Ontario does not have to pay for a specialized autism treatment for children age six and older, the province's Court of Appeal ruled on Friday.

The Ontario government had appealed an earlier court ruling in favour of a group of about 30 sets of parents with autistic children who wanted the province to continue paying for applied behavioural analysis (ABA) past that cut-off point.

Mary Eberts, left, the lawyer who represents 28 sets of parents involved in the lawsuit, said she was 'extremely disappointed' in the decision. Sheila Laredo, right, is one of the parents.
(CBC)

That ruling found the government's decision to cut funding at that age was discriminatory, and ordered the province to pay what could have amounted to tens of millions of dollars.

But in Friday's decision, the Appeal Court found there was "no factual basis" that the treatment is the only effective program for children with autism and, compared with special education programming for other children with disabilities, autistic children were not being treated differently.

The court agreed with health experts that the time period between age two and five provides a unique window of opportunity for such an intensive intervention program, and that children over age five are in school and wouldn't have the time for the 20 to 40 hours needed for the therapy.

Autism, or autistic spectrum disorder, is a neuropsychiatric disorder that affects aptitude for communication and personal interaction. It's estimated to affect between two to six children in every 1,000.

In ABA, which costs between $30,000 to $80,000 a year per patient, therapists lead children through multiple repetitions of tasks until they are learned. It was developed by Norwegian doctor Ivar Lovaas in the 1980s as an early intervention therapy.

Appeal to top court in works

Mary Eberts, the lawyer who represents 28 sets of parents involved in the lawsuit, said she was "extremely disappointed" in the decision.

"The court seems to have taken a strictly legalistic view of the Charter [of Rights]," she said. "It seems they were on a different case than we were."

Eberts said a number of other parents in the lawsuit have already instructed their lawyers to seek leave to appeal from the Supreme Court of Canada. She said her clients will decide their next step within a week or two.

Sheila Laredo, one of the parents involved in the lawsuit, said ABA has made "all the difference" for her two sons with autism. Her 10-year-old son Spencer has learned to speak, read, write, spell and make friends, she said.

"It's just night and day," said Laredo, who is a physician. "He wouldn't be where he is today without ABA."

She rejects the government's claim that it's too expensive, saying the cost of treating autistic children in their younger years will help them develop skills for the rest of their lives.

"It prevents our society from having to pay for our kids in the next 60 years of their life," Laredo said.

Since 2000, Ontario has been paying for children to receive the treatment until they turn six.

Last year, an Ontario Superior Court judge ruled in favour of 30 families with autistic children who wanted the province to continue funding ABA past age six, arguing the cut-off was discrimination based on age.

In that decision, Judge Frances Kiteley wrote that "the defendant has violated the rights of the infant plaintiffs."

The province appealed the ruling, arguing that the Supreme Court of Canada had previously ruled in support of a province's right to decide which programs are appropriate.

Premier Dalton McGuinty had said he didn't like the idea of a "court-mandated expenditure."

Supreme Court backed B.C.'s position

In 2004, the Supreme Court refused to order the B.C. government to fund ABA saying the province had the right to set its own priorities for health-care funding.

The top court overturned two lower court rulings, backing the province's position it isn't  required under the Canada Health Act to pay for all medically required treatments.

The publicly funded health-coverage plan is "a partial health plan and its purpose is not to meet all medical needs," Chief Justice Beverly McLachlin wrote in the judgment.

"The Canada Health Act and the relevant British Columbia legislation do not promise that any Canadian will receive funding for all medically required treatment."