Norm Influencers Move The Dial On Who Cares

I remember the 1984 vice presidential campaign in the states. I was 22 years old and just becoming interested in politics. I recall being excited that a woman was running for vice president. That excitement was tempered when during a campaign tour, Agriculture & Commerce Commissioner, Jim Buck Ross, publicly asked VP candidate Geraldine Ferraro, “Can you bake a blueberry muffin?” Apparently the audience, as well as presidential candidate Walter Mondale and even Geraldine Ferraro herself, laughed. ”I sure can,” she replied, but ”can you?”  This is reported to have caused even further laughter from those attending to listen to the candidates.

All of this reminds me now of a popular song from my grandparent’s era and hit song for The Candy Mountain Girls, called “Can She Bake A Cherry Pie?” Jim Buck Ross is next reported to have stated to Ferraro that ”Down here in Mississippi, the men don’t cook.” He added ”Let me tell you something else too while we’re on the subject. Do you know in Mississippi we have three Miss Americas. We have the prettiest women not just south of the Mason-Dixon line, but in the whole country.” Then he finished by saying ”with the exception of New York.” If you find reading this brief exchange surprises you, that is largely as a result of changed societal norms. No one notices anymore that men are cooking in kitchens at home or that women are leaders of nations.

The upshot is that some private norms have changed, and so too have some public norms. Norm changers are themselves often outliers. Geraldine Ferraro for example, was the first member of her family to go to college, having been told by a family member that since she was pretty, it was unnecessary for her to get a higher education. From there she went on and earned her law degree (with honors) from Fordham University School of Law – this she obtained while working nights as well as teaching at a school. She was moreover only one of two women in her graduating class. The rest is history. She practiced civil law, she became a prosecutor and she became a mother of three. Oh, and a vice presidential candidate.

Ferraro is her mother’s surname, which she proudly retained. The reason she gave is that her mother supported the family after her father had died. Keeping the name Ferraro was to honor her mother. That too was a norm-influencing act. I’m still interested in the late candidate for vice president of the United States. In large part for her very willingness to participate in norm changing activities that put her directly in the cross hairs of many who wanted societal norms to stay just as they were.

Well, that was then and this is now. Some things have changed somewhat and some things have changed a great deal. Social media is ever present in this day and age. That’s a big change and in particular because social media has a role to play in changing norms. By way of example, many of us have Twitter accounts now. Recently the Federal government of Canada sent around a survey asking how we access our information about the COVID19 pandemic, and Twitter was the item that I clicked. Twitter interests me for a variety of reasons. One is that it allows me to communicate with …well anyone, including some celebrities, famous authors and scientists and some well-known politicians. This aspect makes Twitter exciting. Twitter also de-distances us from those were were previously very distant from. It makes the world smaller. At least digitally so. Twitter has also proven an effective tool for communication of course.

I follow Prime Minister Trudeau on Twitter. His Twitter account describes him as: Father, Husband, 23rd Prime Minister of Canada. Why is his Twitter handle description interesting to me?  Well because we see someone who is in the highest public office in the nation, noting his relationship to his children first, before noting that he is, also, by the way, the Prime Minister of Canada. This ordering matters, and it matters a great deal. It matters because it is a signifier of a change in social norms. Not only for men – but for all those in public office, too.

For Geraldine Ferraro it was clearly problematic that she sought to be in high public office as a national leader because she was a woman. As a woman she was socially assigned certain tasks by society and these tasks were to be kept out of the political domain. Jim Buck Ross, referred to above, kept drawing attention to such tasks and roles, in order to discredit Ferraro. His questions implied that she had stepped out of her lane and moreover that she should get back in it. Ferraro’s response was that she could be in both lanes – but asked the Commissioner if he was likewise able to do so. A new norm was in formation.

In the case of the Twitter account, we see that what was once a private matter, such as that our Prime Minister is a parent, is publicly touted as a key life role while he is in office. This sends a message not so much of “family” man but of a man who ‘cares’. Similarly Canada’s highly skilled Federal Foreign Affairs Minister, Chrystia Freeland, has this notation with her Twitter handle: Deputy Prime Minister of Canada, Liberal MP for University—Rosedale. Proud mother of three. Being a woman in this important political role she may have good reason for placing her status as a mother at the end, rather than at the beginning of her information. But, we do see it. And she states that she is proud of her status in motherhood. That this Federal cabinet minister is engaged in mothering is relevant to who she is personally and politically and who you will know her to be. That relationship counts as much as the other where the public is concerned. It makes her more relatable too, in this day and age. Ditto for Mr. Trudeau.

To provide another example of what I mean when I say social norms are changing and in particular around care we can turn back to another example from the Prime Minister of Canada. Reporting recently on the COVID19 pandemic, The Globe and Mail mentioned Prime Minister Justin Trudeau as “holding cabinet meetings by phone and talking to G7 leaders by video, with occasional breaks for Star Wars-themed Lego and to give his youngest son a bath.” In 2020 we can see for ourselves that a country can be run from the home, where the leader is also playing with or bathing his young child.

Well perhaps I overstate my case. Those of us who tried be “super Moms” in the 1990’s know that to be so. That does not take away from my point however. Which is this. Care and all that it is made up of  -be it baking muffins for folks you love and/or support, bathing young kiddos or elders and its many other features – is being shaped and reshaped socially as you read this. I feel particularly so in the pandemic.

I was inspired to write Blog post this after listening to a recent interview on CBC. In it a middle-aged son spoke about being hired to work at the care home where his elderly mother lives in Toronto. His mother has MS and he was particularly worried about her in the COVID19 setting as she resides in a care home. Now he provides her with her personal care, just as she once did for him. Listening to this interview brought tears to my eyes and an image to my mind. It is the last image in the famous children’s book by Robert Much entitled “Love You Forever”. At the end of the book, artist Sheila McGraw has painted an image of the boy, now a man, sitting in the chair rocking his now aged Mum. Life as a full circle – of care. The link to this interview is below. It is an interesting listen, and it is certainly a heartwarming one.

The actions of the man interviewed are part of an evolving norm-in-motion. And given that we are in a care-crisis right now, as well as in a medical treatment crisis with the pandemic, I find it comforting to know that care is not immutable. It is not the natural biological female aptitude as we once thought it to be. It is bigger than that. It is a human aptitude, like playing and baking and bathing.

References

Robert Munsch. Art by Sheila McGraw. Love You Forever.1986.

https://www.barnesandnoble.com/w/love-you-forever-robert-n-munsch/1002322471 (image)

Sons Extraordinary Mission to look after his mothers to care for his mother. CBC News · Apr 10, 2020

https://www.cbc.ca/radio/frontburner/a-son-s-extraordinary-mission-to-care-for-his-mother-1.5528767

Politicians Continue to Lead From Isolation. Politicians continue to lead from isolation amid COVID-19 pandemic. Laura Stone March 20 2020

https://www.theglobeandmail.com/canada/article-politicians-continue-to-lead-from-isolation-amid-covid-19-pandemic/

Mississippi Farm Topic. Does She Bake Muffins? New York Times August 1984 by Bernard Weinraub

Can She Bake A Cherry Pie? The Candy Mountain Girls. 1953

That Tort, Alas, Wasn’t Mum’s Law

Lisa & Angus (c)

Legal decisions are the trees we see out the window as we drive along the rugged legal landscape. Cases that have involved mothers are forest stands dotted along the way. “Mothers & The Law” has not been full on declared as an area of legal expertise in the academe to my knowledge, but it is an area that is ready for it.

This is not to say mothers & the law have been ignored (just think about Professor Dorothy Roberts work!) no- it’s just that our legal concerns have not yet been identified as “a thing” more broadly in scholarly legal domains. The proof of this was exposed in my old paperback of “Mothers on Trial” by Phyllis Chesler. The pic below is of my care-worn paperback copy, which I bought in 1992. Chesler’s written other important books, too of course (Women & Madness was amazing). https://phyllis-chesler.com/

My old copy of Phyllis Chesler’s inspiring book

In Blogging this morning I’m going consider just one small area of law involving women that abut on mothering issues – those cases involving women who were sterilized without their consent. Leilani Muir’s case in Canada is one example of this and a case that garnered a great deal of attention in this country. She wanted to have a child and that choice was taken from her. The Muir case however is famous in law as a disability rights case within the legal context of institutionalization, and not as a mothering rights case per se. This fact points to the issue of how our issues can vanish in how legal stories are told. See Muir v. Alberta, 1996 CanLII 7287 (AB QB), <http://canlii.ca/t/1p6lq>, retrieved on 2019-12-02

I’m not focusing on Muir here, though. But rather I’m going to focus on an American case called Robinson v. Cutchin, 140 F. Supp. 2d 488 (D. Md. 2001). It caught my attention in an article by Courtney Sriwatka in the Cardozo Journal of Law & Gender and so I thought I’d Blog a bit about it.

The circumstances of Glenda Ann Robinson’s (and her husband’s) lawsuit were quite different from those of Leilani Muir. The Robinson case involved Glenda, a woman who was a mother, and who, sued her doctor & the hospital he worked out of for damages for a harm done to her. The doctor had performed a tubal ligation on Glenda after the birth of her sixth child. Understanding (incorrectly) that Glenda had consented to this additional procedure, the doctor sterilized her during an emergency C-section.

Glenda did not learn about this until she tried to conceive again, unsuccessfully.

The lawsuit did not go in the mother’s favour. Finding that Glenda was not entitled to sue for damages, the court commented on the fact that Glenda Robinson had 3 children prior to her marriage and also had 3 children with her husband. Legally relevant?

The Court went on to deny Robinson’s claim of battery, and asserted that even if the sterilization occurred without Robinson’s consent, “[tlhe touching by the doctor was not harmful as it did not cause any additional physical pain, injury, or illness” other than what was caused by the C-Section.” Accordingly, it ruled that what happened “did not offend Mrs. Robinson’s reasonable sense of personal dignity” as required in the area of law she was suing in.

Author Courtney Sriwatka notes that the judge was skeptical about the very concept of “reproductive injury.” And that he opined that it did not deserve the same level of recovery as other bodily injuries. Such views are a view from somewhere, but not from mothers who have experienced motherhood related harms.

Sirwatka argues that “such a skeptical view runs contrary to the theory that reproductive injury can be characterized as bodily injury, since it relates to organs within a woman’s body.” Sirwatka further notes, it is unlikely a court likewise conclude that denial of the use of an organ in other contexts does not comprise tortious conduct.

And Here’s The Rub. Sirwatka states the notion that Glenda’s having been sterilized having had no effect on Glenda’s personal dignity “ignores the fact that Mrs. Robinson prided herself on being a mother, and that Dr. Cutchin deprived her of the opportunity to have more children.” (at 117 of Sirwatka’s article). Her comment resonates with so many other cases that have come to my attention over the past several years.

The court moreover did not permit Glenda’s claim of intentional infliction of emotional distress claim to be heard by a jury, finding that the doctor’s conduct wasn’t sufficiently extreme or outrageous to meet the standard for the tort of intentional infliction of emotional distress in that jurisdiction.

Sirwatka states that in dismissing cases brought by mothers in regards to injuries they experience that some judges have thus marked the particular claims of mothers as unworthy of the courts’ resources.

Glenda Robinson was Law’s Mum. But the tort she sought to wield wasn’t alas, Mum’s Law.

Women’s claims within the framework of negligent or intentional infliction of emotional distress, have been plagued, argues Sirwatka, by various obstacles to recovery, which have historically privileged physical harms over emotional and relational injury. The black and white photograph above is of my friend Lisa and her then young son Angus (which I took and which I developed myself in a dark room on a tropical island in another lifetime) captured a unique status, one that is worthy of a range of robust tort claims. It’s time.

In Canada Muir prevailed in her claim against Canada (2002) where Robinson in the US did not (2001). Different facts, different laws, different jurisdictions. Same harm.

In Canada – hopefully – we now have Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543 https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16664/index.do which does allows for claims of mental harms – without DSM labels – in Canada. Saadati is a hopeful decision for litigating mothers, including for caregiving mothers who may wish to advance such claims in relation to caregiving harms.

It remains to be seen if Saadati can be taken up by mothers to get monetary remedies in the face of conduct that’s harmful in their unique status as mothers providing complex care. And while Glenda Robinson did not prevail, her case lives on. We can learn from what it offers.

I will return to the ‘will-be-happening’ matter of mothers, care and tort law in another Blog Post. Promise!

The Glenda Robinson case was sourced from: Courtney Sirwatka’s brilliant “Unlikely Partners: Tort Law as a Tool for Trans Activism” (2013) 20 Cardozo Journal of Law & Gender,1, 111

Need Of Care Is Not Child Abandonment

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.”

Anne Larcade and her two sons image from The Toronto Star link provided below

“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

The File of Kristine Gravel- McKeague & her baby daughter Pénélope Ottawa 2009

I have to say that my “Slow Blog” is beginning to look like a fast one!

This, like my second Blog post were examples of cases that I presented at a talk I gave in 2011 at The School of Nursing at York University https://nursing.info.yorku.ca/ entitled Making the Link: Public Policy and Mothers of Children with Disabilities in Canada (pictured here on the right after I had presented this talk (with Dr. Nazilla Khanlou).

Truth be told I’m purloining my own earlier work!

To provide a bit of background about Kristine whose photo appears above, she’s a married Mum & has a supportive spouse. When Pénelope came along Kristine had a child already. She was therefore an experienced mother.

Also note worthy in the context of this Blog Post, Kristine holds a degree in Sociology and Childhood Studies from Roehampton University in England. She’s a family support worker at a major community service centre. She had studied infant massage.

What more training might you need for motherhood you ask?

And indeed, Kristine believed that with her professional skills, her specialized education & her solid social support system, and her deep love of Pénélope that she could cope with being a complex care mother. She found in her case that was not so however.

When she sought state assistance for care and support for Pénélope she came up against some controversial provincial care policy.

Kristine had asked the province (the then Ontario Ministry of Community and Social Services) for a placement for Penelope in a care centre where she, Kristine, would continue as Pénélope’s Mum, making all decisions for her daughter’s care. This became thorny and the care facility stated they needed custody to be able to make medical decisions for Pénélope since the baby would be in their care. Kristine was advised that she would have to enter into a legal process and relinquish custody of her daughter to the Province in exchange for the care and services they both badly required. Moreover, as Kristine was to learn, this loss of custody would legally be deemed to be available as a result of the legal abandonment of Pénélope by her parents under the child welfare provisions.

Thus, state wardship was offered in lieu of voluntary care. This is a curious situation since state care would not be in the best interests of Penėlopė & accessing it this way surely engages Kristine’s constitutional rights under The Canadian Charter of Rights and Freedoms. It was a lose-lose for mother & child.A bigger conversation than this post allows here.

As well, the state wardship option was not designed to support this mother’s mental health, and in fact this approach to care has had, and continues to have, just the opposite effect on women’s mental health.

Indeed this very thing was claimed in a lawsuit brought against Ontario by another mother, Anne Larcade, in an Ontario Court in 2002. I will Blog about the 2006 Ontario Court of Appeal decision in the Larcade case another day. For now suffice it to say that Anne Larcade, in both a Maclean’s Magazine interview and also in The Star online, where asked Ontario “Where’s The Humanity?” That was many years ago now in solid piece of journalism by Tanya Talaga. It is a questions mother’s in such disputes continue to ask across Canada. See https://www.thestar.com/news/ontario/2009/07/23/wheres_ontarios_humanity_mom_asks.html

Interested in that now? You can look at the article Appeal Court Overturns Disabled Children’s Lawsuit by Karen Howlett in the Globe & Mail from November 26, 2006. https://www.theglobeandmail.com/news/national/appeal-court-overturns-disabled-childrens-suit/article971953/

Anne was a single working mother of two. She was not in a minority as a single caregiving mother in North America. Most children with disabilities are being raised by single mothers, as disability rights scholar Levine showed in 2008).

Moreover, the Literature tells us that among employed married middle aged Anglophone parents of children with disabilities with diverse diagnoses 42% of parents demonstrated symptoms of psychiatric distress (Thurston, et. al, 2011). The solution for mental and emotional distress in Caregiving Mothers is not child loss. It is child support.

I note that both mothers, Anne and Kristine, ultimately obtained care in Ontario, without child loss, after each entered into a dispute with the province and each presumable entered into negotiations for care with them as well. Not all mother’s are capable of that. What about them?

The above photo of Kristine & Pénelopé was featured in Parents of Disabled Kids Face Agonizing Choices by Author & Journalist Tanya Talaga in The Star at https://www.thestar.com/life/health_wellness/2009/06/24/parents_of_disabled_kids_face_agonizing_choices.html