Archive for the ‘Custody’ Category

Supreme Court to rule on rights of “mature minors”

May 22, 2008

Janice Tibbetts , Canwest News Service

Published: Monday, May 19

OTTAWA — When she was almost 15, a hospitalized teen from Winnipeg was apprehended by child welfare authorities and forced against her religious beliefs to undergo a blood transfusion that she compared to “being raped and violated.”

The surgery kicked off an intense legal dispute that reaches the Supreme Court of Canada Tuesday in a test of the rights of “mature minors” to make their own decisions when stacked against the competing interest of the state in protecting children.

Legal clashes over court-ordered blood transfusions and other medical treatments have played out nationwide and the Supreme Court’s judgment in the case is expected to set a standard on when children are considered capable of making their own calls.

The girl, a Jehovah’s Witness identified as A.C., is now almost 17 years old, has moved to Ontario and plans to attend Tuesday’s hearing.

She is described in a court document as a top, award-winning student who is bilingual, loves to read Jane Austen and John Grisham, and suffers from Crohn’s disease, a chronic, incurable disease that inflames the intestinal tract.

“The central issue on this appeal is whether A.C. has the legal right to make autonomous medical treatment decisions,” says a written court brief from her legal team.

Two years ago, A.C. was admitted to hospital to be treated for bleeding of her bowel. After she refused a transfusion because it is forbidden in her religion, her doctor tipped off Winnipeg Child and Family Services, who immediately apprehended her from her parents, who are also Jehovah’s Witnesses.

Child welfare authorities obtained a judge’s approval for a transfusion after satisfying him that A.C. was in immediate danger of death or serious injury.

A.C. contends that children’s services did not have the “right or obligation ” to interfere, just as her parents did not have the right because she had the capacity to make her own decision.

“Having someone else’s blood pumping through my veins, stressing my body, caused me to reflect on how my rights over my body had been taken away by a judge who did not care enough to talk with me,” she wrote in a 2006 affidavit filed in the Supreme Court.

“That day, my tears flowed non-stop. Nothing can properly describe how I was feeling and still feel today. I could liken it to being raped and violated but even those words do not express my feelings strong enough.”

A.C. says she had the right to pursue other medical treatment that respected her religious conscience, including iron pumped into her body intravenously to help it produce red blood cells.

She wants the Supreme Court to rule that the government violated her charter rights to equality, religious freedom, and life, liberty and security of the person and that Manitoba’s child welfare law, applying to all children under age 16, is therefore, unconstitutional. The case no longer affects A.C. personally because she is no longer a minor.

Unlike some provinces, Manitoba does not make exceptions for “mature minors” — older children who are deemed capable of understanding the nature and consequences of their medical decisions.

A.C.’s lawyers say that Ontario, Nova Scotia, Prince Edward Island, Newfoundland and Labrador and the Yukon all permit capable persons of any age to decided their own medical treatment without state interference.

The Manitoba government and Child and Family Services want the Supreme Court to view the case through the lens of the “best interests of the child” and reinforce a 1995 benchmark ruling that ordered a blood transfusion for a Toronto toddler, against the wishes of her Jehovah’s Witness parents.

“Age as a prerequisite for the ability to make important decisions is a pervasive feature of the law throughout Canada,” government lawyers wrote in a court submission.

“These distinctions are based on the common sense appreciation that there is a correlation between age and maturity in decision making, particularly where decisions may have irreversible consequences.”

Alberta, British Columbia and Nova Scotia are intervening in the case on Manitoba’s side.

A.C. is bringing the case to the Supreme Court after losing in the Manitoba Court of Appeal.

One of her lawyers, Shane Brady, also represented the parents of four Vancouver infants – the survivors of a set of sextuplets – in a failed court challenge two years ago against them receiving blood transfusions.

There have been other high-profile cases of Jehovah’s Witness teens who have unsuccessfully challenged blood transfusions, but this is the first time the Supreme Court has decided to weigh in on the issue.

In 2001, 16-year-old Bethany Hughes of Calgary refused to undergo blood transfusions because of her faith. After receiving 38 transfusion, she died of leukemia in September 2002, sparking a court battle between her father and the Jehovah’s Witnesses.

Three years ago, a B.C. Supreme Court judge ruled against a 14-year-old Jehovah’s Witness decision to refuse life-saving blood transfusions. The teen suffered from a potentially fatal form of bone cancer and the court said that the rights of a mature minor to make her own medical decisions did not trump the court’s authority to protect her life and safety.

In another more recent case, an 11-year-old boy from Hamilton, Ont., was apprehended by the Children’s Aid Society this month and is being forced to undergo chemotherapy against him and his family’s wishes, after a judge ruled that the child is not capable of understanding the implications of his refusal.


Children, transfusions and religious rights: Wading back into the debate

February 25th, 2008

by Jon Bricker

To what extent can sincerely held religious belief justify the denial of medically necessary treatment to a sick child? The question has dogged the legal and healthcare communities for years. Canadian courts have issued dozens of rulings. Legislatures have responded with rules that attempt to balance religious rights with child protection. Even the medical community has responded with new, less invasive treatments that purport to reduce the likelihood for such conflicts.

And yet, the debate continues. In January, a British Columbia court heard Charter arguments from the parents of sextuplets, four of whom received blood transfusions over their parents’ objections after the children were born prematurely last year. And last summer, the Alberta Court of Appeal gave a Calgary father the go-ahead to pursue a civil claim against lawyers for the society that represents Jehovah’s Witnesses in Canada. The suit alleges that the lawyers advised Bethany Hughes to refuse blood transfusions, and thus contributed to the death of the leukemia-stricken 16-year-old. (Ed. note: Bethany Hughes ultimately received several court-ordered transfusions. She died in spite of these.)

Now, the Supreme Court has decided to wade in, as well. The SCC has recently granted a Winnipeg teen’s request for leave to appeal a Manitoba Court of Appeal decision, which upheld a blood transfusion order issued over the teen’s objections. The SCC is scheduled to hear A.C., et al. v. Director of Child and Family Services (Manitoba) on May 20.

Facts & Trial Decision

The appeal involves A.C., a 14-year-old when the case began. After severe gastrointestinal bleeding linked to Crohn’s Disease, A.C. was admitted to the hospital in April, 2006. Following a second bleed, and a determination that her hemoglobin count was dangerously low, doctors sought consent to administer a blood transfusion. A.C. and her parents refused consent on grounds they were Jehovah’s Witnesses, and subscribed to an interpretation of the bible which forbade the ingestion of blood. Doctors subsequently contacted the Director of Child and Family Services, who apprehended A.C. and promptly sought a court order for a transfusion.

At the hearing, the court heard testimony from A.C.’s father, her doctor, and a social worker. It also heard evidence related to A.C.’s own wishes, including an advance medical directive executed by A.C., in which she indicated that she would not consent to a transfusion. The court nonetheless ordered a transfusion, concluding that this would be in A.C.’s “best interests”; the standard established by s. 25(8) of Manitoba’s Child and Family Services Act, which governs non-consensual treatment of children under 16. (By contrast, the legislation provided that children 16 and over should have their treatment decisions respected.) Following the ruling, A.C. received a blood transfusion. Her temporary wardship also eventually expired. Nonetheless, she appealed to the Manitoba Court of Appeal, which issued its ruling in February, 2007.

Court of Appeal

The Court of Appeal unanimously upheld the trial court’s decision. First, it rejected arguments that the Manitoba’s legislation did not apply, and that A.C.’s case should have instead been decided under the common-law “mature minor” rule.

Next, the court considered A.C.’s principal Charter argument &mdash: that Manitoba’s legislation infringed ss. 2(a) (freedom of conscience and religion) and 7 (life, liberty and security of the person) of the Charter. Although the court dealt with each provision separately, the two analyses closely resemble one another.

The court readily acknowledged that the legislation engaged A.C.’s s. 7 interest in security of the person, and that it infringed her section 2(a) rights. It proceeded to find, however, that the imposition of medical treatment in this case was both in accordance with the principles of fundamental justice, and justified as a reasonable limit on A.C.’s rights. According to the court, the legislation reflected the state’s interest in child-protection and the sanctity of life. And while the legislation no doubt interfered with personal autonomy, it was carefully crafted to minimize this interference. While the legislature had not guaranteed that the wishes of children under 16 would be respected, it nonetheless took their wishes into account, and in so doing, turned its mind to the question of the “mature minor.” Further, the legislative scheme provided children and their parents with ample procedural protections, and ample opportunity to have their concerns heard.

The court similarly dismissed suggestions that the legislative scheme discriminated on the basis of age, contrary to s. 15 of the Charter. Although the scheme clearly provided for differential treatment, and did so on the basis of an enumerated ground, A.C. failed to demonstrate that the scheme had the purpose or effect of denying human dignity. On the contrary, the court likened the case to Gosselin v. Quebec, [2002] 4 S.C.R. 429 and Canadian Foundation for Children, Youth and the Law, [2004] 1 S.C.R. 76, in which the impugned schemes were found to correspond to the unique “needs and circumstances” of young people.


This is not the Supreme Court’s first foray into this debate. In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 (aka “Sheena B.”), the SCC dismissed arguments from a Toronto couple who claimed their Charter rights were violated when their infant daughter received a court-ordered blood transfusion over their religious objections.

However, A.C. is distinguished from Sheena B. in several respects. Most important among these differences, while the focus in Sheena B. was on the rights of parents, the focus in A.C. is squarely on the child’s own right to refuse treatment to which she herself objects.

the real action at the Supreme Court will almost certainly be at the justification phase of the justices’ analysis.
In turn, this distinction has several implications. First, it means the real action at the Supreme Court will almost certainly be at the justification phase of the justices’ analysis. In Sheena B., although they unanimously dismissed the parents’ claim, the justices were divided as to reasons for doing so. The justices split 5-4 over whether the parents’ s. 2(a) rights had been violated, and 4-4 over whether their s. 7 liberty interests were engaged. On both issues, four justices found no violation, and thus, no need to proceed to justification. Their opinions make clear, however, that these justices were solely concerned with whether parents could assert Charter rights so as to jeopardize the health of a child too young to make her own treatment decisions. But given a child old enough to make such decisions and assert her own Charter rights, the Sheena B. justices all seem to suggest that they would have found a Charter violation, and proceeded directly to justification. Indeed, this may help to explain why, in A.C., Manitoba’s Director of Child and Family Services conceded both a s. 2(a) violation, and that A.C.’s liberty interest was engaged.

Second, the presences of a child claimant means the justices can consider something not considered in Sheena B. — namely, whether the impugned legislative scheme infringed s. 15 of the Charter. At first glance, a dismissal of A.C.’s equality arguments would seemingly be consistent with Gosselin and Canadian Foundation, in which the SCC suggested that differentiation based on age (and in particular, youth) was less likely than differentiation based on other grounds to compromise human dignity. However, A.C. could arguably be distinguished from those cases — for example, on grounds it involves additional Charter violations, which are not present in those cases, and which have significant potential to influence the human dignity analysis. If the Supreme Court does find a way to distinguish A.C., the ruling would likely be welcomed by youth advocates, some of whom have expressed concern about the implications of Gosselin and Canadian Foundation for the future of age-based discrimination claims.

[filed: Constitutional law Children Charter of Rights and Freedoms A.C. (2008)]

© Osgoode Hall Law School


Mother wins child brainwashing case

May 16, 2008

Boy can be sent to U.S. facility to undo father’s bid to instill hatred

KIRK MAKIN, Globe and Mail

May 16, 2008

JUSTICE REPORTER — A 13-year-old boy whose domineering father systematically brainwashed him into hating his mother can be flown against his will to a U.S. facility that deprograms children who suffer from parental alienation, an Ontario Superior Court judge has ruled.

Mr. Justice James Turnbull ordered the boy – identified only as LS – into his mother’s custody. He said the boy urgently needs professional intervention to reverse the father’s attempt to poison his mind toward his mother and, in all probability, to women in general.

“There will probably be future significant problems experienced by LS if the court does not intervene – including significant personal guilt for his part in the rejection of his mother, anger towards women, and dysfunctional relationships with women,” Judge Turnbull said.

The judge flatly refused to take the boy’s opinion on the therapy into account, saying that LS cannot exercise “free discretion in expressing his views” because of the influence his father has had on him.

Judge Turnbull observed that the father, 54, has repeatedly breached court orders granting the mother limited access to her son. He said the boy has come to perceive himself and his father as “intertwined and unable to distinguish one’s thoughts from the other.”

As part of his campaign of absolute control, the father dictated toxic e-mails for LS to send to his mother.

The father also removed photographs of the mother from her son’s bedroom.

Judge Turnbull also noted that in 2005, the father pursued an assault charge against the mother. As a result, LS, at the age of 10, was required to testify against her in criminal court.

“Frankly, the exercise of such parental indiscretion stuns this court,” Judge Turnbull said, adding that the mother was acquitted.

Jeffery Wilson, the mother’s lawyer, said yesterday that the case is a breakthrough for parents attempting to win back children who have been intentionally alienated from them.

“This is a precedent in Canada – the first time a Canadian court has recognized the lack of resources to deal with the disease of parental alienation and answered it with a private remedy – the Family Workshop for Alienated Children,” Mr. Wilson said.

“The age of a child is no reason to justify a lost opportunity to know and benefit from both of the child’s parents,” he added.

In his ruling, Judge Turnbull praised the work of the FWAC and urged the Ontario government to encourage similar programs.

According to evidence at the hearing from Dr. Richard Warshak, a founder of the FWAC, many children are so set against participating in a program that reunites them with a hated parent that they have to be transported by police or probation officers – sometimes in restraints.

“In the case at bar, Dr. Warshak has suggested that LS would travel to the United States with transport agents on one flight, and his mother would follow closely on another flight,” Judge Turnbull noted in his ruling.

Dr. Warshak said that sessions focus on teaching children to assess their domestic situation critically, and to appreciate that both of their parents are essential to their well-being.

Sessions lean heavily on video presentations, intensive discussion with psychologists, and opportunities for the child and his or her alienated parent to interact.

Upon returning home, children receive after-care from a local psychologist. After several months, the child is usually ready to commence a relationship with the parent who caused the alienation.

The parents in the LS case married in 1982 and separated in 2005. LS was placed in the primary custody of his father, a salesman.

The father changed phone numbers, ignored e-mails and left the mother – a 49-year-old who works in public relations – with no alternative but to drive to arenas where her son’s sports teams were playing in hopes of getting a glimpse of him.

The mother launched court action last year in an attempt to win sole custody of the boy. After a nine-day hearing last fall, Judge Turnbull reserved his decision.

He said that an e-mail the mother received in late 2006 was indicative of the father’s control over the boy. “I don’t want to see you and I never will want to see you ever again and who do you think you are to say my dad makes my distions (sic),” it said. “I MAKE MY DISITIONS. GET IT THROUGH YOUR HEAD. If I want to see your side of the family, I will call them.”

A child psychiatrist who assessed the father, Dr. George Award, said in a report that he was a mistrustful, autocratic woman-hater who “built a demonic image” of his ex-wife and turned his son into his entire social life.

Child with cancer to go home; CAS to oversee treatment

May 14, 2008

KATE HAMMER, Globe and Mail

From Wednesday’s Globe and Mail

May 13, 2008 at 10:15 PM EDT

HAMILTON, ONT. — The tug-of-war with an 11-year-old leukemia patient at its centre reached a truce Tuesday in court, as the boy’s family regained custody and Children’s Aid Society retained control of his health care.

For a young boy who wrinkles up his freckled nose at the soy milk and brown rice served to him every day in his hospital bed, the truce means that he could be at home enjoying hamburgers as early as Saturday.

Legally, however, the decision leaves his family and the agency in the same place they were last week, before the boy was seized by the CAS after his family refused chemotherapy treatment on his behalf.

Lawyers for both parties and the judge agreed that a decision needed to be reached in order to protect the boy from the conflict that had escalated into his father being handcuffed and escorted from Hamilton’s McMaster Children’s Hospital, loud protests outside the hospital and invasive news media attention.

Ontario Family Court Judge Alex Pazaratz told the courtroom that he agreed with the arguments presented by both sides, but that, ultimately, the debate could not play out in front of a gravely ill young boy.

Reporters will be barred from having contact with the boy and protests against the CAS were ordered to stop while the family is allowed to seek second and third expert opinions on the boy’s prognosis.

As they exited the courtroom, the father’s shoulders slumped a little less, and his wife, dressed in black pants and golden open-toe sandals, hooked her arm into his.

“We’re ecstatic,” he said outside the courtroom. “What’s different is that we’re complying so that we don’t lose our baby.”

He added that “the hard part” will be explaining to his son that he will have to begin another 22-month cycle of aggressive cancer treatment. The father and stepmother promised the judge that they would not prevent their son from receiving the chemical arsenal of cancer treatment mandated as a right to all children by the Ontario Legislature.

Although the chemotherapy will continue, friends and family members who attended court Tuesday, including an aunt dressed in a woven poncho and an uncle transported in a wheelchair with flat tires, were jubilant as they left the courtroom.

“We won!” shouted one family friend.

But five kilometres away, sandwiched on a narrow hospital bed between a stuffed dog and a doll in a red felt dress, a young boy sought an entirely different kind of victory.


Should an eleven year old decide whether or not to have chemo treatments?


Globe editorial

A child can’t weigh life and death
From Tuesday’s Globe and Mail

May 13, 2008 at 8:03 AM EDT

Children who are dying of cancer do not, and should not have, the right to reject potentially life-saving medical treatment. Child-welfare authorities in Hamilton were right to ask for a court order forcing an 11-year-old boy to receive chemotherapy. And the court was right to give the order.

The boy is entitled to his own feelings about the most appropriate course of treatment. He has certainly earned them. Diagnosed at age 7, he has a generally curable form of cancer, acute lymphoblastic leukemia. Chemotherapy has caused him to vomit, feel bloated and have pain in his spine and difficulty walking. He had been cancer-free for a year after an earlier round of treatment. When the disease returned in January, he tried a round of chemotherapy again. He now wishes to try natural remedies such as vitamins, even though doctors say he will die without chemotherapy.

An adult would have the right to choose the natural remedies. The right to refuse medical treatment is fundamental. But that is because adults have the capacity to understand what is at stake. It would be perverse to put children’s rights on such a pedestal that an 11-year-old could be exposed to harm, even death, over something he cannot understand.

The common-law concept of the “mature minor” with the right to make some decisions affecting his own body emphasizes the first word: mature. It strains credulity to think that any 11-year-old has enough understanding of life to be able to weigh what he is giving up in making a decision to forgo potentially life-saving treatment. It would also be difficult to understand the medical course of treatment and the prognosis, if treated. There may be other matters as well that the child cannot think through. In this case, the child has fetal alcohol syndrome and, his father says, has a mild intellectual delay. He also has serious behavioural problems for which he takes medication. So his judgment is probably below the level of a typical 11-year-old.

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Usually it is the role of parents to help ensure that 11-year-olds are given every chance to live. But the father of this 11-year-old (he was 4 when his mother died from a brain tumour) says he wishes to respect his son’s wishes. The father says his son would like to be at home with his family, “and play with his sister and just try to have fun and live as long as he could live.” The father may feel he is trying to protect the boy’s happiness and dignity; but the parental role is to make vital decisions for which the child lacks capacity.

This case is different from those involving teenage children of Jehovah’s Witnesses who reject medically necessary blood transfusions. In those, the children are heavily influenced by the beliefs of their religious community, and may feel that to maintain the love and respect of their parents they need to abide by their beliefs. Judges have questioned to what extent 15- and 16-year-olds have a fully free will in these cases.

The 11-year-old in Hamilton may know his own body, and may not wish to suffer any more. The father may respect his son’s wishes. But loath as a democratic society should be to intervene in family matters, it is right to assert the value it puts on children’s lives by insisting that children can’t make life-and-death decisions.


Boy, 11, can’t endure chemo any more, defiant father says

From Monday’s Globe and Mail

May 12, 2008 at 3:40 AM EDT

He is angry, misses his family and is losing his reddish-brown hair. His dad says his “spirit’s broken.”

The 11-year-old Hamilton boy, who has leukemia, was seized by the Children’s Aid Society last week and is being forced to undergo chemotherapy against both his and his family’s wishes.

“We may still lose him and we may still lose against them, but that doesn’t mean I’m going to give up,” his father said in an interview yesterday.

The child’s father and stepmother are exploring their legal options and friends have hired Marlys Edwardh, a prominent Toronto lawyer whose long-time law partner is veteran counsel Clayton Ruby.

Last night, about two dozen people, including members of the child’s family, held a vigil in the rain outside his hospital window. The boy waved down at his supporters, who held candles in Styrofoam cups.

At a hospital appointment for routine tests last Thursday, the Children’s Aid Society of Hamilton took the boy, who cannot be identified under youth-protection laws, into its temporary custody. Chemotherapy treatment was then commenced.

His family can visit him only under the watchful eyes of CAS workers and security guards; his father was evicted from the hospital in handcuffs after reacting in anger when his son was seized.

A judge earlier ruled the boy is not capable of understanding the implications of refusing chemotherapy.

Two of Canada’s top pediatric oncologists have said he will die without the aggressive treatment.

The deeply spiritual youngster, who likes dancing, singing and writing stories, is to be released from hospital tomorrow after his treatment is finished, his father said. It is unclear if the CAS intends to place him in foster care or release him to his family.

A spokeswoman did not return messages yesterday.

The father called the ordeal “awful, hell on wheels.”

He said he will fight to regain custody of his son, saying the boy has suffered enough.

“The best thing for him to do would … be home with us so that if he did pass away, at least it would be home with us and we could take care of him and we could make sure that he’s sent away the way he deserves to be, not poked and prodded and treated like a criminal,” he said.

Family friend Belma Diamante, who hired Ms. Edwardh, said the boy’s views have not been heard by the court and child welfare agency.

“Every institution and every individual, if they’re claiming that we’re making the best decision in [the boy’s] interest, then naturally [he] has to be heard,” said Ms. Diamante, who met the boy when she helped him realize his dream of dancing in The Nutcracker three years ago when she was president of the Canadian Ballet Youth Ensemble.

The child was diagnosed with acute lymphoblastic leukemia, which has a cure rate exceeding 80 per cent, when he was 7.

He underwent chemotherapy and in January, marked one year cancer-free. But the disease came back just a few weeks later.

The boy, who has aboriginal ancestry, did one round of chemotherapy in February and then decided to stop aggressive treatments in favour of natural remedies, including chelation therapy, vitamins, oregano and green tea.

Chemotherapy makes him extremely ill and causes effects such as vomiting, bloating, pain in his spine and difficulty walking.

“He told us that he didn’t want to undergo any more treatment because he felt that it wasn’t going to give him quality of life, that he felt that it would probably take away his life,” his father explained.

“He would rather just go traditional and natural and take it for as long as it would take him so that he could be with his friends and so that he could be at home with his family and play with his sister and just try to have fun and live as long as he could live.”

The boy also has fetal alcohol syndrome and is mildly intellectually delayed, his father said.

He also has serious behavioural problems, for which he takes medication. His mother died of a brain tumour when he was 4.


Image from “Boy, 11, can't endure chemo any more, defiant father says”

Friends of a boy taken into temporary custody by the Children’s Aid Society so that he can receive chemotherapy wave to him from outside his window at McMaster Children’s Hospital in Hamilton Sunday evening. A vigil was held to protest against the boy’s treatment by the authorities. (Glenn Lowson for the Globe and Mail)