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Medical Law - Autism-Related (2). Ontario (Minister of Children, Community and Social Services) v. D.I
In Ontario (Minister of Children, Community and Social Services) v. D.I (Ont Divisional Ct, 2025) the Divisional Court allowed a Crown-initiated JR, here from HRTO findings that the respondent "had a prima facie case for discrimination" and "the discrimination could not be saved under s. 14 [SS: 'Special programs'] of the Code".
In this second related autism funding case [first is: 'A.H. as represented by their litigation guardian G.H. v. Ontario (Minister of Children, Community, and Social Services)'], the court again summarizes recent Ontario autism funding programs for children:Historical Context of the OAP
[52] Ontario has funded and delivered provincial autism programs for children for close to 25 years. In the early 2000s, Ontario provided funding only for early intensive intervention based in ABA for children between the ages of two and five. That program was challenged by families of children who were six years old and over in Wynberg v. Ontario, 2006 CanLII 22919 (ON CA), 82 O.R. (3d) 561 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 441. The families argued that the program, as it then existed, violated s. 15 of the Charter by discriminating on the basis of age. The Charter challenge was ultimately dismissed by the Court of Appeal and leave to appeal to the Supreme Court of Canada was denied. The Court of Appeal held that the age limit was not discriminatory but was rather designed to take advantage of the evidence-based “window of opportunity” that exists for children under the age of six to derive the greatest benefit from intensive ABA services: at para. 188. The Court held alternatively that any discrimination was justified under s. 1 of the Charter: at paras. 147-90.
[53] Ontario’s autism program has undergone several changes since the Wynberg decision.
[54] As of 2017, the original, intensive intervention program was merged with another program available to all children with autism up to the age of 18, resulting in the first OAP. Under the first OAP, all children and youth were eligible to receive ABA-based services pursuant to a clinical assessment resulting in a Behaviour Plan. Only the services of ABA providers could be purchased under a Behaviour Plan, and there were no caps on the hours of services a child could receive.
[55] Ontario’s uncontradicted evidence was that, with service providers setting each Behaviour Plan budget themselves and without any caps on the amount of services that could be funded by these plans, the total cost to the Ministry of the OAP ballooned. At the same time, new demand for the OAP continued to increase. The evidence before the Tribunal was that one in every 68 children is diagnosed with ASD.
Inequity in first OAP with ballooning costs servicing only 15% of children with autism
[56] As noted above, significant equity issues plagued the program. Ontario had also heard from stakeholders that there was limited financial and workforce oversight with the OAP, due to what was clearly understood to be a conflict of interest: the clinicians assessing and setting the individual service intensities and funding levels within Behaviour Plans were the same individuals providing their services to families and receiving the family’s OAP funding as their compensation.
[57] Ontario’s undisputed evidence was that these significant issues with the previous version of the OAP were the impetus for the changes to the program beginning in 2019. The Tribunal noted Ontario’s evidence that “the earlier version of the OAP, if it had been allowed to continue in its earlier iteration, would have meant that young children, who are deemed to benefit the most from the program, would never have been able to access any funding, given that there was a finite amount of funding available to the OAP”: at para. 170. The Tribunal accepted that the reasons for the significant and major changes in 2018 were prompted by the increasing costs of the existing program, coupled with the fact that, in spite of the increasing costs, the program was only serving a small percentage of the children who could potentially benefit from and were eligible for accessing the OAP.
[58] The Tribunal accepted that the Ministry’s goal at the time was “to ensure that all children deemed eligible for the OAP received at least some needed and beneficial services” including earlier intervention that was deemed particularly important and effective for them before they entered school: at para. 176.
[59] In 2019, the Ministry proceeded to engage in an extensive consultative and expert advisory process to completely redesign the OAP. The Ministry at the same time almost doubled the annual budget from $361.5 million in 2018 to $667 million in 2019.
The Redesigned OAP
[60] The redesigned OAP is the product of an extensive consultative and expert advisory process. The new program consists of five Ministry-funded service pathways for children and youth under the age of 18 eligible for the OAP. The application before the Tribunal primarily concerned the Core Clinical Services pathway, which funds the purchase of clinical services including ABA therapy. The application before the Tribunal additionally concerned the transitional measures to bridge in-service (legacy) children from the previous program to the new one.
[61] Funding provided to families through the Core Clinical Services pathway can be used to purchase eligible clinical services of their choosing, including ABA-based services, speech language pathology, occupational therapy, mental health services and technology, supplies and other therapy equipment recommended by a regulated professional or BCBA. Families have the choice of how to spend their Core Clinical Services funding allocation (i.e., they could spend it all on one type of clinical service or several).
[62] Families seeking to access Core Clinical Services complete a Determination of Needs assessment with a Care Coordinator at an independent intake organization which identifies the child or youth’s level of support need - limited, moderate or extensive - relative to peers in their age group, which is then tied to the annual funding allocations set out in the chart below.
[SS: chart omitted, see original case linked above at para 62]
[63] The process re-occurs once yearly. The funding available for each category of need decreases over time as the children age.
[64] The Core Clinical Services program includes a process to dispute a child’s assigned level of need. Families who are in core clinical services have a dedicated care coordinator to assist in service navigation to access other services and supports. There is, however, no mechanism to seek an exception to the allocation of capped funding based on chronological age.
[65] The OAP also includes four other pathways, which were not directly challenged in the applications before the Tribunal. In addition to Core Clinical Services funding, D.I. at age 11 has access to two of them – the Foundational Family Services and Urgent Response Services pathways in the redesigned OAP:. The Foundational Family Services pathway, available to all OAP-eligible families, uses a range of professionals to build family and caregiver capacity to support children’s learning and skill development (e.g., coaching a parent on issues faced at puberty); and
. Urgent Response Services, available in response to specific, urgent needs, include support to stabilize the urgent situation, prevent a crisis and reduce the risk of child or youth of harming themselves, others and/or property. [66] When the redesigned OAP was launched, families of children such as D.I. that were receiving funding under a legacy Behaviour Plan were transitioned into the redesigned OAP to ensure service continuity. This transition has been completed, with all families who had Behaviour Plans having been transitioned into Core Clinical Services by the end of September 2023. Ontario’s undisputed evidence before the Tribunal was that completing this transition allows the resources devoted to maintaining legacy Behaviour Plans to be fully invested in the redesigned program and for more children to get off the waitlist and access Core Clinical Services.
Other Ministry-Funded Services and Supports
[67] Ontario’s undisputed evidence was that families of children with autism can also access a range of Ministry-funded services for children with special needs in addition to the OAP. This includes pre-school speech and language programs, children’s rehabilitation programs, Special Services at Home funding, respite programs and Complex Special Needs (“CSN”) funding. Under CSN, children with particularly extensive and complex special needs (not limited to autism diagnoses) can be assessed and provided with a range of additional supports and services including residential placements. Supports funded by the applicant Ministry are separate and in addition to supports made available for children and youth with autism through the Ministry of Education and the Ministry of Health. . A.H. as represented by their litigation guardian G.H. v. Ontario (Minister of Children, Community, and Social Services)
In A.H. as represented by their litigation guardian G.H. v. Ontario (Minister of Children, Community, and Social Services) (Ont Divisional Ct, 2025) the Divisional Court allowed a JR, here against an order that dismissed an HRTO claim involving an autistic child alleging age and disability discrimination.
Here the court summarizes recent Ontario autism funding programs for children:[2] A.H. is a child with Autism Spectrum Disorder. A.H. alleged that changes to the Ontario Autism Program made by the government from 2019 to 2023 discriminated against funding recipients on the basis of age and disability.
[3] Together with another applicant, D.I., the application before the tribunal was a test case for claims of another seven applicants. Our decision concerning D.I.’s claims, reported at 2025 ONSC 119, is being released at the same time as this decision.
[4] Prior to the changes made by the Government, A.H. was one of only 15% of Ontario children with Autism Spectrum Disorder who was able to access government funding.
[5] Under the pre-2019 funding program for children with Autism Spectrum Disorder funding was based on A.H.’s personalized needs as determined by an assessor who was also A.H.’s therapy services provider. There was no cap on the amount of therapy for which the Government would pay. As a result, all available funding was consumed by just 15% of those children (including A.H.) who were eligible for the funding program.
[6] The other 85% of Ontario children with Autism Spectrum Disorder received no government funding and were consigned to a waiting list.
[7] In April, 2019, the Province announced a funding model that would provide Childhood Budgets for all children in Ontario diagnosed with Autism Spectrum Disorder. The proposed budgets would be capped annually at $20,000 for therapy for children under age six and $5,000 was to be provided for every child who was six and above.
[8] That program never went forward. Rather, while the Government considered further changes, it froze the funding available to children under the old program until they transitioned into a new program. In late 2023 the Government implemented funding for Core Clinical Services, among other things. Funding on this model is provided under a grid that assigns funding caps based on three categories of assessed need and age. The funding available for each category of need decreases over time as the children age.
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