Parents with Disabilities – A brief review of Children’s Aid Society Case Law
Grace Kang, JD Candidate University of Ottawa 

Parents with disabilities face unique challenges. As delved in more detail in the previous article by my colleague, parents with disabilities face a multitude of difficulties that are intersectional and very complex. Intersectionality, a concept that describes this complexity, offers the idea that there is an interconnected element between numerous factors that is at the root of a particular individual’s challenges. For instance parents with disabilities, depending on the particular individual, will face specific hardships in parenting not only due to their disability but also their age, gender, ethnicity, socio-economic status, educational background, and so forth.  Different types of disabilities (physical, mental, learning, cognitive, environmental, etc.) also face different types of difficulties that are distinctive to that particular disability.
 
A brief review of the case law, focusing on three Children Aid Society (CAS) child custody cases in Ontario, reflects these intersectional complexities that parents with disabilities face in the legal system. It is important to emphasize that this is not an exhaustive review but a demonstration of the unique challenges that parents with disabilities face in the legal realm.
 
In Children’s Aid Society of Ottawa-Carleton v T, an expectant mother who has Cerebral Palsy and uses a wheelchair was referred to the Children’s Aid Society due to a social worker’s concern for the infant’s well being. The mother was fully dependent on her 22-year old husband, who was also the sole caretaker of his disabled father. Further, the couple’s apartment building was not accessible and there were significant safety and hygiene concerns within the living quarters. The judge expressed concerns with the overwhelming responsibility of the husband to take adequate care of his quadriplegic wife, new infant, and disabled father while maintaining employment to financially provide for his family. The judge, however, expressly stated that the mother’s disability does not mean that she is unable to parent, but due to her disability she will need substantial, daily assistance to meet the needs of her infant child. The judge specifically noted that weekly homemaker services, involvement of a public health nurse and attendant care to assist the husband in the home were necessary to meet the infant’s needs. Unfortunately, these required government-funded services were not available until 6 months after the custody hearing.
 
Section 51(3) of the Child and Family Services Act requires the Children’s Aid Society to establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a possibility that if a child is returned to his or her parents that the child is likely to suffer harm. Due to the factors mentioned in the previous paragraph, the judge determined that there was risk to the child and that the child could not be adequately protected under the care of the biological parents. The infant was apprehended by Children’s Aid Society five days after birth and was placed in temporary custody of the maternal grandmother.
 
In another case, Children’s Aid Society of Peel (Region) v K(M), the Children’s Aid Society filed a motion for summary judgment for a finding that the child was in need of protection pursuant to subsection 47(2), subclause 37(2)(b)(i) of the Child and Family Services Act and for an order of Crown wardship of the child with the purpose of adoption with no access by the parents. The child had been apprehended by CAS nine days after birth and had been in the care of foster parents. The Children’s Aid Society had filed the motion on the basis that due to the developmental disabilities of the biological parents, they had difficulties with basic parental skills and to responding to their child’s cues such as discerning choking hazards, and distressed behaviour of the child. The Children’s Aid Society also stipulated that the mother has a history of depression and the father has a history of police involvement. Adding to the parents’ challenges, the child has vision, hearing, orthopedic and developmental disabilities that require very specific accommodations. The court in this case did not state that parents with developmental disabilities should preclude them from becoming capable parents if adequate supports were to be provided. However, due to the strained work schedule of the maternal grandmother, with whom the couple would reside with the child, the necessary supports were found to be insufficient. The court granted CAS’s motion for summary judgment and ordered Crown wardship of the child with no access.
 
In the third and final case of this review, Children’s Aid Society of Brant v M (K), the mother had a long history of involvement with the Children’s Aid Society. A woman with a learning disability, depression, anxiety, Borderline Personality Disorder and Post-Traumatic Stress Disorder, the mother had four previous children placed in CAS custody. The mother’s fifth child had been born limp and with labored breathing due to the mother’s prescription medication. With the special care that the infant required and the father also having mental health and addiction challenges, the court found it vital for the mother to adhere to medical treatment recommendations which included a combination of psychopharmacological intervention and intensive psychological therapy. Unable to comply with these court instructions, the mother was deemed incapable of providing adequate protection of the infant. The infant was made a ward of the Crown, without access, and placed in the care of custody of CAS.
 
Understandably, the cases above exemplify the great difficulties that parents with disabilities face in child custody disputes. These difficulties are complicated further when the child requires specific accommodation. This article is not stated to suggest a lack of hope or to bring blame to anyone, but as a way to bring attention to the deficits that exists within our social and health resources. The courts have recognized that parents with disabilities do not have diminished capacity to parent a child, so long as there are adequate supports for both parents and child. However, the government-funded support arrangements and specific accommodations for particular disabilities, such as mental health and developmental disabilities, are significantly lacking. There are no easy solutions or answers to address this inadequacy, but what we as social citizens of a community can offer is compassion and understanding; an understanding that what parents with disabilities face everyday is complex, demanding and unique to each family.

References

Child and Family Services Act, RSO 1990, c C 11.
Children’s Aid Society of Brant v M (K), 2010 WDFL 4211.
Children’s Aid Society of Ottawa-Carleton v T, [2000] OJ No 2273, 97 ACWS (3d) 939.
Children’s Aid Society of Peel (Region) v K(M), 2005 ONCJ 246, 2005 WDFL 4136, 2005 WDFL 4142, 2005 WDFL 4143, 141 ACWS (3d) 981.

His Body Betrays Him, Society Admonishes Him: Living with Disabilities for Three Decades
Sarah Harrison, JD Candidate University of Ottawa

It was a cold December day in 1983 when our lives were changed forever. My father was injured at work. His injuries left him permanently disabled and in constant pain. I was very young at the time. My father became a stay at home dad while my mother had to leave her small daughters and join the workforce.

I was raised by both my parents, but my relationship with my father was always different: we had to help each other to get through each day. He had good days and bad days. On the bad days my sister and I would have to do more chores because my father could not. We would also have to tend to him because he was often sick from the intense pain. On his good days – days with bearable pain – he would try to treat us with trips to the park or ice cream.

We both learned from a young age to have compassion and consideration for everyone, but especially for those with disabilities. We had an appreciation for the struggles and barriers those with disabilities had to face.
As we got older we could hear and understand some of the comments made about our father. People did not understand. His disability was not visible. Some people made terrible comments about him and to him. He was not a man. He was lazy. He was a faker.

We knew different. We heard his anguish and saw his tears. He was in constant pain and could do little about it. Medications helped once in awhile. Usually they just made the pain a bit more tolerable. He saw dozens of doctors. Given the nature and location of the injury, the doctors offered little hope.

In the past few years, my father has noticed some improvement in the way others treat him. Now there is more awareness about invisible disabilities. A few times he has gone grocery shopping and some of the staff noticed him with his dark glasses and service dog. They insisted he seek out an employee if he required assistance. They have even done his shopping for him when he brings in a list. They were not forceful in thinking he could not do it by himself. They were not condescending to him. They offered to help on his terms.

He occasionally still faces obstacles. Some people assume he is blind because of the dark glasses. Some people bombard him with questions about having a service dog when he can see. He has been to establishments that have told him to leave because it was not a Seeing Eye dog. They assumed it was just a pet dog, even though the dog was wearing a bright orange “Service Dog” vest. Even when my father presents his “Service Dog ID Card”, some people still cast a judgmental eye in disbelief of my father’s disabilities.

Society has made great strides to create a sense of inclusiveness. However, it is only a few steps on the long journey to equality.

For more information on invisible disabilities, please visit the following sites:
National Public Radio: http://www.npr.org/  “People With 'Invisible Disabilities' Fight For Understanding“
Disabled World: Invisible Disabilities: http://www.disabled-world.com/
What if We Treated Physical Disabilities Like Mental Health Problems? (Cartoon): http://www.robot-hugs.com/helpful-advice/

Eldridge v British Columbia (Attorney General) [SCC; 1997] 
Inderpreet Suri, JD Candidate Queens University