Woman with guide dog/Une femme avec un chien-guide

Achieving inclusion in family law and child protection

What would you do if you had a client with a mental disability who wanted to fight for custody of her child ... or a developmentally handicapped adult client who wanted to make decisions about his own care?

With the implementation of standards for the Accessibility for Ontarians with Disability Act (AODA), accommodating clients with disabilities has become part of the public discourse.

Victoria Starr (Chair of the Family Lawyers Association of Ontario), Melanie Moore (Centre for Independent Living in Toronto) and Kerri Joffe (staff lawyer at ARCH) spoke from the heart about these dilemmas at a seminar hosted by the ARCH Disability Law Centre and the Law Society of Upper Canada’s Equity Initiatives Department.

At the same seminar, ARCH staff lawyer Dianne Wintermute and Ayshia Musleh, a disability rights advocate and accessibility specialist in Human Rights and Equity Services at McMaster University provided lawyers with important strategies to use in serving clients with disabilities.

Attitudinal barriers: a major problem

What is an attitudinal barrier?

The Ontario Governmentdefines attitudinal barriers as “those that discriminate against people with disabilities,” such as thinking that people with disabilities are inferior, or assuming that someone with a speech impairment can’t understand you.

Starr and Joffe both agree that attitudinal barriers are a major problem for their clients.

Parents whose children are in danger of being seized and adults with disabilities subject to custody orders are entitled to accommodation, points out Ms. Starr. But it is not always easy for them to achieve it in the face of race, culture and ethnicity issues.

Options for accommodation

She urges parents to request accommodation such as speech therapy in child support cases. “The child support guidelines are a floor, and the court can order more supports – so long as budgets for children who have a disability clearly link expenses with the child’s disability,” she says.

It is also possible to arrange for child support or ODSP for children over 18 who have a disability, she says, even if they are in an Independent Living Centre. One must, however, provide evidence of the nature and extent of the disability and demonstrate that more financial resources are necessary to support necessities of life.

Understanding capacity of clients

ARCH staff lawyer Dianne Wintermute and Ayshia Musleh, a disability rights advocate and accessibility specialist in Human Rights and Equity Services at McMaster University, provided lawyers with important strategies to understand capacity and to serve clients with disabilities.

According to Wintermute, lawyers are required to provide proper accommodation to all clients to every extent possible in order to maintain a normal client-solicitor relationship – and this includes clients with intellectual, mental or physical disabilities.

The capacity to instruct counsel is fundamental to access to justice, she says. The test for this capacity is the same for everyone – whether the person can understand the information necessary to make a decision, and can appreciate its foreseeable consequences.

She also notes that capacity can be fluid and task-specific. A person who is taking medication to treat a mental illness may have capacity on one occasion, but might be off medication on another occasion, and lack capacity.

Likewise, a person with an intellectual disability may be able to make decisions on some legal issues such as power of attorney but not others, such as estate planning.

left to right: Kerri Joffe, Melanie Moore, Victoria Starr, Carole Simone Dahan, Tess Sheldon, Ayshia Musleh, Dianne Wintermute, Tom Thuan Ngoc Phan

left to right: Kerri Joffe, Melanie Moore, Victoria Starr, Carole Simone Dahan, Tess Sheldon, Ayshia Musleh, Dianne Wintermute, Tom Thuan Ngoc Phan

What legal professionals can do

Among Wintermute’s tips for serving clients whose capacity may shift:

  • Presume capacity at the outset of the meeting.
  • Ask clients whether they require accommodation – such as frequent breaks, slower conversation speed or room for a mobility device – before the first formal meeting.
  • If engaging an interpreter, make sure this individual doesn’t know your client, to ensure lack of bias.
  • Ask clear, open-ended questions.

Moore, meanwhile, encourages lawyers to think of all aspects of peoples’ lives, not just their disabilities.  “As a blind woman from the Aboriginal community, I used to be afraid of my disability and I knew very little of my own culture,” she says. Some reserves still are not accessible, and I faced challenges as a woman as well. Now I’m learning my stories and sharing them with my three children. It’s getting better all the time ... But attitudinal barriers are the biggest challenge.”

When dealing with custody and access, she stresses the importance of impartially assessing a person with mental health issues to ensure that accommodation is possible and that children are safe. An unemployed mother whose first language is not English and who also suffers anxiety as a result of her experience as a victim of violence can, for instance, still be a capable parent, so long as there is a plan of care in place that includes reasonable expectations.

For more information on accessibility, please see the Ontario Ministry of Economic Development, Trade and Employment’s Understanding Accessibility web pages.

Visit the Accessibility portion of LAO’s website to learn more about Legal Aid Ontario’s commitment to accessible legal services.

Do you have any suggestions, comments, or useful resources on this topic? Please reply in the comments below.

Helen Kohl

About Helen Kohl

Senior Corporate Writer at Legal Aid Ontario. Also a licensed yoga instructor. Passionate about social justice issues, junk TV, films, great fiction and travel. Seasoned corporate communications consultant for government and the private sector and long time magazine journalist. Member of the International Association of Business Communicators Toronto Chapter.

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