Special Needs Agreements
Class Action Lawsuit for Mothers with Severely Disabled Children?
Mothers understand all about risk.
In the photo above my sister Maggie and I along with our parents were visiting a couple in Toronto – the purpose was to purchase this furry fella – as our family pet. If you guessed that it was our mother who put her foot down, you guessed right. She did.
Child preservation is at the heart of mothering. We understand all forms of risk and do so in particular mothering contexts. Anne Larcade understood all about the risks her son faced.
Toronto 2006.In a unanimous decision released today, the Ontario Court of Appeal allowed Ontario’s appeal in Larcade v. Ontario (Minister of Community and Social Services). The court overturned the also unanimous lower Court decision that would have allowed the lawsuit to proceed as a Class Action.
Thousands of Ontario’s most severely disabled children are affected by this decision. Including of course the named plaintiff, caregiving mother, Anne Larcade and her son Alexandre.
They alleged that Ontario was negligent in failing to meet its obligation to provide services for severely disabled children that ought to have been provided through Special Needs Agreements. The suit claimed that the Harris government stopped providing the agreements contrary to Ontario’s (then) child welfare statute. The claim was that s a result of the Ontario’s negligence, families were forced relinquish custody of their children to the government in order to obtain critical services and supports. This was not a claim about ordinary care. It was a claim about extraordinary care.
In May 2005 the Divisional Court certified the action as a class proceeding.
Anne Larcade the named plaintiff in the litigation stated to media that she was distraught by the decision. “This decision is not only bad for myself and Alexandre, but for the thousands of other families with vulnerable, severely disabled children living in Ontario.”
“I do not understand how, in the face of the Report of the Ombudsman of Ontario (May 2005) that concluded a terrible injustice was done to these children, that the Court could find that we had no right to even sue the Government.” She continued with the comment that “According to this decision, the Government of Ontario can force good parents to surrender custody of their children to the Province and you can’t do anything about it.”
The Ontario Ombudsman’s legal team in fact had conducted a thorough investigation into what was happening – parents being asked to legally abandon their children under a child protection provision for abused and neglected children who came to the attention of authorities. This was a provision that deeply disturbed non-abandoning mothers who needed nursing and other support for medically fragile complex care children.
Larcade appealed the ONCA decision to the Supreme Court of Canada. However, the SCC did not agree to hear an appeal.
The issue of need of complex forms of care did not go away, of course. In a little known case, Children’s Aid Society of Haltonv J.A.1 & J.A.2, 2011 ONCJ 624 the same issue – namely the coercion of caregiving mothers under provincial policy to agree to abandonment as a legal reason to access complex care – was brought to the attention of a judge. This time it was in a proceeding that involved criminal. family and child welfare law.
The facts of J.A.1 are that both of the parties’ children had been in the primary care of their mother from the date of separation. During 2009, the father had been exercising access to both of his children at a supervised access centre, on a family law court order issued on consent. In 2010, the child was “apprehended” by the regional children’s aid society because the mother could not care for their disabled child, M.A., at which point the parents consented to undergo a custody and access evaluation.
The circumstances of the mother at the time of the staged (by the mother) apprehension are set out in the case as being in the setting of the deterioration of the child’s behaviour, believed to have occurred with the end of his behavioural therapy and the start of a new program. The decision states the mother had funding for two respite workers “to assist” with treatment and with care of her child (whom she wanted and loved). At the time of the apprehension, the mother was working with one respite worker and with her own mother in caring for the child.
In spite of having three other adults to assist with care, the evidence of the pediatrician was that in the setting of behaviour becoming increasingly difficult to manage, the mother was exhausted, frequently breaking down in his office. The physician’s evidence was that the care needs would not be solved with week or weekend respite, and that the family had exhausted all of its resources. He recommended placement, given the lack of adequate state supports.
The child (M.A) was “apprehended” after his mother brought him to a hospital emergency room and informed a physician there that she could no longer care for him, leaving him there so that child welfare authorities would be alerted. He was placed in a residential treatment program and a child protection application was brought against the parents.
The affidavit the mother provided in response stated that the principal of the school, the IBI therapist, and the primary respite worker all supported the plan of care she put forward, which advocated for a residential placement. The mother’s materials explained that the school board had consulted its autism expert and had repeatedly called the mother to collect the child from the school because of difficulties. The materials also set out that the grandmother, the mother herself and two respite workers had been caring for the child.
In the initial motion to apprehend, the Society agreed with the mother’s position that the child be placed in a residential program for seven months as a ward of the Society. As the decision notes, on return of that motion, the Society had changed its position, seeking instead to place the child in temporary custodial care with the father, with the supervision both of the father’s parents and subject to society supervision. The mother did not agree to this newly proposed plan of care.
In the end, the court held that as the child’s “primary caregiver was unable to care for him, even with the assistance of two primary respite workers, and at the time of the apprehension, the assistance of one full-time respite worker and her mother” and given that “professionals involved in M.A.’s care have recommended that he be placed in a permanent residential treatment home that will meet the special needs of a child with severe autism that is where he should be placed.
A finding was made under s 37(2)(b)(i), which is Part III of the Ontario CFSA dealing with child protection. Subsection (i) is for a finding of abandonment. The mother brought attention to what she submitted was the mischaracterization of the reasons for the placement of her son into a residential facility.
The Judge states that in its protection application dated November 29, 2010, the Society seeks a finding that M.A. has been “abandoned” by his mother… It is not in dispute that M.A. was in the Respondent mother’s care and charge at the time of the Society’s apprehension of the child. The Respondent mother does not agree that she has abandoned M.A., but rather that she was no longer able to care for him.
This mother had recently left a violent relationship, she had acquired serious health problems, and she had a job that she needed to support herself as a sole-support mother with another child to care for.
Yet, the legal finding of abandonment of a child, whom she was in the active process of supporting in a great many domains, troubled her enough to raise it in her Reply to the Child Protection Application served on her.
In regards to the Larcade decision see Ontario Court of Appeal Overturns Certification of Class Action Law Suit For Severely Disabled Children Nov 24 2006 http://huffstrategy.com/MediaManager/release/REKO—Special-Kids-Ontario—Larcade/24-11-06/Ontario-Court-of-Appeal-Overturns-Certification-of-Class-Action-L/385.html
“Where’s Ontario’s Humanity?” Mom Asks. Tanya Talaga forThe Toronto Star July 23 2009 https://www.thestar.com/news/ontario/2009/07/23/wheres_ontarios_humanity_mom_asks.html