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PARENTS AND CHILDREN - Children’s rights

Thursday, February 13, 2020 @ 9:07 AM  

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Appeal by the father from an order declaring his child A.B., now 15, validly able to consent to hormone therapy treatment, that referring to A.B. as a girl or attempting to convince him to halt treatment would be considered family violence and making declarations regarding AB’s best interests, from a protection order restricting the father’s ability to speak with others, including media outlets and A.B., about A.B.’s decision to receive hormone therapy and from an order dismissing the father’s action for injunctive relief as vexatious and an abuse of process. A.B. was a transgender teenager. He was born female but perceived himself to be male. While still a minor, he wished to pursue hormone therapy to align his body more closely with how he perceived his gender. His father strongly opposed A.B. receiving this treatment, while his mother was supportive. A medical team assessed A.B. as sufficiently mature to make the treatment decision on his own. A.B. filed an application requesting declarations under the Family Law Act, including that he was entitled to make his own medical decisions and that treatment for gender dysphoria was in his best interests. He also sought a protection order. The father applied for an order temporarily restraining the gender transition treatment in the context of the father seeking an injunction barring treatment until extensive evidence was heard on the merits of the treatment recommended for A.B.

HELD: Appeal allowed in part. There was no reason to interfere with the finding that A.B.’s consent was valid. The first two orders were, however, issued in a procedurally irregular fashion and could not stand. The appeal from the order dismissing the father’s action was dismissed. The declarations regarding A.B.’s best interests in the first order were set aside. A conduct order was substituted for the protection orders that did not restrict the father’s right to express his opinion in his private communications. The central issue in A.B.’s application did not include a declaration that certain conduct constituted family violence. There was no factual basis for the declarations made in the first order. Section 37 of the Family Law Act did not contemplate freestanding judicial declarations as to the best interests of the child that were unconnected with agreements or orders respecting guardianship, parenting arrangements, or contact. Where a child consented to health care in accordance with s.17 of the Infants Act, s.37 did not furnish a court with authority to enter upon a de novo consideration of the child’s best interests in respect of medical treatment. There was no jurisdiction under ss.37 and 38 of the Family Law Act to make bald declarations as to the best interests of the child or family violence in the absence of specific orders respecting guardianship, parenting arrangements or contact with a child. Part of the protection order was based on the declaration regarding family violence that was now set aside. There was evidence that the father’s refusal to acknowledge A.B.’s gender was clearly hurtful to A.B., but there was insufficient evidence in the record that his conduct was grounded by an intent to hurt A.B. or that his refusal to agree with A.B.’s decision about the treatment was ultimately unresponsive to A.B. when A.B. wished to disengage. A conduct order, rather than a protection order with its serious implications, allowed the court to ensure that this proceeding was conducted in a manner that minimized the conflict between the parties. A limited conduct order, made with the objective of protecting the best interests of A.B., was substituted.

A.B. v. C.D., [2020] B.C.J. No. 24, British Columbia Court of Appeal, R.J. Bauman C.J.B.C. and H. Groberman and B. Fisher JJ.A., January 10, 2020. Digest No. TLD-February102020012