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.”
Justice Penny in Jason Vivian v Nicole Courtney 2012 ONSC 6585
[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 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.
Who formulated (put together) the care map provided?
Did a second or third person assist in its creation? Who were they?
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.
Is one party or has one party ever been unconnected or disconnected with the planning care? Why?
Who all in any wider care-circle consults with the plan?
Is there a digital version of the plan in place?
Who modifies or corrects the plan when required and how often?
How reliable generally are various appointment times on the care map?
How reliable are service provision dates or times on the map (i.e. provincial home care nurses)?
How many new or fully updated care plans have their been at the point of the first interview?
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.
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
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.
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.
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.
Takes a Plan. A Blog About Families, Disability & Planning
Are you a family lawyer with a file where the parties have a child with a disability? Are you a parent separating from your partner and share a child with complex care needs? Are you in a current relationship that could benefit from planning around your child’s disability care? If so, you may find my new Blog ‘Takes A Plan’ helpful and interesting.
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.