A recent case highlights how the Health Care Consent Act, which calls for judges to take a child's wishes into account when it comes to consenting to treatment, is not the ultimate consideration in family law cases where the court is considering reunification therapy in child alienation cases.
In A.M. v. C.H., which dealt with a 14-year-old child who had been estranged from his father by his mother, the Ontario Court of Appeal ruled that overlaid on the HCCA is the Divorce Act and the Children's Law Reform Act in Ontario, "which say the best interest of the child are the ultimate test for the court," says Laurie Pawlitza, a partner in the family law group at Torkin Manes LLP.
"In particular, it's spelled out in the Children's Law Reform Act that, while a court is required to consider when determining best interest the views and preferences of the child, the court still has the overriding jurisdiction under the family law legislation to make a determination as to best interest. Basically, they said the best interest test gives the court the jurisdiction to make a decision even though it's possible the HCCA would mean you need the kid's consent."
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