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We recently wrote about the issue of co-parents who disagree over whether their children should be vaccinated against Covid-19, once they are deemed eligible. Parents have long engaged in disputes over how to manage medical decisions regarding children post-separation or divorce, although some fail to realize that children also possess the right to determine their own medical decisions under provincial legislation. How do courts balance a child’s consent, account for their independent wishes and treat parental decision-making in these matters?

For individuals who are capable of giving consent, section 10 of the Health Care Consent Act (HCCA) states that a health practitioner who proposes a treatment shall only administer the treatment if the person has given consent. Further, there is no age of consent in Ontario legislation, with section 4(1) of the HCCA stating that a person has capacity to decide medical questions if they are able to understand the information that is relevant to a treatment decision and able to appreciate the reasonably foreseeable consequences of their decision.

Can Courts Order Families to Attend Counselling?

One issue that has recently emerged deals with the intersection of consent and the court’s practice of ordering parties in family proceedings to pursue therapy to mitigate conflict, facilitate family relationships, and ensure that parenting arrangements will meet the needs of children.

In Testani v. Haughton, it was recognized that it was not clear cut whether courts have jurisdiction to order counselling. For instance, there is no specific authority in the Children’s Law Reform Act (CLRA), with courts sometimes resorting to their inherent parens patriae jurisdiction to make such orders. The judge found this approach unsatisfactory, determining that statutory jurisdiction to order therapeutic counselling could be found in sections 24(2), 28 (1) (b) and (c) (vii) of the CLRA as an incident of custody or access, which provides:

24(2)  In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

28. (1) The court to which an application is made under section 21,

(b) by order may determine any aspect of the incidents of the right to custody or access; and

(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

This approach was later followed in Leelaratna v. Leelaratna. That case dealt with reunification therapy when the child experienced stress and anxiety during visits with his father following separation. A psychologist recommended counselling sessions to rebuild a functional relationship. While legislation does not specifically authorize the making of therapeutic and counselling orders, courts routinely make a variety of orders in the course of adjudicating parenting matters which are not set out in statutes. Courts have always relied on the wide powers granted to them as authority to make orders to advance the best interests of children when parents disagree. As Justice Audet noted, often there are not legal solutions to family problems, and “therapeutic orders can be very effective tools to help the family move forward, reduce the parental conflict, and help children transition through the emotional turmoil of their parents’ litigation in a healthier way”.

Therapeutic Orders can be Justified to Protect Families

Despite courts having jurisdiction to make therapeutic orders, is the consent of parents or children still required? For consent to be required under the HCCA before a therapeutic order can be made there must be a finding that 1) the therapeutic order constitutes “treatment”, and 2) that it is administered by a “health practitioner” as defined by the HCCA. As well, the definition of treatment under the HCCA requires the intervention to be “health-related” and a course of action that poses a risk of harm. Looking at family counselling and therapeutic orders in the context of family law proceedings, the court in Leelaratna noted that not all forms of counselling will be “health-related”. Those that assist parents and children to resolve disputes, improve their relationships, manage stress, and transition to their new family reality will seldom be considered treatment. However, in deciding whether to make an order, courts will weigh the likelihood that the parent or child will meaningfully engage in the process. When a mature child strongly objects, it may be inappropriate to make the order.

Giving Weight to the Views of Minor Children

The tension between the child’s best interests standard in family law, parental decision making, and the right of mature minors to make independent decisions regarding medical treatment are issues that courts continue to balance. The Supreme Court of Canada has recognized that the application of the best interests standard to young children is uncontroversial, though mature adolescents have strong claims to autonomy. Consequently, greater weight will attach to a minor’s wishes as their maturity increases.

In N.K. v. A.H., the issue of representation for the child emerged in the context of a dispute between the parents over the proper treatment for the child who was diagnosed with gender dysphoria. The child had begun transitioning to the male gender, with one parent disproving of the treatment on the basis that the child had not adequately assessed to determine if the treatment was in the child’s best interests. Justice Skolrood determined that the child, J.K., should be permitted to participate in the proceeding. The case was different from typical family cases where the views of a child may be sought on issues of parenting time where the child’s views are presented to the court through third-party reports. This case, dealing with whether the child should be permitted to transition, was really “about J.K. and his role in determining his own future.”. Justice Skolrood went on to state that “In my view, these issues cannot be properly considered without J.K.’s direct participation, nor would it be fair to J.K. for the court to attempt to do so.” This signals that in similar cases a child’s views may be accorded greater weight than in more usual disputes over parenting issues. An undertone through Justice Skolrood’s decision is a recognition that children are best placed to communicate about their independent identity and needs.

Similarly, A.B. v. C.D., weighed whether a child could proceed with hormone therapy despite objections from the father. AB was assigned female at birth but identified as a male since he was aged 11. At 12, he began to socially transition, and after two years of identifying as a male wished to pursue hormone therapy. A medical team determined that AB met the criteria for gender dysphoria, a condition where individuals feel distress when the gender identity they experience is different from their biological gender. AB’s medical team discussed treatment, which AB consented to. AB’s father opposed the treatment and commenced litigation. The Court accepted that review of a mature minor’s right to consent was limited, with health care professionals best placed to inquire into the capacity of minors’ decision-making. This acknowledges the autonomy of mature minors and the good faith of health care providers. The Court was satisfied that AB’s consent was appropriate.

Assessing the Right of Mature Minors to Make Independent Treatment Choices

Courts continue to have a role assessing whether treatment accords with a child’s best interests and whether they have capacity to consent. However, practically courts recognize that medical professionals are best placed to evaluate capacity and account for the “myriad of subtle factors that may affect an adolescent’s ability to make mature, stable and independent choices in the medical treatment context.”

Contact Boulby Weinberg LLP in Toronto for Guidance on Medical Consent for Minors

The lawyers at Boulby Weinberg LLP in Toronto focus exclusively on family law matters and have experience helping clients navigate parenting matters providing the resources to make informed child-focused decisions. Our lawyers can help you with solutions tailored to your unique circumstances. To arrange a consultation please complete our online questionnaire or contact the firm at 647-494-0113 ext. 102.

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