Ottawa Citizen
Thursday 8 June 2000

CAS argues infant was taken because of father's behaviour

Mother's disability not a factor in decision, lawyer tells court

Peter Hum
The Ottawa Citizen

A 13-day-old boy's fate is in an Ottawa judge's hands after a Children's Aid Society lawyer argued yesterday that the behaviour of the newborn's father, and not his disabled mother, places the baby at risk.

The CAS, which last week seized the then-five-day-old child from hospital and placed him in foster care, argued at an emergency custody hearing that the baby should be placed for the next three months with his maternal grandmother.

The child's mother, who is in her mid-20s, has cerebral palsy and uses a wheelchair. She has said that the CAS focused on her disability in taking away her baby, literally as she was breastfeeding in hospital.

However, CAS lawyer Martha Tweedie argued in court yesterday: "The difficulty does not lie in the mother's disability."

She argued that the baby, who was born healthy on May 26, would be at risk because the 22-year-old father is "overwhelmed" as it is caring for his disabled wife and assisting his father, who also has a disability.

"He is not going to be able to shoulder the additional burden," Ms. Tweedie said. The CAS first became aware of the couple after a hospital employee called with concerns about the father's ability to cope with a newborn.

The apartment the couple lives in has been poorly kept and unhygienic, and a public health nurse who visited June 3 expressed concerns that breastmilk collected for the child could become contaminated, Ms. Tweedie said.

She also stated that the father has an anger management problem. His arguments with his wife have led to police and apartment security being called, court heard.

The couple cannot be named because their child's identity is protected under the Child and Family Services Act.

Lawyer Danielle Dworsky, who represents the child's father, condemned the CAS's treatment of her client and his wife. "This couple has been treated with such disrespect by the society," she said.

The CAS's assertions against the father are exaggerations and fabrications, Ms. Dworsky said. The father was clearly anxious and upset when his son was born as his wife's pregnancy was high-risk and he had been barred from the operating room, Ms. Dworsky explained. "He did not know whether his wife was going to live or die," she said.

She said the couple, who have been together for three years, are loving, committed and well-supported by their fellow Mormon churchgoers.

"I would be concerned about depriving a child of parents who are so committed to each other," Ms. Dworsky said.

Ms. Tweedie did refer to the mother's disability, saying the young mother cannot get up at night for her child. It is doubtful the mother can carry or hold her son on her own, Ms. Tweedie added.

George MacPherson, the mother's lawyer, acknowledged his client's apartment might be messy at times because her wheelchair tracks in dirt.

Court also heard fruit flies were in the apartment and it smelled of urine. Mr. MacPherson responded that the fruit flies are now gone and while his client's incontinence might cause unpleasant odours, a bad smell doesn't place the child at risk.

"Incontinence is not incompetence," Ms. Dworsky added.

Mr. MacPherson said his client will have to be careful, but she is used to being careful. "There's no evidence she tried to do caregiving beyond her abilities," he said. "Her child is entitled to her strengths as well as her limitations," Mr. MacPherson said.

Ms. Dworsky said the baby's maternal grandmother, with whom the CAS would place the child, has an "ulterior motive." She noted the grandmother is not willing to take in her daughter and grandson, or to move in to assist them.

Outside court, the father said his mother-in-law has only spoken to him twice in the last three years. "There's only a few members of her family that like me," the father said.

Outside court, the grandmother said: "My intentions are solely to provide a safe, neutral home for the baby until they can get the services they so desperately need."

Before the CAS apprehended the baby, the couple had turned to the CAS for help in obtaining services, including an attendant care apartment which would have given the mother assistance for needs such as being transferred from her wheelchair to a sofa.

The couple is on a waiting list for the service, which is not likely to be available to them until next year, court heard.

The couple has had the services of a visiting homemaker as well as a public health nurse and occupational therapist. Court heard the couple are receptive and friendly to professional help, and want to learn to be good parents.

"So they need help cleaning their home. Give them that help," said Ms. Dworsky.

"There needs to be services in place that aren't quite there yet," Ms. Tweedie said. Until then, the baby is at risk, she contended.

Justice Jennifer Blishen gives her decision Monday. Until then, the parents are allowed to see their baby four hours each day.

Copyright 2000 Ottawa Citizen