Anne Larcade, the mother of a severely disabled son who has waged a six-year battle with the Ontario government over its treatment of the province's most vulnerable children, is now bracing to take her fight to the country's highest court.
Ms. Larcade lost the latest round yesterday when the Ontario Court of Appeal overturned a lower court ruling that would have allowed a class-action lawsuit to proceed against the government over its treatment of disabled children.
"I am devastated," she said. "But I am not prepared to give up. I feel very strongly that the government has to be held accountable and I believe justice will prevail."
Ms. Larcade, the lead plaintiff for dozens of families in the class action, has asked her lawyer to attempt to appeal the matter to the Supreme Court of Canada.
In its unanimous decision, the Appeal Court expresses concern about the limited resources available to the government and child-welfare authorities.
"To recognize a private law duty of care would expose Ontario to claims for substantial damages by many families and individuals who believe they have not received adequate services," Mr. Justice Robert Sharpe says in the decision. "[The government's]priorities should be based on the general public interest, not on the interests of particular individuals, however difficult and sympathetic their circumstances may be."
In a nutshell, she said, the judicial system fails to see the harm that can come from not keeping families intact and from forcing them to relinquish custody in order to get treatment for a disabled child. Her son, Alexandre, now 17, suffers from brain damage and a degenerative neurological condition that is causing him to slowly regress. Ms. Larcade narrowly escaped having to give up custody of her son after her fight became a cause célèbre. Alexandre lives in a group home in Huntsville, Ont.
Dozens of other families were less fortunate. In a scathing report released last year, Ontario Ombudsman André Marin accused the government of turning a blind eye to the problem. Following an investigation by the Ombudsman's office, the government identified 83 families that had to relinquish custody of a severely disabled child on either a temporary or permanent basis.
The problem dates back to the late 1990s when the Progressive Conservative government at the time stopped using legislation designed to provide a safety net for severely disabled children. The government had passed legislation in the early 1980s on special-needs agreements to support children whose needs are greater than can be met by their parents. But the government stopped entering into these agreements in 1997, forcing families to relinquish custody to a children's aid society in order to receive treatment. Without the agreements, children's aid societies could not provide further funding for treatment unless a child was made a legal ward of the society.
Mary Anne Chambers, Minister of Children and Youth Services, said the Liberal government has invested more than $140-million in children with special needs since taking office in 2003. She said the government is focusing on only seeing children who require protection taken into custody, not those who need treatment.
"It's really important for the public to know that children in need of protection is the focus of our government," she said.
Mr. Marin said yesterday that 63 families have had legal custody reinstated since his investigation. He also said complaints from families to his office dropped dramatically after the government invested $10-million in treatment centres for children.
"That made a big dent on the problem," Mr. Marin said. "But we're still riding the government on it. We haven't abandoned the case."
New Democratic Party MPP Andrea Horwath called on the government yesterday to restore special needs agreements.