What happens when a child's consent to healthcare has major ramifications beyond the treatment itself?
This was one of many issues addressed in the BC Supreme Court decision MSR v DMR, 2022 BCSC 1398 rendered on August 12, 2022. This case sought to determine whether the child of the marriage became estranged from his Mother or whether he was alienated from his Mother by his Father. In answering this question, the Court needed to determine if the child's consent for his therapist was irrefutable, as the therapist played a key role in the alleged alienation.
This case determined that:
> The child was indeed alienated from his Mother by his Father, with the child's therapist showing bias against the Mother and contributing to the breakdown of the parent-child relationship.
> A child's consent under the Infant's Act does not extend to a child's choice of a specific therapist, only to the therapy treatment itself.
The child had a strong, loving relationship with his Mother and Father during their marriage. The parents decided to separate when the child was 10 years old and started to divide their time with the child equally. However, many issues that plagued the marriage persisted.
The Mother's parenting style was structured and enforced rules around bedtime, the child's use of electronics, and his school attendance. The Father had a much less rigid style with the child, soliciting the child's views and typically acquiescing to them.
Around this time, the parents were worried about their child's low weight and referred him to a food therapist. The therapist was in communication with both parents through email and text messaging. As the child's therapy progressed, the Father shared more and more about the son and Mother's relationship with the therapist including that: the Mother would take away the child's sweets and eat them in from of him, that the Mother spent all the family's money on herself, that she constantly badgered the Father and her son, that her residence was dirty, and that she was "horrible" to her son.
In late 2019, the parents finalized their separation agreement with the help of coaches and collaborative lawyers. Neither the Father nor any of the other participants raised any issues about the Mother's ability to parent during the process. However, shortly after the Father provided additional information to the therapist including that the Mother had instilled improper eating habits in the child, and that she had been abusive towards the Father throughout their marriage.
The Court never accepted these facts or characterization of the facts as true, but found the correspondence probative as to the Father's views of the Mother.
Over the next few months, the Mother's and son's relationship began to deteriorate further, aided by the Father's actions and attitudes towards the Mother – even going so far as to not drive the child to the Mother's house when it came to her parenting time. The therapist meanwhile was in constant communication with the Father and the child at one point suggesting they change the custody arrangement, the primary residence, or the visitation rights.
The Court found that by this point in time, the therapist had determined that the Mother should not be parenting her child according to the parenting schedule she had agreed to, and was attempting to undermine the shared parenting schedule without the Mother's knowledge.
Alienation or Estrangement
The Court determined that the difference between an estranged child and an alienated child lies in the cause.
Estrangement is the label applied when the child understandably refuses contact with a parent because of their behaviour or dysfunctional conduct. In such circumstances, the child's rejection of the parent may be a reasonable and adaptive response to the estranged parent's behaviour.
Alienation is when there is little or no objectively reasonable cause for the child's rejection of the parent and particularly when it is the product of the other parent's hostility and antipathy towards their former spouse.
The Court had a finding of alienation on the part of the Father against the Mother, as there was little or no objectively reasonable cause for the child's rejection of his Mother, and the Father's/therapist's allegations were either completely false or deeply exaggerated.
A Child's Choice in Therapists
The therapist and the Father took the position that, having obtained the child's consent under s. 17 of the Infants Act, R.S.B.C. 1996, c. 223, the therapist could not be removed as the child's care provider. Indeed, A.B. v. C.D., 2020 BCCA 11, makes clear that the court's jurisdiction to review, and possibly reverse, the consent given by an infant under s. 17 of the Infant's Act is limited.
As the Court notes, however, s. 17 of the Infant's Act differentiates between "health care" and "health care provider". It specifically allows an infant to consent to "health care", but not a specific provider. The Court found in these circumstances consent under the Infant's Act does not extend to the child's choice of a specific therapist, only to the therapy treatment itself.
Best Interests of the Child
The Mother sought an order permitting the removal of the therapist from the child's file. The Court weighed the best interest of the child considerations and noted that normally they would strongly oppose this order.
The child had worked with the therapist for many years and had a strong bond with her. However, just as with his Father, the child's bond had become an unhealthy reliance, such that the therapist's continued participation in his treatment would be detrimental. Maintaining stability in this relationship would result in active harm. The therapist saw herself as an advocate for the child, going so far as to suggest disobeying court-ordered parenting arrangements which led in part to the breakdown of the first attempt at reunification.
The Court found that reunification with the Mother would be impossible until the therapist was removed from the child's life.
Although consent for treatment can be obtained through the Infant's Act, the Court was not convinced that the Act can be used to require specific treatment that has already been consented to be provided by a specific therapist. In this circumstance, consent under the Infant's Act does not extend to providing consent for the therapist to provide treatment to the child.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.