Support In The Margin

Missing In Action – Community Living. Older Mothers Are Responsibilized for Life Long Care

This post is about the support of disability care and caregiving older mothers.

Which margin am I referring to in the title of this Blog post? It is the margin that some excellent scholarship suggests as being the social location where mothers of children with disabilities reside in the larger text of motherhood as an institution.

For example, authors Carpenter and Austin use the metaphors of text and margin to interpret the experiences of mothers with children with neurological disabilities.  They explain that the text of motherhood is occupied by the good mothers and that beyond the text, is the margin. It is in the margin that the children with neurological disabilities (in this case ADHD) and their mothers are situated by society.

These authors explain that “mothers measure poorly if their children are outside the text.” They add that the boundaries of the text are carefully policed by involved others who judge the value of mothers as being lower when they and their children are situated outside the text.

However, these authors also state that caregiving mothers do not passively sit in the margins.  Indeed, their mothering is seen to mess up the boundary between the text and the margin, in particular when they trouble the margins themselves.

Carpenter and Austin claim that troubling the borders of the motherhood myth is ‘work.’  I agree. Many of those who have raised a child in this context also know this. Carpenter and Austin and  also claim that this work is effortful, consequential and disabling, something that requires careful strategy.

They conducted a study and it found that mothers outside the text felt the impacts of being silenced, criticized and hurt, but also found that mothers found ways to manage that.  They also found that in struggling to find a place within the text of motherhood, some mothers had complex experiences from which they were able to critique the text. In other words, they problematized the content of the text.

However the study further found that the mothers who troubled the margins in order to be included in the text actually re-inscribed the myths of motherhood as an institution that placed them outside-of-the-text.

I’ve long pondering how we ought to value maternal caregiving where there is little money to go around. I’m not referring here to the mothering, I’m referring to care work mothers perform. In considering this question I have revisited an important family care case from across the globe, but in a British-based common law jurisdiction, not unlike Canada. Although from afar, there are lessons in this litigation that we can all benefit from.  

And Mrs. Spencer is to be applauded for her efforts to change the law in her justice-seeking project when she refused to be marginalized in support policy that denied her recompense, allowing that she live in poverty.

This relatively recent case from New Zealand shines a light on a few issues that arise in the context of the question above, as to how do we value mothers who provide forms of care outside the text of ‘ordinary’ mothering? Spencer v Ministry of Health, [2016] NZHC 1650 [Spencer] helps us to think about the issue. https://featbc.org/wp-content/uploads/2016/10/2016-Spencer-v.-Ministry-of-Health.pdf

The issue in Spencer’s claim was brought by way of ‘a reference’ by the New Zealand Human Rights Tribunal, to the New Zealand High Court. This means it was a legal case having to do with government asking the courts perspective on a major legal point of interest.

The facts of the Spencer litigation are that Mrs. Spencer and her husband Mr. Spencer were separated in 1990. At that time Mrs. Spencer stopped working in their joint family business, and continued on as their son Paul’s full-time caregiver. Paul had never lived independently and his mother had always been involved with his care at home, as do many single caregiving mothers. This is the context in which Mrs. Spencer slid into poverty. In order to survive she received social assistance during subsequent decades after the divorce. She is reported in to have recently accessed her pension which although less stigmatized than is welfare, but certainly is not a robust level of support after a full life of care work and work in a business.

Mrs. Spencer’s legal claim pertained to the care she had provided to her son Paul from January 2001 to May 2013, during which the Ministry declined to pay for her services to her son, under its home care policies.  The government declined they stated because of her status as Paul’s mother, which disqualified her from receiving payment.

In relation to this refusal, she brought a claim of discrimination in the Human Rights Tribunal, and won.  The Ministry of Health questioned whether the Tribunal that heard her case for support ever had jurisdiction to actually hear her claim.

We had a similar sort of legal case here in Canada some years ago. In that case a father sought payment for caring for his adult daughter who had severe cerebral palsy and who chose her Dad to be her caregiver. The Canadian case dealt with the fact that “The Continuing Care Program does not provide financial remedies to family members to care for relatives either through direct payment to the individual, payment through a homemaker agency, or payment as an approved service provider (e.g. family care home or licensed facility).” See: HMTQ v. Hutchinson et al,2005 BCSC 1421 which you can access at: https://www.canlii.org/en/bc/bcsc/doc/2005/2005bcsc1421/2005bcsc1421.html?resultIndex=6

Returning to the 2016 New Zealand case, The High Court decision noted that since 2014, Mrs. Spencer was paid a sum of money by the Ministry of Health under its family care policy. She was paid minimum wage for 29.5 hours of personal care and household management a week, pursuant to the New Zealand Public Health and Disability Amendment Act, 2013/22.  

Spencer was awarded $207,000 in back pay. This award of money acknowledged this caregiving mother’s efforts and her right to support. It acknowledged that care has a monetary value. And it drew attention to the notion that falling into poverty as a full time caregiving mother is not ok.

However, the 2014 legislation, which barred further such lawsuits, was passed “under urgency” and without public consultation. In the new legislation, a clause prevents any future claims of discrimination. This is something to take note of. It is an example of the state cementing care giving mothers care work in the margin.

See “Editorial: Disability Bill Demonstrates Abuse of Due Process”, New Zealand Herald online: <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10884930&gt;.

Thank you to disability advocate Marcy White MSW, MBA for kindly reviewing this Blog post for me in advance of its being published. Her intelligent and trained eye was most helpful.

References

Lorelei Carpenter & Helena Austin. “Silenced, Silence, Silent: Motherhood in the Margins” (2007) 13:5 Qualitative Inquiry 660.

Photo Credit, Michael Craig https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11678171

Conflations in Care Law

Conflations in Care Law

The McCrea case involved mothers on maternity leave who became sick, some life-threateningly so, and who applied for Federal disability benefits, which were denied.

The reason provided was that they were receiving maternity leave benefits. This disentitled them to sick leave benefits.

Maternity benefits conflated somehow with disability benefits?

As a result of this administrative decision, several mothers joined to certify a class action proceeding against the Canada Employment Insurance Commission. A tall order as litigation goes. It is not a simple matter to sue the Federal Government.

Although based on several claims, only one of their claims was certified. That was for negligent implementation of the Act in question. One aspect of the negligence they claimed took place was the pattern of denials of sickness claims by very ill mothers on maternity leave. Notably, this pattern of denials continued even after their claim was brought.

Early on, the government settled with some employees in the this litigation, and removed a clause in the benefit scheme that was problematic.

In this dispute the mother’s wanted law that supported them, while also mothering.


More specifically, the mother’s action was for denial of sick benefits was for provisions under the Employment Insurance Act, SC 1996 c 23, regarding in particular parental benefits under EI when parents became ill. The claim alleged that the Canadian Employment Insurance Commission and Service Canada had failed to properly implement the amendments, which resulted in individuals who were on parental leave being denied their claims for sickness benefits.

The class initially claimed the torts of misfeasance of public office, negligent misstatement and unjust enrichment.

The Federal Court certified the class proceeding for negligent implementation of the Act. The government appealed and that litigation went on for several years. See the more recent decision at the Federal Court of Appeal. a

See McCrea v Canada (AG), 2015 FC 592, (Motion for Class Certification), online: <http://www.cavalluzzo.com/docs/default-source/News-Items/order-and-reasons-%28c1327631xa0e3a%29.pdf?sfvrsn=0&gt; [McCrea (Class Certification]).

The motion for the class action for $450 million in damages was heard in the Federal Court in 2015 and the plaintiff mothers succeeded. It is quite uncommon that mothers litigating as a group prevail, as they did.

Below is a photo of named and lead plaintiff and Calgary mother Jennifer McCrae was sources from the Toronto Star online (ref’d below with link to its source).

Delving more into the actual provision in question, it provided that disability benefits were available only to people who would otherwise be available for work. Being at home taking care of an infant was not that.

In 2013 the clause about being available for work was removed, but the rule preventing sick benefits for mothers on maternity leave remained in force. See Gloria Galloway, “Ottawa Spends $1.3 Million Fighting Sick Moms’ EI Disability Benefits Lawsuit”, The Globe and Mail (30 January 2015) online: The Globe and Mail <http://www.theglobeandmail.com/news/politics/ottawa-spends-13-million-to-prevent-sick-new-moms-from-collecting-ei/article22731091/>.

Turning to the particulars of Jennifer McCrea’s situation, she had contributed to the EI program, had a baby, and received maternity leave payments. However, she became seriously ill while on maternity leave, and so she applied for sick benefits. Her request was denied. She then brought a claim arguing that the strict interpretation of the Act, which required that a sick benefit-recipient be available for work during coverage, was restrictive and that government was negligent in its refusal to allow the sick benefits to sick new mothers.

She pointed out that sick pregnant workers could access the 15 weeks of sick leave followed by maternity leave under the legislation, but that statutes excluded new mothers with medical disabilities/illnesses.

In keeping with the topic overall of Law’s Mum Blog. I note that after the McCrea case was certified by the Federal Courts as a class action, the federal government passed the Helping Families in Need Act. This Act contains provisions based on compassionate grounds and critical illness, a positive addition in the area of disability support. In this regard, it offers a maximum of 52 weeks leave for care of a critically ill child. However, this is not the same thing as a provision concerning care for a chronically ill or severely disabled child.

In that benefit scheme, the definition of critically ill child provided by government excludes a child who is always severely disabled. A critically ill child is defined in that statute is “a child who has a life-threatening illness or injury, that can include various acute phases of illness and for which continued parental care or support is required.

This does not include a child with a chronic illness or condition that is their normal state of health. It is evident that there must be a significant change from the child’s normal or baseline state of health at the time they are assessed by a specialist medical doctor. Which is a separate – but definitely related – care law issue for complex care mothers, in particular. However, given that we’re talking about Federal benefits here, which many caregiving mothers are simply not eligible for because they are not federally employed, it is not something I will focus on.

Suffice it to say that this support policy to mothers sidesteps the issue of what happens when a worker gives birth to a severely disabled infant. If she had a critically ill baby, one wonders if she would have difficulty accessing the additional benefit. Either way it may not be easy to access disability support of any kind. See “EI Benefits for Parents of Critically Ill Children – Overview”, (7 June 2016) Government of Canada, online: https://www.canada.ca/en/services/benefits/ei/ei-critically-ill-children.html

The McCrea case offers another example of how working mothers’ state supports fail in the setting of severe illness or disability. It is an example that invites one to consider government’s rejection of the claims to support in the convergence of disability, mothers, infants and care.

After 6 years of litigation, the Federal Court approved a class-action settlement. Ottawa is ordered to pay approximately $4,000 in sick benefits to approximately 2,000 -mostly mothers – who were seriously ill during their maternity leave, but who were denied money.

I note that Jennifer McCrea, was also awarded another $10,000 for her work as the named plaintiff. This media report stated that she was “very relieved that it is over” < https://www.thestar.com/news/canada/2019/01/30/court-approves-ei-sickness-class-action-settlement-with-new-moms.html>


As noted above, McCrea’s lawsuit began as a tort case. However on its facts, the case speaks volumes about the troubled status of caregiving mothers equality rights in public law. Joyfully the mothers prevailed, which is not a common occurrence in the setting of medical disability and support policy where children are also in the need-of-support frame.

Hat’s off to Jennifer!

Medical Mothers At Work

Siemens Milltronics Process Instruments Inc v Employees Association of Milltronics is an important Ontario case brought by mother Cindy Moore.

Her were legal claims were heard in arbitration.

Siemens Milltronics Process Instruments Inc v Employees Association of Milltronics, 2012 CanLII 67542 (ON LA) may be accessed here: https://www.canlii.org/en/on/onla/doc/2012/2012canlii67542/2012canlii67542.html?resultIndex=1

Medical Moms At Work

Moore alleged that her employer (a company) had breached the Collective Agreement and the Human Rights Code when it refused to pay her for days missed while caring for her severely disabled daughter. Moore’s human rights complaint was for discrimination on the basis of family status. See Human Rights Code, RSO 1990, c H19, s5(1).

The company’s position was that because Moore had failed to work the regular, scheduled days preceding holidays, and because the reason for her absences (emergency child disability care) was unsatisfactory, she was not entitled to be paid for those days.

By way of explanation, Moore submitted that her husband had left that year and she was a sole-support parent. She had two daughters living with her in fact, a 17 year-old who was in high school and another daughter whose age is not provided, but who is noted to have severe medical disabilities. This daughter attended a school full-time in what is described as a “special program”.

In terms of care provisioning that she had arranged and managed, Cindy Moore informed the court that she’d hired a personal support worker (PSW) provided by her local Community Care Access Centre (CCAC) who attended every weekday morning Monday through Friday for 1.5 hours to assist her daughter in getting to school.

After school, a different PSW was employed privately by Moore, and paid for with external funding she received for her daughter from the province.

When this PSW was not available to work (the evidence showed she also worked at a nursing home and therefore had to juggle schedules), then Moore’s own mother provided the care. Moore’s 17-year-old daughter also provided care.

In short, five women provided care to the disabled girl. The father did not provide care, nor had he been involved with his disabled daughter since he left the family.

Turning to the workplace, Moore was a long-time employee who had worked for the company for twenty years. She missed work because, according to her evidence, the school had called her December 22, 2011 to advise her that her disabled daughter was vomiting mucus and blood.

Moore submitted that these signs signaled that her daughter needed heightened care to avoid hospitalization. On December 22, Moore asked both her mother and the PSW to care for her daughter, but neither one was available. She advised her employer of this situation in advance of her missed shifts, making calls to her workplace, where HR was informed. Moore cared for her sick disabled daughter including on December 24th. The business was closed for holidays from December 24 to January 2.

In response to her missed days, the company did not pay Moore for December 25th or 26th, 2011 nor January 1st, 2012 as a result of her having missed days of work during the vacation period. In the decision, it is noted that Moore had been absent 19% of the year rather than the 14% of the time allowed in the collective agreement.

She deserves recognition for the fact that she was able to manage complex care and full time work. That was not to be forthcoming in this venue, however.

The decision states that the company was understaffed during the holiday season due to employees taking pre-approved vacation leave. This was found by the adjudicator to be an “important consideration with respect to the company exercising its discretion to accept additional reasons for employees to be absent on qualifying days.”

Arbitrator Stout, having jurisdiction over the human rights claim as well, reviewed what he referred to as new and evolving case law on family status and concluded: “accepting the proposition that any employer action, which has a negative impact on a family or parental obligation, is prima facie discriminatory is untenable.”

He commented that attendance at work interferes with family responsibilities, but that “requiring work in exchange for compensation is a reasonable and bona fide requirement.” This statement ignored that Moore was working at home providing complex care to her ill disabled daughter without compensation, a feature that on the facts of this case, placed her livelihood in jeopardy.

Mr. Stout’s next opinion was that it is not the mother who was ill, but rather her disabled daughter, stating the mother was medically able to attend work, but did not do so because she did not have child care. He concluded that the reason for the mother’s absence was not linked to her inability to work, but due to her inability to obtain care for her disabled child. He stated the mother had “some control” over finding care for her disabled daughter, but added, “Unfortunately, no one was available…” More importantly, he stated, she had already exhausted her leave entitlements, including those of emergency leave

The result was that this arbitrator found there was no discrimination in response to her allegations that the company breached the collective agreement and the allegation that the company breached the Ontario Human Rights Code family status provision.

The Moore case presents a number of problems. These may be readily identified by those of us, who like Cindy Moore, have undertaken the impossible One is that respectfully, the arbitrator contradicts himself in his reasoning. The fact that Moore was vulnerable to having no childcare meant that she had no control over arranging her affairs to obtain assistance in providing for her disabled daughter, at least on these occasions.

He further stated that he saw Cindy Moore was in a difficult situation as a single mother with a severely disabled child, and was sympathetic “with her predicament” (author emphasis).

Then there was the normative opinion rendered by the Arbitrator. He stated that all children become foreseeably sick and that the difficult choice faced by Moore was no different than those that other parents face where there is a conflict between work and family obligations, adding

“That is why parents must plan for such situations and why emergency leave provisions exist.”

The arbitrator was focused on her leave entitlements, and could not envisage her as entitled beyond them. The comment made that the attendance policy of the company was “important” around the holidays with respect to the company exercising its discretion is an interesting one in light of the fact that the company chose to do so in the direction of punishing the mother of a child with a severe disability, by withholding pay.

The issue of what is the best approach for adjudicators to take in family status cases was addressed in an Ontario Bar Association employment law publication subsequent to the Siemen’s Milltronics decision. The author of it states that the test seen to be most suitable is whether there has been serious interference with a substantial parent/child obligation such that that protection under the provisions is engaged. There must be a “substantial obligation” with respect to the care requirement.

If this point interests you see also Adrian Ishak “Family Status Accommodation in Ontario – Taking the Middle Road” (Toronto: Labour and Employment Law Section, Ontario Bar Association, 2013) online: <http://www.oba.org/en/pdf/sec_news_lab_mar13_fam_ish.pdf> at 3.

 An important issue that remains unaddressed (to this day in fact) whether health care for a severely disabled child will fall easily under what the author calls an amalgamated approach. In such an approach, protections under family status are engaged where a ‘substantial obligation’ must be in the nature of a care requirement, and not the employee’s preference on how such care should be provided.

Arbitrator Stout in the Siemens Milltronics, case did not appreciate this distinction, and he is not alone.

Moreover, where a non-disabled child vomiting mucus and blood at school is framed in the workplace as an excusable parenting emergency, for Moore and others like her, it is a common concern.

And there’s The Rub.

In Siemens Milltronics, the arbitrator sympathized with the employer, “read in” Cindy Moore’s circumstances as comprising undue hardship to the employer and therefore beyond the extent to which accommodations to a parent legally must be made.

The implication to be drawn is that Cindy Moore failed to manage her circumstances well enough, and the message that this case sends is that employers can punish mothers with severely disabled children who miss work because of a risk of a child’s hospitalization and/or lack of disability care.

In fact, Moore’s daughter has cerebral palsy and hypomyelination, the latter described in the case as akin to Multiple Sclerosis. This care situation is far from what other parents typically plan for in relation to their work.

These kinds of care and the law issues are not only an issue in Canada. Consider the US case, Washington v Illinois Department of Revenue, 420 F 3d 658 662 (7th Cir 2005).

The facts of that case are that between 1984-2000 Chrissie Washington worked from 7 a.m.-3 p.m., hours that permitted her care for her child who had Down Syndrome.

Then, she was promoted, and some of her duties were changed. She complained however believing this change was racially motivated.

Then her work hours were changed to 9-5 in another position and she was told to reapply for flexible scheduling. She used her sick and vacation time from 3-5 to provide care to her child, but that option eventually ran out.

She brought forward legal complaints She contends in this suit under Title VII of the Civil Rights Act of 1964, Pub L No 88-352, 78 Stat 241, that the agency moved her to a 9-to-5 schedule in retaliation for her earlier charge of discrimination.

The parties consented to a magistrate hearing their dispute. The magistrate ruled that Washington could not show adverse employment action, because although her work hours had been changed, the duties and salary were the same. However, on appeal to the circuit court, it was held that employers may not exploit workers’ special vulnerability. The court held that “At this stage of the litigation a court must indulge all reasonable inferences in Washington’s favor”, the district court’s judgement below was reversed, and the case was remanded for trial, i.e., it was returned to the magistrate.

Meanwhile the caregiving mothers in these cases simply wanted to be able to support themselves.

Chrissie Washington’s case was discussed in the book Reshaping the Work-Family Debate: Why Men and Class Matter. By Joan C. Williams. Harvard University Press, 2010.