28 June 2009

Supreme Court of Canada issues Important Judgment

On Friday 26 June 2009 the Supreme Court of Canada released its judgment in A.C., A.C. and A.C. v. Director of Child and Family Services, 2009 SCC 30. The case involves a young woman who, at the age of 14, was forced to undergo a blood transfusion against her wishes in the course of her medical treatment. The child, a Jehovah's Witness, had refused to give her consent to the treatment, whereupon, following a psychiatric assessment, the child was apprehended by the Manitoba child welfare agency which authorized the transfusion on her behalf.

Although this case was largely argued as a breach of the child's rights under the Charter of Rights and Freedoms, it will likely have a huge impact on family law as a result of the court's discussion of the best interests of the child and the weight to be given to a child's wishes in assessing the child's best interests.

Under s. 16(8) the Divorce Act, the child's "best interests" are the sole criterion to be taken into account in making decisions about access and custody, "as determined by reference to the condition, means, needs and other circumstances of the child." The Family Relations Act says much the same thing at s. 24(1), although the FRA provides a more lengthy list of factors and says that the court should also consider the views of the child, "if appropriate."

In family law cases, the courts have been willing to consider the preferences of even very young children, but the amount of weight the court will give those preferences depends entirely on the child's age, development and maturity. Most of the time, this means that the court will listen to wishes of any child able to express them and be increasingly inclined to follow those wishes as the child grows up; the court will take the wishes of 11 year olds quite seriously, it will take the preferences of 14 year olds still more seriously, and it will almost always do what 16 year olds want.

In A.C., the child was 14 years old, almost 15. The Manitoba child welfare law said that the court could authorize medical treatment it believed to be in the child's best interests, with the wishes of children 16 or older being determinative of the issue. As a result, the court's power to force the child to have the transfusion rested wholly on the court's assessment of the child's best interests knowing, however, that the child objected to the treatment.

The court held that the best interests test in the Manitoba law should be considered to operate on a sliding scale, with the child's preferences being given more weight as the child grows older, subject to the court's assessment of the child's maturity. The degree of scrutiny applied in this assessment, however, should increase with the importance of the decision to be made, taking into account:
  1. the intellectual capacity and degree of sophistication of child to understand the decision to be made;
  2. the stability of the child's views and whether they are a true reflection of the child's values and beliefs;
  3. the impact of the child's lifestyle, family relationships and social affiliations on the child's ability to exercise independent judgment; and,
  4. the existence of any emotional or psychiatric vulnerabilities impacting on the child's decision-making ability.
Neither the Divorce Act nor the Family Relations Act prescribe an age at which a child's wishes must be taken into account when a decision must be made about the child's parenting arrangements, and even the FRA, which says the court may take those wishes into account doesn't say they must be taken into account. As a result, the case law is somewhat muddy on when and whether children's wishes must be heard, how much weight should be given to them when they are heard. This decision should give critical guidance on all of these issues.

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