Thoughts On Parenting Capacity, Expertise & Care Performance for Medically Complex Children

In this post my comments are centered around one question: Whether the term “parenting capacity” is up to the task of addressing the kinds of care required of parents by medically fragile, technology dependent and/or medically complex children and youth? While it is the case that adults with medical complexity who have “aged out” of pediatric care systems also require this form of care by parents after separation or divorce, that age group is beyond scope for this particular Blog post.

Turning now to the issue of “what it takes” to provide medically complex care, information can be gleaned from several disciplines,and domains including law itself, law journal articles, law blogs and of course court cases.

For example, on a related topic to what this post addresses, Canadian legal academics Isabelle Grant and the late Judy Mosoff have written about the challenges presented to mothers with mental disabilities in retaining custody of their children where it has been decided that child welfare supervision and care- related court orders are/have been insufficient to meet the standard of care or the child’s best interests.

The issues often raised by professionals in the child welfare jurisdiction in such cases are based on what is referred to as “parenting capacity”, or rather, perceived domains of pareting incapacity based on parental disability. Indeed, historically parental disability has been seen as a risk factor. As a parenting deficit. It has presented as a status (disabled mother not capable) that mother’s legal counsel must overcome.

That said, progress has been made in the context of the rights of parents with physical disabilities to retain custody. What we see are shifting norms, and these impact law. For example, parents who use wheel chairs or who have conditions such as cerebral palsy or other disabilities have been challenged by child protection services regarding their ability to safely parent.

Some parents have taken these disputes to the Court of Public Opinion as a means to challenge such claims. Claims which are fundamentally discriminatory in the sense that they “discriminate” or distinguish this one set of mothers as a group.

Importantly, the advance of the rights of persons with disabilities in Canada has played a role in changing social perceptions. Particularly with the recognition that kids can be raised by and with their physically diabled parent. Indeed, Sunnybrooke Hospital in Toronto offers an accessible pregnancy care clinic. The link to that is below. This service heralds a sea-change in how medicine is viewing mothering with a disability.

https://sunnybrook.ca/content/?page=accessible-care-pregnancy-clinic#:~:text=Welcome,or%20are%20contemplating%20a%20pregnancy.

That said, where women with mental disabilities have children the situation remains fraught. This is especially so when the child also has disabilities. There are reported cases where father’s have sought to put forward plans of care in these situations and some have faced similar barriers.

Child welfare professionals and some judges have decided that higher levels of parenting capacity are required of parents in siuations where children have a disability. Since the view has been that adequate parenting capacity (also referred to as “Good Enough” parening) may be difficult for mentally disabled mothers with non-disabled children to meet, the view is taken that such a mother would not be able to perform required disability-related care of a disabled child since it is that form of care more demainding of the parent. In other words, parenting a child with disabilities is recognized as a form of parenting that carries higher demands and that does so across multiple domains. This is a Gordion Knot. It is helpful that child welfare court acknowledge that ordinary parenting differs from extraordinary parenting which is parenting that entails medical or other forms of demanding care.

Conside this paper which suggests that the societal expectations of medically complex care today are too much, for any parent. Kiran Pohar Manhas and Ian Mitchell. (2012) Extremes, uncertainty, and responsibility across boundaries: facets and challenges of the experience of transition to complex, pediatric home care. Journal of Child Health Care.

https://pubmed.ncbi.nlm.nih.gov/22247185/

The above raises points for consideration where a child has medical complexity or is otherwise disabled with high care needs, and where there is a separation or divorce taking place. Decisions about future parenting must be made along with a discussion of what is possible, what is fair, what is affordable and what is reasonable for all concerned. As well as what is realistic and what does not exceed the emotional, financial or physical capapcity of those tasks with care.

Capacity for Complex Care Performance in Parents
A matter that arises is whether and to what extent parenting a child who is medically fragile or parenting children with several disabilities is how can theirr care be adequately and appropriately covered off within a parenting plan with or without parenting tech, such as a parenting App like Family Wizard, to support it.

Question: If we only refer to the word ‘parent’ in separation and divorce cases where there are medically complex children, do we inadvertantly render less visible the role of ‘medical care provider’ within the parent-child dyad?

A poster in a children’s clinic encouraging children with cancer to be strong and never give up. The message is printed repeatedly in blue, turquoise, yellow. and pink. There is a picture drawn of a weight lifter with the message “stay strong’ over head.

Doing that can lead to a range of inequites down the line. Such plans must “account for” all aspects of such care.

Related to this, terms used to describe typical parenting standards, such as the “Good Enough” parent ought not be applied to caregiving parents in the same way, when a separation taking place. In fact, this is one setting where an error or assumption in the area of ‘being good enough” can have a tragic outcome. For examle, if there is a need to recognize subtle clinical signs of a potentially adverse medical event, can this parent do that in the context of this child’s medical conditions.

The fact that a different standard needs to be applied is, ironically perhaps, evidenced by the fact that highly educated, high functioning, financially comfortable, sociallly well adjusted and excellent and loving parents with complex care children have had to endure the attention of child welfare agencies and have been viewed through the child protection lens.

I have met several such parents over the many years. There is a lot going on here, including that such complex care may prove emotionally and physically “too much” as one parent is doing the lion’s share of it. As well, child welfare workers may be oriented to look for certain things, and believe they are seeing them. Especially if they are new to the field.

A medium skinned father wearing a black denim jacket smiles as he carries his young son on his shoulders. The little boy is a toddler, and he is wearing a grey and while and green track suit. It appears as if there is a dark green garage door in the background.

Parents of medically complex kids connect with one another. They understand that they need to learn from others. One lesson some have had to learn about is how best to deal with labels attached to them from professionals who are well meaning but not well versed in medically complex care/parenting. Labels that mothers in particular have experienced include hypervigilance, enmeshment, anxious parenting as well more serious ones like Munchausen’s Syndrome by Proxy. Acknowleding that these labels may apply to some complex care parents at a given point in time, it remains the case that labels applied do not necessarily fit what is taking place when viewed thorugh a child protection lens. I clarify this point below.

Being a highly vigilant parent comes with the territory of medical parenting. It is an essential part of the role of a complex care parent or “medical mom” or “medical dad”. In family law cases where a child is high risk (ventilator-depenent to prone to severe infections, or who has sever dysphagia and who chokes often) vigilance is not aberrant. Professionals need to keep in mind that when another person assisted (enabled) breathing and feeding apparatuses for their child alone in the relationship, this was high-stakes for parents and children. Moretover, the capacity to be vigilant and connected is essential for the child’s survival. Vigilance is an essential part of extraordinary parenting. The flip side of this is that the child knows their caregiving parent is full on reliable. Sepsis will not set in on his or her watch. Nor will choking to death. Or dying from lack of oxygen. Being explicit this way is essential to illustrate what is at stake.

Being enmeshmed: The boundaries in a relationship with ones medically fragile child may look different than in a healthy relatonship with a child without medical complexity. Often the oppositite of enmmeshment is seen to be the fostering of autonomy. Of course complex-care parents do this too, but it may look different given the nature of the medicalized aspects of parenting.

Being an anxious parent: It is expected that most parents will become anxious when their child becomes ill. This is seen to be a ‘normal response’. Pediatricians know this well! However when a child is often or chronically medically ill, has a rare disease or orphan condition, the label of “anxious parent” is differently applicable. Professionals assisting parents with parenting plans in such contexts need to be prepared for that fact that high levels of anxiety may be a central part of what needs to be accommodated in a consultation or mediation.

Being a parent facing allegations of Munchausen Syndrome By Proxy: Parents as noted will have an intimate knowledge of their child’s health. Pediatricians and indeed other physicians often rely of parents to provide what has been taking place with teh child at home. A complex care parent will be able to provide a range of medical information in detail, all of which the average person will not understand. With that they enter into discussions with ICU nurses and ER doctors and othersof what next steps should be for the child. It is here that parent’s can be veiwed as being inappropriate, requesting interventions and so on.

If you seek more information in the broad area of this Blog, the academic literature is replete with papers that underscore different orientations between parents with kids with more severe disabilities. By that I refer to their orientation towards care and what that means. A couple of examples of this are provided below. Both titles might indicate an over-involved, attachment disordered or enmeshed parent were the child not to have a severe medical disability.

‘My heart is always where he is'. Perspectives of mothers of young people with severe intellectual disabilities and challenging behaviour living at home J Hubert - British Journal of Learning Disabilities, 2011 - Wiley Online Library

Mothers' experiences of living worried when parenting children with spina bifida. RB Monsen - Journal of Pediatric Nursing, 1999 - Elsevier

Note that there is early research in the field of nursing which likewise revealved fathers who have lived and who do live worried as well. University of Toronto Emirita Professor Dr. Patricia McKeever completed her M.A. dgree conducting research with fathers with complex care children some 35 years ago.

Orientation as Professionals: Support the parent’s care-world as they have experienced it. This is to provide Status Recognition to care-providing parents whose experiences are viscerally, and technically different and possibly unique. Which moreover may encompass profoundly different tasks and procedures to be performed. And whom live along with their child the possible risks that come with such diverse forms of parent care provisioning.

Some of the key aspects that need to be factored into a plan where there is one or more children with medically complex care needs are addressed briefly in Tips for Co-Parenting a Medically Complex Child provided recently by the US Law Office of Meredith A. Gregory. February 26, 2024.

https://www.attorneygg.com/blog/2024/02/tips-for-co-parenting-a-medically-complex-child/

It Takes A Village

It Takes a Plan

Private Support, Medically Complex Kids & the Ambit of Family Court

[6]  As Dr. James Downer, one of Jamie’s physicians, put it, “The fact that Ms. Courtney is alive and able to live at home is a testament to her spirit, as well as the dedication, advocacy and hard work of her mother.  Parents of children of such chronic debilitating and ultimately fatal illnesses are performing a job that would occupy 4 or 5 employees in a long-term care facility.”

Mr. Justice Penny in Jason Vivian v Nicole Courtney 2012 ONSC 6585 CanLII https://canlii.ca/t/fvf85

Family Mediation has been said to operate in the shadow of family law. However where the area of family law under discussion remains under-developed there is a sense of a legal void. This is (in my view) the case where children with moderately severe to severe disabilities are concerned. However I will say that the small body of law in this area is slowly evolving, within the limitations of the relevant statutes.

As noted in another Takes A Plan Blog Post. we are not privy to all those agreements that were settled. Nor other kinds of privately ordered agreements made between parties. Examples of these include mediatied or arbitrated agreements, or Med-Arb dispute resolution. Or even ‘kitchen=table’ agreements made between parties that are not brought to lawyers for independent legal advice or filing with the court for possible later enforcement purposes. That as such we know very little about (some of these latter agreements come to attention when there are disputes with social benefit providers, the Favrod case in Ontario is one such case).

It would be helpful indeed were there a text book of such agreements. That could usefully guide those in the business of supporting apart-families with kids with high cost, high energy-demanding medical and social care needs. And not only those families separating, but it they could inform all forms of family care . But we don’t have that kind of guide book. To some extent there is a reinventing of the wheel in many of the cases that arise. Given this limitation, it’s helpful to see what’s taking place in the courts in these cases.

Note: If you are parent or other family member reading this Blog, please note that legal cases from family law courts can be accessed free in CanLII. CanLII is a Canadian legal data base. Families with children with disabilities can do some of their own research this way to get a sense of what’s possible when care planning as well as parenting plans are concerned. In my view these do not always map onto one another and this needs to be addressed.

When we look at reported legal decisions, we need to consider the burden of litigation and the related weights attached to court disputes. For many folks with a complex care needs child, daily life carries worries as well as complex and demanding medical tasks that must be carried out I would not wish litigation on anyone providing that kind of care to a much loved and valued child or youth.

Jaglowitz v. Lindsay, 2019 ONCJ 996, is a decision out of the Ontario Court of Justice in Toronto case. It has to do with payment of support to a disabled child. Child support is often of primary concern in cases involving children with additional medical needs.

In the Jaglowitz case the applicant mother, Julie Jaglowitz was 50 the time this case was in court. The respondent father, Phillip Lindsay was 54. The decision informs us that the parties had not been married. They did live together from February 2012 until 31 March 2017, until they separated. However, they both remained in home until October 2017.  The mother is reported to have asked the father to move out many times, but he refused.

The decision provides that there is one child of this relationship, 7 years of age. Kaden is noted to have Downs Syndrome and significant other medical needs. The mother provided evidence to demonstate that Kaden had six further medical conditions. These are noted to have impacted his quality of life and to require ongoing monitoring and treatment. The decision also noted that Kaden received extensive medical treatment to address these issues. The court found that the mother provided most of the care. The decsision, in fleshing out aspects of Kaden’s care, provides that he has extensive needs for services, which needs are expensive and non-discretionary. 

Finally, the decision provides that the father took the position that he lacked the ability to contribute to his son’s extensive and expensive s.7 expenses, and therefore should not be required by the court to do so. Section 7 expenses are those expenses that fall outside so-called Table Amount of Child Support and that can also be ordered by and enforced by the court. Before we judge the father, one needs to consider the wider context of the decision. This is not to say the the mother absolutely needed that money - in relation to health care support. 

One must ask the larger family policy question, Is Child Support Really Meant For That?

For the full decision with the outcome of this case: https://canlii.ca/t/jcllr

A Few Comments Regarding Lower Income Folks with High Medical Needs Children Who Seek Support in the Family Court

• Health care costs that parent’s incur for their children in the context of childhood disability and separation that are not covered or funded as a benefit by provinces and territories are being dealt with as s.7 expenses.

• Fact patterns such as that in the Jaglowitz case, addressed in an Ontario court, present with issues that are not fully “juticiable’ in that legal forum. In other words the courts hand’s may be viewed as ‘tied’ in regards to what it is able to achieve.

• The “value added” by the parent(s) undertaking heavy care performance is value that flies under the radar. And one can refer to Mr. Justice Penny’s comment set out at the top of this Blog. What I mean by that is there is no official calculation (as there is with child support seen in the Federal Child Support Guidelines) of the the monetary value of time spent caring, daily, weekly, monthly and over the course of years.

• Nor does it account for hidden costs of such care. That is because the role of the status of “caregiver” parent does not fall within the purview or ambit of family court. I say this while fully aware that so-called ‘special needs’ of the child being met does fall under the best interests legal principle in (for example) Ontario family courts. Essentially there is a gap here between family law and health law.

• Moreover, even if one parent is coping with solo caregiving as well as parenting and that role has deep meaning for them, there are nonetheless longterm implications of that parent’s withdrawal from the workforce. This not always fully covered by guiding cases to do with support, for example. There are several reasons for this, that go beyond the scope of these brief comments.

• Notably, the case addressed in this Blog is a Toronto case. The cost of living for 1 person renting (as presumably the father would have to do so in this case) requires an income greater than he had, even before he was paying the table amount child support. In this manner one can see how it is he submitted he could not afford to pay additional support.

• The mother was in a vulnerable financial position in light of care obligations for a much loved child of the parties. That vulnerability was unlikley to go away. In the case Mr. Justice Penny’s reference that appears at the top of this Blog, the daughter in that case passed away. Grief and poverty would have been the immediate aftermath for dedicated caregiving-parent, Nicole Courtney.

• Note that another case came along that addressed some of the issues in the above case. That case is called Coates v Watson. Here is the citation and link should this case seem useful to you.

• Coates v. Watson, 2017 ONCJ 454 (CanLII), <https://canlii.ca/t/h4pvq>
  

Those inolved in dispute resolution, on the periphery as collaterals or more centrally as family lawyers, family mediators and arbitrators, parent coordinators, consultants, and others need to be aware that where children have medical complexity or who are otherwise medically fragile or severely disabled separation or divorce is experienced differerently than where this is not the case. This makes sense since marriage or partnership was also different than in families that did not have a family member with extraordinary needs. For professionals involved a valuable step to take in understanding the undercurrents that may exis, it is wise to look to the nursing literature as well as to some of the critical disability studies literature. I have provided an example of that literature under the Resource heading. A piece of my work is referenced in this paper, (Jennings) and you can access that work in Google Scholar, free of charge and without need of membership or a password.

Side Note: I was interested to see the below Blog hosted by a US law firm. It is in relation the issue of medical parenting and conflict in separation. I share that here.

Co-Parenting Children With Complex Medical Needs. Schwartz White Attorney’s At Law. February 22, 2022.

https://www.schwartz-white.com/co-parenting-children-with-complex-medical-needs/

Resource:

Matthews, E.J., Puplampu V., Gelech, J.M. Tactics and Srategies of Family Adaptation Among Parents Caring for Children and Youth with Developmental Disabilities. Published online January 29, 2021.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8246494/

It Takes A Village

It Takes A Plan

Disclaimer: Nothing stated in the ‘Takes A Plan’ Blog (c) comprises legal advice. Consult a practicing lawyer in your province or terrtory if you are looking for legal advice on your matter.

Care Maps & Parenting Plans: Medically Complex Kids

This post is the first in a series of posts in which I will be addressing parental planning for children with medical complexity in the context of separation/divorce. This discussion involves the role of care maps, which I will say more about below.

At first glance some may understand the existence of a well-crafted care map would provide sufficient information about care needs to inform a solid and safe parenting plan. However, parenting plans where medically complex children are concerned inevitably involve a great deal more than just a one dimensional image of the care-world of the child.

Additional information includes the role of PSW’s in the child’s care, home nursing agencies and tasks performed, and others involved in the child’s care. At least to the extent that they can be and this is itself another crucial issue that must be addressed in a solid and safe parenting plan.

Input into crafting a parenting plan in the context of child with complex care needs benefits from the assistance of someone who fully grasps the ‘gestalt’ of complex care, family life, work and emergencies inside and out, and not only of the crafting of a parenting plan. In this post I begin with a brief discussion about care maps for children with complex care needs. Subsequent posts will address features that must be attended to in crafting appropriate plans for parents whose care extends beyond parenting into the realm of medical care provisioning, or what has been called extraordinary care by care some experts.

The Care Map

Definition of a Care Map

A care map is a kind of ‘chart’ created (most often) by the primarily caregiving-parent. The intention behind the care map is to provide anyone looking at the map to get a bird’s eye view of the caregiving landscape of the child for whom it was charted. \That is, the child with complex care needs. It does not genetrally list all of the steps a parent must take to carry out all of the attendant functions related to the care map.

How is it Put Together?

In the middle of the map there is a square or a circle with the child’s name printed in it. The space around the child’s name usually contains the names of other care-involved family members. This may include the names of child carers and teen care providers (a Blog on young carers in this context is on its way!).

A young child wearing a colourful sweat-shirt and holding a large number of crayons with both hands largely match the top the child is wearing.

Then, lines branch out from the centre with the names of the child and thier carers. These branches lead to a variety of care related domains (these have been referred to ‘cartograpohic connectors’). Smaller branches then lead from these out toewards sub-domains.

Each domain may be signified with its own colour, as seen often on maps of the world. For example, Pediatric Immunology may be green, Pediatric gastroenterology may be pink, pediatric opthamology may be grey and so on. There may be a domain for homecare nurse organizations and schedules, and so on, depending on the child’s care team, services and other supports. The scale (size) of various domains may refelct frequency of follow up appointments or importance at a given time.

• See: R.C. Antonelli et al. Care Mapping: A How to Guide for Patients and Families. By R.C. Antonelli et al. Boston Children’s Hospital. Note that in the below link there are further references to other articles on care mapping.

https://www.childrenshospital.org/sites/default/files/2022-04/integrated-care-mapping-families.pdf

For Dispute Resolotion Professionals: Some Essential Inquiries About The Client’s Care Map

For professionals who have been provided with a scanned care map, there are questions to ask about the map long before moving on to crafting the parenting plan. Some of these questions are listed below, but you will undoubtedly be able to come up with others related to the client’s and child’s/children’s circumstances.

1. Who formulated (put together) the care map provided?

2. Did a second or third person assist in its creation? Who were they?

3. Has this same person been the primary ‘map maker’ in the before-separation family? If so, why was that? Reasons needed should be noted and questioned.

4. Is one party or has one party ever been unconnected or disconnected with the planning care? Why?

5. Who all in any wider care-circle consults with the plan?

6. Is there a digital version of the plan in place?

7. Who modifies or corrects the plan when required and how often?

8. How reliable generally are various appointment times on the care map?

9. How reliable are service provision dates or times on the map (i.e. provincial home care nurses)?

10. How many new or fully updated care plans have their been at the point of the first interview?

11. Depending on the child’s health condition (s), use a scale to rate the severity of the child or children’s condition. Later you need collateral information concerning severity.

12. Inquire into the stability of the child’s health and how that is accounted for in the present care plan and parenting resposnibilities. Emergency preparedness is ‘normal’ life in the context of these families.

If a file has been sent by the parties lawyers to a family mediator, or to a consultant, all professionals will need to be fully aware of what parenting in this context actually consists of. They need to know for example if it crosses the threshold referred to in the relevant literature as “extraordinary” care. Some parent’s know how to set up a PIC line, insert IV shunts and GI Tubes, and so on. After separation both parents will need to have this facility, unless the child is staying on one residence only.

These are clearly tasks that surpass those performed by the typical parent. Need of their performance has wider implications with respect to a highly vulnerable child’s bests interests that need to be accounted for in a parenting plan. For example, a child minder (babysitter) would need full and agreed upon training before the child could be left alone with them for any time at all.

Additional Resources:

A picture paints a thousand words. Wisonsin Hospital Website. 2017

https://childrenswi.org/NewsHub/stories/a-picture-paints-a-thousand-words-care-maps-help-families-identify-what-matters-most

Adams S, Cohen E, Mahant S, Friedman JN, Macculloch R, Nicholas DB.BMC Pediatr. 2013 Jan 19;13:10. doi: 10.1186/1471-2431-13-10.

Exploring the usefulness of comprehensive care plans for children with medical complexity (CMC): a qualitative study.

Watt L, Dix D, Gulati S, Sung L, Klaassen RJ, Shaw NT, Klassen AF.Child Care Health Dev. 2013 Mar;39(2):185-93. doi: 10.1111/j.1365-2214.2011.01342.x. Epub 2011 Nov 9.

Family-centred care: a qualitative study of Chinese and South Asian immigrant parents' experiences of care in paediatric oncology.

Care Mapping for Children with Complex Care Conditions or Disabilities. Complex Child Magazine. 2020.

https://complexchild.org/articles/2019-articles/august/care-mapping/

It Takes A Village

It Takes A Plan

Disclaimer: Nothing stated in the ‘Takes A Plan’ Blog (c) comprises legal advice. Consult a practicing lawyer in your province or terrtory if you are looking for legal advice on your matter.

A Father & His Autistic Daughter | What’s In A Name?

Mediated agreements concerning parenting plans for children with autism, severe ADHD and/or other neurodiverse identites/conditions are not made public. As such they cannot be consulted by those parents or professionals curious to know what was included in such plans. Likewise, privately ordered settlement agreements are not generally available for reference by those not a party to that processs. Many legal decisions arising in the family court are often reported however. Here I address a reported decision dealing with a father’s successful claims for his parental status in their autistic child’s life be legally acknowledged. This case also shows his intention to have time with his child and to be n involved, dedicated parent part of her life.

No two cases in the family court are identical, even where the same order is being sought by a parent with a child with autism. That said, there are some concerns routinely expressed by parents that fall under the Best Interests of the Child. The 2017 decision in Roy-Bevington v Rigden in the Ontario Court of Justice involved a 3 year old girl with autism, described in the decision as being ‘severity level 2”. This part of the case is a decision focussing on the child’s best interests in relation to the child’s surname.

With reference to the other issues the father asked the court to decide on, these are listed below.

1. Joint decision making

2. That the mother have the birth certificate registered to include the biological father’s information.

3. To change the child’s name to Kieran Sloan Rigden-Roy.

4. To expand the father’s access terms

5. To address financial terms related to child support.

This particular decision has as its primary focus the parties dispute about the fact that the mother had not acknowledged the father on the child’s statement of live birth. As a side issue, I have provided a link to the Trociuk v. British Columbia case below, which addressed the issue in light of the Canadian Charter of Rights and Freedoms for folks who are interested.

The mother’s wish was that the child’s surname be that of the child’s step-father which was Rigden.

At the time of this 2017 decision the child was three years old. The Judge notes that the biological father had raised the issue of his own surname, Roy, being included , as well as that of the child’ step-father, and had been doing so from the time the child was a month old.

As the decision sets out, the mother chose not to include her own surname and the child had only the step-father’s surname, which again is Rigden at the time of the decision. The court, providing a detailed analysis of the law, decided this was “not correct”.

Although the biological father requested the court order that the child’s surname be registered as Rigden-Roy, the court in its final analysis decided it ought to be Rigden Roy (no hyphen) prioritizing the child’s biological father in the child’s surname.

It was found to be in the child’s best interests to have her father’s name as an important matter relating to the child’s identity. The order was made that “Pursuant to s. 28(1)(b), the child’s name shall not be changed to anything other than “Kieran Sloan Rigden Roy”. The decision is linked below where readers can examine more closely the statute in question.

A long stemmed red rose with small green leaves

Comment: William Shakespeare’s famous line “What is in a name? That which we call a rose by any other name would smell as sweet” came to mind when I first ran across this case. I also remembered that there have been academic papers written about the convention of “maiden” names and “married” names for women, as well as on the long time convention of a child’s surname being that of the father. Interestingly, many social scientists have examined the implications of these practices. Of course the latter practice has been shifting with more and more children being given double-barelled surnames comprised of both parent’s surnames, or combinations there of. The Roy-Bevington v Rigden case is interesting in that the father was highly committed to the legal process he began and he purssued this claim over the course of years. It is also interesting that in this decision the court relates the surname name of a child to a child’s identity and that this issue is named as falling under a Best Interests of the Child analysis. It is further of interest for reasons that go beyond what has been addressed above. It draws in a discussion of the Change of Name Act R.S.O. 1990, c. C. 7

Based on the facts of this case, the father wants to take on a larger role in his daughter’s life. It is important that where such cases arise that note be taken that there are many cases of father’s with ‘special needs’ children not seeking any parenting time. This can present challenges, not only for the child, but for the other caregiving-parent too.

The issue of a child’s surname needs to be considered in cases where the child is an infant in situations like the above case. Family dispsute resolution professionals might also bear in mind that older children may themselves seek to hyphenate, or otherwise modify their surnames by changing their order or adding a name. Mediators can and have assisted with this process, provided the parent’s consent where children are minors and as such are unable to take such steps on their own.

Cases:

Trociuk v. British Columbia (Attorney General), 2003 SCC 34. 

Roy-Bevington v Rigden, 2017 ONCJ 730 CanLii at : https://canlii.ca/t/hmx87

It Takes A Village

It Takes A Plan

Disclaimer: Nothing stated in the ‘Takes A Plan’ Blog (c) comprises legal advice. Consult a practicing lawyer in your province or terrtory if you are looking for legal advice on your matter.

Takes a Plan. A Blog About Families, Disability & Planning

Children, Disability & Support | Introductory Blog

A picture is worth a thousand words, or so the saying goes. However, as we know from our experiences with social media, a beautiful image often leaves out critical information about the person or people in it.

Consider the image above. The photographer’s subject is a young child reaching up to a tree with pale pink blossoms. We may notice that this child is wearing glasses. Although they may be sunglasses they do not appear to be. Important other informtion may be in the child’s background. For example, what is this child’s vision is like? Is she followed by an opthamologist and if so, who takes her to her appointments? Has she ever required eye surgery? Who stays home to care for her if she has done? Does she have a medical condition that involves her vision? If so, what is daily life with this condition like for her? What does she enjoy and how is that being supported? Do her parents ‘live worried’? What are the implications of that (if any) for need of respite? And so on.

Perhaps you are a family lawyer with a file where the parties have a child with medical complexity or disability.

Maybe you are a family mediator facing challenges with portions of a parenting plan.

Or perhaps you are a parent separating from your partner with whom you share parenting a disabled child.

Or maybe you are in a current relationship that could benefit with further planning around issues such as time spent related your child’s care and support.

If you have concerns about the challenges of co-parenting a child or children with a disability or disabilities my Takes a Plan Blog posts may be of interest.  In it I discuss reported legal cases concerning plans of care and provisioning of support. I canvass older as well as recent cases. In doing so, I draw on family law, child welfare law and sometimes, other kinds of decisions involving kids, disability and families.

My 2019 PhD dissertation was centererd on family law cases, child welfare cases and other litigation concerning families, disability and children. It’s long been an interest of mine to follow what’s happening where families, disability and planning are concerned. I started publishing in this area in 2004.

It Takes A Plan but What Kind?

A purposeful plan that accommodates the unique needs of a child is supportive of parents as well as children and extended family. Optimally such a plan would have the benefit of input from professionals who are aware of what the academic work is telling us, as well as being up to date as to what i staking place in legal decisions.

A consultation regarding the crafting of a plan can assist in shaping a proposed plan or help you to modify the plan you already have in place.

We know well that no two children are the same. A child with a disability or disabilities shares both commonalities and differences with other children including those with disabilities. As such, a ‘one-size fits all’ approach to planning parenting schedules and tasks is unlikely to meet the needs of every child with disabilities. Nor of their parents. This is true even when children share the same label/diagnosis.

A consultation or mediation can support family members and their lawyers in addressing the nuances within the everyday realities of support to children with disabilities. Some examples are the need of realistic appraisals of available and reliable support and services in the community where the child/parents reside and where disability services are accessed. This is not as simple as looking at what government websites states is on offer. As well, a realistic evaluation of a child’s health status based on the child’s medical and care history in relation to external expectations of care and parenting is also vitally important.

My Takes a Plan Bog posts provide reviews, examination and commentary on the support of children with disabilities in diverse family contexts. One source of information are Canadian legal cases. Another are the academic articles published in this area, as well as other kinds of publications.

By way of introduction please find the below CAPH presentatipon in which some colleagues and I addressed some of the issue that I take up in Takes A Plan. They can be found at www.caphc.org

Disclaimer: Nothing found or stated in the ‘Takes A Plan’ Blog (c) comprises legal advice. Consult a practicing lawyer in your province or terrtory if you are looking for legal advice on your matter.

The Caregiver Parent and An Interesting Legal Case

A mother and child wearing casual clothes are looking at the sea. The child is wearing black and while sneakers. They are standing side-by-side on a conctete barrier and looking over two green iron safety bars. There are blurred waves and buildings in the background. It appears to be foggy.

Have you ever considered what distinguishes care from parenting? Or considered how parenting is so often conflated with care? The blurring of the two is common, yet, the rold and impact of parenting is not the same as the role impact of caregiving.

And what about financing support of care (as opposed to other kinds of support), specifically when involved parents live apart?

I have shared three questions below. I hope they spark your interest in thinking about care, parenting and the support of children with disabilities.

Question 1:

I’m separated/divorcing and we have a child with a disability. Is my child entitled to ‘special needs’ support?

There are different expressions of how children with disabilities must be supported in society. For example, children with disabilities have rights to support under international law. These are set out in the United Nations Convention Rights of Persons with Disabilities (CRPD). Canada acknowledges these rights exist at the international level.

CRPD <https://social.desa.un.org/issues/disability/crpd/convention-on-the-rights-of-persons-with-disabilities-articles >

However, legal obligations of parents to economically support their children in a manner that can be botjh framed as a claim and be enforced are set out in family and child welfare provisions across provinces and territories. This kind of support is based on financial information of the parents.

Question 2:

Do courts recognize the dual role of caregiver-parent as being different from the role of being a parent to child without a disability? In other words, is “caregiver status” recognized in family courts busy adjudicating disputes between parents?

This question has been brought to family and child welfare courts across Canada and has been subjected to lengthy litigation. Family court judges have given opinions on this matter. In Ontario some judges have been very clear about the high demands of care, for example in the context of children with medical complexity. Lawyers have made submissions regarding the economic implications for a separated parent who is solely responsible for the care and support of a child with a disability. Bar Associations, Law Magazines and Journal articles have waded into this crucial area.

Question 3:

A brown brick lowrise apartment building with large balconies and with a tree in front and with the sun shining in the background.

Are there any family law cases that address the unique issue of economic (child) support to be paid in the context of a child with a disability?

Yes, there have been cases over the years in the domains of estate law, child welfare law and family law, across Canadian provinces and territories.

For example, CBC News reported on a case recently (“Judge grants B.C. woman order for over $100K in child support” March 2024). The link to the B.C. legal decision examined in this CBC report, namely E.S. v. G.W., 2024 BCPC 36, appears at the bottom of this Blog.

However, by way of review I will provide some of the details of this interesting Canadian case. The situation involved a self-supporting single woman who had been successfully employed as an executive assistant at several companies over a period of time. During this period of her life she took a vacation overseas. While on vacation she met a man. Later, once back in Canada, she learned that she was pregnant from that encounter. She subsequently conducted some online research to find this man and reached out to him online. He replied that she was not to contact him again and he refused to communicate any further. The reason he gave was that he did not want his wife to learn of the brief sexual relationship they had shared overseas.

In 2018 the woman brought a child support application seeking support from the child’s biological father.

The judge in the decision in their decision provided the information that the child of this brief relationship had received a diagnosis of autism. The court further set out that the mother had been unable to work outside the home from 2017 onwards. The court case reports the woman as attributing her inability self-support “to the challenges of raising a neurodivergent child on her own”.

At the time of the court hearing, the (now) mother was unemployed and living in a suite in her parent’s house. She was unable to pay them any rent. She further needed to borrow a friend’s car to get to and from appointments and do errands. She held minimal monetary assets.

In this case, the judge made a (provisional) order for child support. The order was based on the father’s imputed income of $227,000 annually. This was in the amount of $1,957 per month. At the time of writing this Blog post, the order was waiting on confirmation in the other jurisdiction.

The citation for this case is: E.S. v. G.W., 2024 BCPC 36 (CanLII), <https://canlii.ca/t/k4h1k>

Comment: The salient point arising from this case for the purposes of this Blog is not who ‘won’ and who ‘lost’. It is that autism in childhood can have economic ramifications for a sole parent to self-support. Prior to having a child with autism the claimant mother had a healthy income. Had this mother and child not been able to reside without cost with the parents of the mother, it is uncertain what living arrangement they would have been able to find. All the more concerning in 2024 is the presence of housing inaffordability, high rents, shortages of disability-appropriate subsidized housing and lack of co-op vacancies across Canada. This matter of housing in a disability context was canvassed in the Tanudjaja case in Ontario. The stories of people in these situations were fleshed out in Affidavits filed in that case.

See: Tanudjaja v. Attorney General (Canada) (Application), 2013 ONSC 5410 (CanLII), <https://canlii.ca/t/g0jbc>

It is possible that a mother in the situation of E.S. v G.W, might have had to place her child in state care, had her own parents not been able to house her and their child. If you are interested in learning more, The Ontario Ombuds Office investigated the issue of needed supports to disabled children through the 2000’s. A link is provided to their initial Report here. It is called Between a Rock and a Hard Place.

https://www.ombudsman.on.ca/resources/reports,-cases-and-submissions/reports-on-investigations/2005/between-a-rock-and-a-hard-place

This is not an outlier issue. On June 4, 2024 CTV News ran a piece called Harder than anything. Ontario family’s mortgage payments to increase by $2000. In it the woman relays that she has 8 children, and 4 of them have “health challenges”. Her husband increased his work hours from 50 to 70 hours a week. It is inability of meeting the children’s health needs that is worrying her. The concern is being able to meet her child’s best interests and having those met in her view is underthreat as a result of the Canadian housing crisis.

An important social and familial point to make here, with reference to the E.S. v G.W. case, is that autistic people, including children, are cherished family members with rights to support as well as to the facilitated ability to live their best life.

If you are interested, in another Takes a Plan post I discuss legal cases where fathers have brought cases to court seeking to establish care/parenting time and who wish to assume a permanent role in their autustic child’s life. Or who seek to have more time than they have with their autistic children.

It takes a Village.

Its Takes a Plan.

Disclaimer: Nothing in ‘Takes A Plan’ Blog (c) comprises legal advice. Consult a practicing lawyer in your province or terrtory for advice on your matter.