This case from the British Columbia Court of Appeal provided guidance on the “now settled” exception in Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction. Facts of the case The appellant, Mr. Andrzej Kubera…
ET v LD 2017 ONSC 4870
The parties were married in 1992. The parties had three sons together. The parties separated in May 2014. They signed a Separation Agreement that provided that the parties would have joint custody of the children and that they would honour their parenting plan. The parenting plan stipulated that both parents would have equal parenting time with the children.
The Applicant Mother alleged that the Respondent Father was alienating her from the children. The Applicant Mother brought a motion for an order compelling the family to attend the “Families Moving Forward Program” to help resolve the family conflict. The Respondent Father vehemently opposed the family’s participation in the program. The Respondent Father argued that the “Families Moving Forward Program” constituted “treatment” which required the consent of the participants under section 10 of the Health Care Consent Act of Ontario. Notably, this section is directed to health care practitioners. The Respondent argued that there was no consent.
The Applicant Mother argued that the Court had parens patriae jurisdiction to order that the parties and their children participate in the “Families Moving Forward Program”.
Justice Faieta considered two issues before coming to a conclusion:
- Is the consent of the children required for them to attend the “Families Moving Forward Program”?; and
- Is it in the best interests of the children to require the family to attend the program?
Justice Faieta found that there was no evidence that the children were refusing to participate in in the “Families Moving Forward Program”. He further noted, that there is no evidence that Dr. Barbara Fidler, the person in charge of the program, is a “health practitioner” under the Health Care Consent Act of Ontario. Justice Faieta continued to explain that he was not satisfied that the “Families Moving Forward Program” constituted treatment within the meaning of section 2 of the Health Care Consent Act of Ontario.
Notably, section 2 of the Health Care Consent Act defines treatment as follows:
“Treatment” means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health related purpose, and includes a course of treatment, plan of treatment or community treatment plan, but does not include, amongst other things, a treatment that in the circumstances poses little or no risk of harm to that person.
Justice Faieta held that there was no “health related purpose” to the program, consequently, it did not constitute treatment.
Best Interests of the Children
Parens Patriae refers to the inherent jurisdiction of the courts to make decisions concerning people who are not able to take care of themselves. Justice Faieta acknowledged that parens patriae jurisdiction is limited to filling gaps within the legislation. He found that there was nothing in the Children’s Law Reform Act that expressly provided the Court with the authority to make the order sought by the Applicant Mother. Consequently, the Justice found that parens patriae applied to the order sought.
Justice Faieta considered all the evidence presented and determined that the parenting plan, as set out in the Separation Agreement, was “not being respected in letter or in spirit”. He continued to hold that the children were suffering as a result. Consequently, he found that it was in the best interests of the children to grant the order sought by the Applicant Mother.