Children’s Consent to Therapeutic Treatment Examined: Recent Appeal Ruling
The provincial Health Care Consent Act enshrines the concept that people receiving any sort of health care treatment must generally give their consent, unless the situation falls into certain prescribed circumstances. A recent case involving a custody dispute over a 14-year old boy had the court examining the contours of its power to order that the boy undergo therapeutic treatment – even against his will.
Factually, it was a scenario where a judge had found that the mother, who was the custodial parent, had “systematically and successfully poisoned the child’s relationship with his father.” Not surprisingly the boy had been showing increasing resistance towards visiting his father. The judge therefore took a bold step and reversed the custody order – now giving the father custody for six months, with access to the mother – in the hope that father and son could reconcile. The judge felt the short-term difficulties arising from the custody reversal were far outweighed by the chance to remedy the potential long-term detrimental impact of the boy’s currently-severed relationship with his father. Besides, the mother had shown no interest in participating in any sort of family therapy that would work towards this goal, so leaving the boy with her would not help matters.
Given its therapeutic component, under the provincial Health Care Consent Act the court must take into account a child’s wishes as that feeds into his or her consent to participating.Importantly, the judge also ordered “reunification therapy” for the boy, which is a strategy routinely used by courts when a separated or divorced parent has attempted to alienate a child from the other parent.
The mother appealed both aspects of the order. First, she claimed that by ordering the custody reversal, the judge had failed to consider the boy’s best interests, including the fact that there would “catastrophic consequences” in separating him from the mother and her extended family. Secondly, she complained that the judge failed to take into account the boy’s own wishes, in that he did not want to participate in the reunification therapy at all.
The Ontario Court of Appeal dismissed the mother’s appeal, finding that the judge had made no legal errors in connection with these two aspects of the order.
On the boy’s lack of consent to reunification therapy, the Appeal Court held that he could indeed be ordered to participate, regardless. The judge’s authority to make this kind of order arose under either the Divorce Act or the Children’s Law Reform Act. In cases where the parents do not agree, the legislation affords the court a broad discretion to make orders about almost any aspect of a child’s life, as long as it is in the child’s best interests. This included making an order for counselling or therapy under either piece of legislation – even over the child’s own objections. As the court wrote:
A court must always consider a child’s view and preferences, but a child’s refusal to participate in a therapeutic intervention will not necessarily determine whether a court can make such an order. Rather, a court must assess the child’s maturity and weigh their wishes accordingly, in relation to the various factors listed in [the Children’s Law Reform Act].
… Judges deciding custody cases should be enabled to create or support the conditions which are most conducive to the flourishing of the child.
Here, the trial judge had reasonably considered the child’s best interests, and had made no legal or factual error in making the order.
As for the custody reversal, there was also no error. The Appeal Court reviewed all the background facts, which revealed that the mother had indeed taken active steps to alienate the boy from his father as early as two years prior to their separation. Very reasonably, the prior judge had concluded that the mother’s openly negative view of the father had contributed to the child’s wish to discontinue visits with his father.
Moreover, the judge had properly considered the impact of the 6-month custody reversal order, including the short-term disruption and the fact the boy was having difficulties living with his mother as well. It was not a stable home environment due to the mother’s “inadequate and emotionally abusive parenting” which itself was “profoundly harmful to the child and contrary to the child’s best interests”, in the Appeal Court’s words. The prior judge’s order to reverse custody was sound.
For the full text of the decision, see:
A.M. v. C.H., 2019 ONCA 764
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