Donald Wilson is a family lawyer practicing in New Westminster, and the managing partner of Atticus Legal. He obtained his Bachelor of Laws at UBC in 2010. Donald is the past Party Leader of the BC Libertarian Party and has run as a candidate in Provincial and Federal elections on platforms of personal and political liberty.
Parents routinely have disagreements about important medical decisions for their children. Such disagreements rarely get easier for separated parents. Usually, they get much worse. By the time parents have separated the relationship is often characterized by bitter anger and sour memories. Trust is hard to come by. In the hardest of these cases, parents turn to family court to resolve their dispute.
What does the court say about who makes medical decisions for the children after parents separate? When does a child get to decide for him or herself? Does the child’s opinion matter at all?
In British Columbia, the court considers parenting disputes under one of two statutes: the Family Law Act (“FLA”) or the Divorce Act. Given recent amendments to the Divorce Act and related case law, there is considerable overlap in the application of these statutes.
Consent for medical treatments
Giving consent for medical treatments is one of several “parental responsibilities” under the FLA. After separation, each parent can exercise parental responsibilities unless an order or agreement says otherwise. Many parents approach parenting after separation without understanding this fact, to their great frustration. It helps to realize there is little practical difference to before separation: in the ordinary course of a marriage-like relationship, either parent might routinely give medical consent for their child.
Giving consent for medical treatments is different from other parental responsibilities in one important respect: a parent’s authority is subject to a mature child’s right to consent to medical treatments on his or her own behalf.
When the court is asked to intervene in the area of parental responsibilities there is strong authority that the court should not step into a guardian’s role or dictate the minutiae of parenting.1 Rather, the court should allocate parental responsibilities – including the authority to give medical consent – between the parents. The court can also give directions on parenting matters.
It is not uncommon for the court to allocate parental responsibilities to one parent or the other, or alternatively to give final decision-making authority to one parent. In the case where one parent exclusively exercises parental responsibilities, or has final-decision making, the other parent has no authority to consent to (or refuse) medical treatment for their child.
When litigating about parental responsibilities it is not helpful to make personal attacks or political points. Nor is it the time to attempt an authoritative critique (or justification) of vaccination. Instead, parents should focus on how parental responsibilities ought to be allocated between the parents. The history of the child’s care and the parenting schedule are two of the most significant factors that will determine this question. It often makes sense for the parent with the majority of parenting time to exercise parental responsibilities, particularly if that parent has historically taken care of the child’s medical needs.
As a child matures, the locus of decision-making for medical treatments shifts to the child. In such a case, the parent’s ability to exercise parental responsibilities become less relevant. Instead, the child’s maturity level and his or her views about the treatment are more relevant. Ultimately a health care provider, not the court, has the authority to determine if a child is mature enough to consent to (or refuse) medical treatment.2 In such a case, the court ought to merely direct the parties to take the child for medical advice from a health care provider.
Family disputes about childhood vaccination are best resolved through discussions between the parents, the affected child, and the child’s doctor. Parents should approach these discussions understanding that each parent already has the authority to give consent (or communicate refusal). In other words, they should talk as equals in this regard. Both parents should also understand that their authority to give consent is subject to a mature child’s contrary views. When discussion becomes impractical or fruitless, the court can order that one or the other parent exercises parental responsibilities. Rather than deciding if the child should be vaccinated or not, the court should focus on how parental responsibilities are allocated between parents. Finally, even when the court orders that one parent solely exercise parental responsibilities, that authority is subject to a mature child’s right to consent.
1 N.R.G. v. G.R.G., 2017 BCCA 407 (CanLII)
2 AB v. CD, 2020 BCCA 11; the Infants Act