of course, there is another great source of information available online on guardianship in Nova Scotia made available by yours truly. I just wouldn't want you to forget. '-)

Decisions About Health and Personal Care: What does it take to be legally capable?

For those interested concerned with issues around "consent" (and that should be all of us), might I suggest the recent presentation given by Professor Sheila Wildeman, a law professor at the Schullich School of Law (aka Dalhousie Law School).

Prof. Wildeman has a deep understanding of the issues involved under the Incompetent Persons Act and other relevant legislation in Nova Scotia. Beginning with the now well-known story of Jenny Hatch (the young American woman with Down Syndrome who successfully fought her parents' guardianship application), Professor Wildeman goes on to examine the current state of the law surrounding "legal capacity" in Nova Scotia in regards to guardianship and health and personal care decisions.

But she doesn't just offer a useful tour through the current state of the law - Professor Wildeman does an excellent job of setting out the fundamental values that are at stake here and explaining the differences between substitute decision-making regimes (such as guardianship) and supported decision-making (one of the newest buzz terms in the disability community).

Yes, the lecture is lengthy but I highly recommend it for anyone who wants to get a real grasp on these issues. Because, really, without a firm grasp on these issues, how we can expect to advocate effectively for ourselves and our loved ones?





On a related note, I present to you ARCH's analysis of the recent Supreme Court of Canada decision in Cuthbertson v. Rasouli, 2013 SCC 53.

In Cuthberton, the SCC was asked to examine the process that the law requires when an incapable person is unable to provide consent or refusal in situations involving life support.  Decided under Ontario's Health Care Consent Act, the Court concluded that “treatment” under this Act extended to withdrawal of life support, contrary to the arguments of the doctors.

A Little Not Enough

Access to justice has become the most recent buzzword phrase in the legal community across Canada (and just happens to be a pet issue of mine - hence, the creation of the Nova Scotia Legal Guardianship Kit).

Sadly enough, this latest announcement from Nova Scotia Legal Aid, I, personally, have to categorize as "a little not enough".

Case Study on Holding Government Accountable for its Promises?

Below is the text of an email I recently received through the Disability Coalition. Reading through it, it felt a little like I was reading a case study on how to actually hold a government accountable for its promises.

What say you? Would/could this kind of approach work in Nova Scotia with our new provincial government?

If so, perhaps it's time to get moving.

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE UNITED FOR A BARRIER-FREE ONTARIO 

New Toronto Star Editorial Backs Our Call for the Ontario Government to Reveal Its Plans for Enforcing the Accessibility for Ontarians with Disabilities Act  

SUMMARY
On October 31, 2013, the Toronto Star ran a hard-hitting editorial, set out below. It calls on the Ontario Government to at last make public its plans for enforcing the Accessibility for Ontarians with Disabilities Act. It is a real boost to our non-partisan campaign to make Ontario fully accessible for all people with disabilities, when a major newspaper runs an editorial that backs our cause. 

Here, the Star backs the Freedom of Information application that AODA Alliance chair David Lepofsky filed on August 15, 2013 to unearth the Government's actions to date and plans for enforcing the disabilities act. This editorial has been widely circulated in cyber-space. It has been re-tweeted many times. 

After we set out this editorial, below, we give you links to several other newspaper editorials over the years that have backed the position of the AODA Alliance, or its pre-2005 predecessor coalition, the Ontarians with Disabilities Act Committee. 

There have now been 285 days since the AODA Alliance wrote the Ontario Government for information on the Government's plans to keep its election promise to effectively enforce the Accessibility for Ontarians with Disabilities Act. Read the AODA Alliance's unanswered January 22, 2013 letter to the Ontario Government, requesting the Ontario Government's plans for enforcing the Accessibility for Ontarians with Disabilities Act

How we can effectively advocate for a strong and effective Accessibility for Nova Scotians with Disabilities Act *

The new Nova Scotia provincial government has promised to pass an Accessibility for Nova Scotians with Disabilities Act. Nova Scotians now must gear up to make sure this new law is passed - and that it is strong and effective.

The Canadian Council of the Blind’s Advocacy & Awareness Chapter invites you to attend an exciting public meeting to discuss creative strategies for advocating for a strong disability accessibility law for Nova Scotia. Keynote speaker is David Lepofsky, Chair of the AODA Alliance, a disability consumer advocacy group that works to support the full and effective implementation of the Accessibility for Ontarians with Disabilities Act.

In 2005, Ontario became the first Canadian province to pass a disabilities Act. This was the result of a tireless, tenacious 10-year campaign by Ontarians with disabilities. David Lepofsky led that campaign. He now leads the coalition that advocates to get Ontario’s disabilities Act effectively enforced. Manitoba is now about to pass its own disability accessibility law. Nova Scotia is on the road to becoming Canada’s third province to do so.

Come discover what lessons Nova Scotians can learn from the Ontario and Manitoba experience. Find out how you can help us ensure that the promised Nova Scotia accessibility law effectively addresses all disabilities and all barriers.

Date: Sunday, November 3, 2013

Time: 10 a.m. to Noon

Location: CNIB Centre, 6136 Almon St. in Halifax

RSVP: by Thursday, October 31 by calling Peter Parsons
at 453.1480 ext. 5713 or email peter.parsons@cnib.ca

David Lepofsky is a lawyer, author, lecturer, motivator and a leading advocate for disability issues and rights; he is also blind. He successfully sued the Toronto Transit Commission to force it to audibly announce all subway and bus stops. His work with men and women with disabilities, with organizations and governments led to the Ontarians with Disabilities Act 2001 and the Accessibility for Ontarians with Disabilities Act 2005. He was awarded the Order of Canada in 1995 and the Order of Ontario in 2008. He has given training to people with disabilities and their supporters across Ontario and elsewhere on how to win positive change.

We hope to see you there!

" An Email Missive

Blog Action Day - Standing Up for Human Rights

HUMAN RIGHTS .... a BIG HUGE topic, but one that surely could not be more relevant to those in the disability community and their families.

Looking back at the topics we have discussed over the past six years on this blawg; be it education, transportation, recreation, employment, medical care or housing, bottom line, aren't we really talking about the same thing - about the right to equality, the right to have the same access to the same services and (even more importantly, the same opportunities) as everyone else?

Yes, there will always be those that have it worse than you and I, than mine and yours. Just think of what it must be like to live with a disability in a third world country or a country where you are, irrespective of your disability, of the *wrong* gender or race. Then again, come to think of it, you could be an Aboriginal child with a disability living right here in Canada. Think of how much worse your life could would be.

But that really isn't the point, is it?

Of course not - the point is that no matter where we live, no matter who we are, we are all entitled to the same basic human rights. Not because the government of the day happens to agree or because we live in relative wealth, but because of one simple, inescapable fact - male or female, old or young, no matter our race or gender identity or sexual orientation or any other difference, no matter where we happen to live on this earth ...

We.

Are.

All.

Human.

And yet, simply *having* these rights is obviously not enough. Like any other "right", such rights would be meaningless without a mechanism of enforcement.

And as I turn my mind to the legal world, to "the law", I can only sincerely and humbly thank those who had the grit, determination and drive to realize the obvious and fight to have those rights enshrined as part of our law. And, in Canada's case, not just as part of the law. but as part of the highest law of the land, our Constitution.

But, sadly, two steps forward and one step back seems to be the way of life in so many ways. For even though sec. 15 of the Canadian Charter of Rights and Freedoms guarantees that every individual is "equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability" and even though Canada is a signatory to both the Universal Declaration of Human Rights and the United Nations Convention on the Rights of Persons with Disabilities, we are still forced to stand up and fight for these rights over and over, right here in Canada.

So it is that I can only offer my eternal gratitude to those, both inside and outside the disability community, who have stood up to demand that these rights be, not just recognized, but given real meaning; to those who have stood up for the rights of our parents, our siblings, our children, our friends, ourselves.

But as I write this I realize that what concerns me, personally, most of all in this matter are those in the disability community who, for whatever reason, will not stand up and be counted, not stand up and be heard, not stand up and support others in their fight for equality. For it is only if we all stand together that any one of us can be truly successful.

And so I leave you to ponder the famous words of Martin Niemöller:

First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.

Meanwhile, in the Twilight Zone

I had the strangest experience at my youngest's school the other day.

Apparently they are somewhat new to this whole IPP thing so they thought they would have a Parent Information evening to explain the program planning process and pass some other information on to parents.

Needless to say, I am intimately familiar with IPPs - in fact, much, much more intimately familiar than I would like to be.

So I sat and listened .... blah, blah, woof, woof, yadda, yadda ... on and on it went until these Words of Blasphemy were uttered:

An IPP is a legal document.

Yep, I kid you not. Those very words were spoke.

Words of Blasphemy because, as we all know, the Dept of Education and at least my school board has been swearing up and down for years (for the past  15+ years to my personal knowledge) that

IPPs.

Are.

Not.

Legal.

Documents

After my head stopped spinning, I put up my hand to clarify that I had heard correctly. Apparently, I had.  In fact, one woman sitting in the audience (I'm thinking a parent but perhaps also a teacher from another school?) went so far as to pipe up and affirm that yes, they were indeed legal documents as they were found in the legislation.

"Yes. I know they are mandated in the Education Act," said I. "But I am just very surprised to hear you say that considering that the Dept and our school board have been telling parents for years that they are not legal documents."

Once again, I was assured that they were, in fact, legal documents. Indeed, the Department had so declared.

Feeling all eyes upon me and the need to say something, I responded, "Okay, maybe they've changed their minds or something", (with the sarcasm apparent only to myself).

But, when the headmaster responded that he didn't know why I would have heard such a thing, why it would have been said that they were not legal documents, I couldn't resist. I mean, really, could you have?

"I don't know. Perhaps they were telling parents that because they just didn't want anybody to sue based on them", I quipped.

The look on the headmaster's face?

Priceless.

Good News on the 'Special Needs' Policy

Some very good news to share on that "special needs' policy under Income Assistance that the Nova Scotia government quietly changed in August, 2011.  Remember this?

Well, I am pleased to report that as of October 1st, that policy has been changed again. This time in a good way. Check it out.

Changes to Nova Scotia's Special Needs Policy

"Never doubt that a small group of committed people can change the world. 

Indeed, it's the only thing that ever has."

~Margaret Mead

The Best Laid Plans

I was really looking forward to doing a one-day workshop in Bedford in October - October 19th, to be
precise. I say "was" because at the moment it's not looking so good.

You see, there's this great parent advocate in Bedford who offered to host the presentation. Last year, we put on a half-day workshop, but this year she agreed to host the whole shebang:

• Understanding the Legal Options to Support an Adult with an Intellectual Disability;
• Protecting Your Child's Financial Future;
• Government Money Most Families Leave on the Table

We have repeatedly asked people to pre-register with Jocelyn but .... alas, this has not been happening.

So, please, anyone who is interested in attending, do pre-register with Jocelyn

jocelyntingley@gmail.com

And for anyone who wasn't planning on attending but now thinks maybe they should (because you really should*, you know) .... well, you know the drill.

* Of course, it's entirely possible that I could be biased,but, speaking as one family member to another family member, this is information you really need to know.

I Get By ... With a Little Help From My Friends

I came across this on FaceBook* the other day - you will see that it purports to tell us how each of Nova Scotia's three mainstream political parties has promised to address the needs of families of children with special needs in the early years:

Perhaps it's not fair to say *purports*; after all it does qualify itself to "the early years".

Having said that, here are my thoughts:

It looks like the NDP column is missing that latest announcement about "closing institutions, a more individualized approach in terms of care and funding, and a new emphasis on changing mainstream services to better accommodate people with disabilities". Just for the record, that announcement also included rewriting the Incompetent Persons Act**, the Adult Protection Act and the Homes for Special Care Act.

Does anyone else get the impression that the PC are looking towards Charter schools? You've got to like that promise to pass a Tuition Support Program Act but I have to wonder what their "ensure all children are ready to learn" promise actually translates into ... specifics, people, specifics.

It would appear that the Liberals are the only ones to even mention the "Lifespan Needs for Persons with Autism Spectrum Disorder" document (good on them), but then again it's only a promise to *review the recommendations*, not actually implement them.

Who? Me?? Cynical?!

So, does anyone else have any other thoughts on these platforms?

* With thanks to Catherine in the Choice Words group.

** Rewriting the Incompetent Persons Act would be huge - currently Nova Scotia has the dubious distinction of having the most archaic guardianship system in the country. And it wouldn't take a lot of work - the Law Reform Commission offered a new draft Act back in 1995.

Remember What Mama Always Said ...

I generally try not to stray too close to the issue of politics on this blawg; after all, you know what Mama always said about polite dinner table conversation.

BUT.

There is an election coming up, isn't there? Why, yes, I thought I heard something about that.  So when this showed up in m inbox today, I decided to pass it on. Just consider me the messenger.

And please remember what else Mama said ....

Don't Shoot the Messenger

Good afternoon,

I am writing to you from the Nova Scotia Association for Community Living -  a province wide association of family members and others working for the benefit of persons of all ages who have an intellectual disability. We work strategically with other disability rights organizations and, in particular, with Nova Scotia People First. 

 We are encouraged by the recent announcement from the Dexter government regarding the proposed transformation of Services for Persons with Disabilities. The Roadmap  is well worth the read - Choice, Equality and Good Lives in Inclusive Communities. You are also invited to read NSACL`s response to the announcement, which can be found on our website 

NSACL believes that we the people need to be champions of this new direction if indeed we want this to be the reality for persons with disabilities in Nova Scotia. It is a shift in the will of  the government and one of the most promising signs that we Nova Scotians have heard in a very long time. I have attached the Executive Summary which neatly summarizes the 55 page document that perhaps... you could use as a reference when politicians come a knocking at your doorJ  I hope you find this helpful.

 All the best

Jean

The Executive Summary of which the lady speaks can be found here *

But whatever your politics may be, no matter how frustrated you may feel with our current government, let me say this  .... NOW is the time to hold ALL our politicians accountable and responsible.

Election promises always often ring hollow, so all we really have to go by is past performance. And when you're considering past performance, please make sure you compare compare the past performance of EVERY party that seeks your vote.

And make sure to have a nice long chat with the next politician who rings your doorbell or attempts to shake your hand at some community event.

* Trust me, it's a lot shorter than the document at that first link.

Back By Popular Demand

Okay, maybe "demand" isn't quite the word, but I can tell you it sure was popular! And since it is that time of the year again...

Oh yeah, I decided to be extra nice today -you don't even have to click on the link back to the original post.

And yes - yes,I did check all the links and there are still valid. But if anyone knows of any other relevant document that I missed, please include the link in the comments.

Happy Reading

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.