Family law cases have a tendency to bring social issues under the judicial eye. As society’s understanding of gender and sexuality continue to develop, judges occasionally comment on these issues.These comments in turn shed light on broader issues underpinning the law.
That is certainly the case in A.B. v. C.D., 2020 BCCA 11, in which the Court of Appeal decided a case with important implications for parents of all children. In A.B., the child was assigned female at birth, but identified as male. In conjunction with his medical team, the child (14 at the time of the appeal) decided to pursue a course of hormone therapy. The father strongly opposed the treatment (and indeed the entire concept that the child was transgendered). The father and child both brought cases to the court. The father also brought the situation to the attention of the media.
The case made its way through a series of appearances in the Supreme Court. A first judge ordered that the child could validly consent to medical treatment (including hormone therapy), notwithstanding the opposition of the father. The same judge declared that the father referring to the child as a girl, or attempting to convince the child to cease treatment, was “family violence” . This led to a second judge issuing a protection order (a police-enforceable form of civil restraining order) prohibiting the father from speaking with others, including the media and the child, about the child’s decision to receive hormone therapy.
The Court of Appeal upheld the lower court’s finding that the child could consent to the treatment despite his father’s objections. However, the Court of Appeal found that the judges’ determination of family violence and the issuance of a protection order went too far.
On the first issue, the Family Law Act permits parents to make most important decisions about their children as part of “parental responsibilities”, which include decisions such as where a child will live, how he or she will be educated, and whether he or she will participate in extracurricular activities.
However the Act has an important exception concerning medical treatments. The exception allows a child to consent to health care even if his or her parents or guardians do not consent, if a doctor or other health care provider decides the treatment is in the child’s best interests, has explained the treatment to the child, and is satisfied the child is giving informed consent to the treatment.
This was the case in A.B., where the lower court found that the child had the ability to consent to the treatment based on the evidence of his health care providers, a finding the Court of Appeal upheld.
This ruling follows the trend in Court of Appeal decisions which has been to push trial judges away from detailed and ongoing management of families. The Court of Appeal seems not to want trial courts to become the deciders of first resort when it comes to particular parenting decisions, even ones as important as a child’s transition between genders.
The Court in A.B. also commented on the nature of the concept of “family violence. “Family violence” is a serious allegation that is sometimes tactically raised in family law litigation. A finding that a parent has engaged in “family violence” can taint that parent in the eyes of the court. The lower courts have defined family violence quite broadly to include acts other than physical violence.
In A.B. the Court of Appeal encouraged restraint in labelling conduct “family violence”. The Court found that while the father’s conduct was clearly hurtful to the child, there was insufficient evidence that this hurt was intentionally inflicted by the father. In the Court’s view, caution should be exercised before defining “psychological or emotional abuse” as family violence, particularly where the impugned conduct stemmed from a disagreement between family members on important issues such as parental roles and medical treatment.
As a result, the Court of Appeal found that the use of a protection order, a breach of which could lead to criminal charges, went too far and replaced it with a “conduct order”. The conduct order still prohibited the father’s conduct, especially with respect to his communications with the media, but was not enforceable by the police and does not carry the stigma that a protection order necessarily brings with it. Failing to comply with a conduct order is contempt of court and could still attract serious consequences.
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