Month: October 2025

“I am very aware of the importance to take into consideration the presence of family violence in any family matter dealing with the parenting of a child (Barendregt v. Grebliunas, 2022 SCC 22).  The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interest analysis (see s. 16(3)(j) and (4)).  Family violence is broadly defined in s. 2(1) of the Divorce Act as any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person.  In the case of a child, family violence includes the direct or indirect exposure to such conduct.

Section 2(1) provides a non-exhaustive list of the many forms of family violence which include physical abuse, forced confinement, sexual abuse, threats to kill or to harm, harassment including stalking, psychological abuse and financial abuse.  Other types of conduct not specifically mentioned in s. 2(1) of the Divorce Act have been recognized as a form of family violence.  For instance, the concept of a pattern of coercive and controlling behaviour has been found to encompass the following types of behaviours:

a) Making numerous unsubstantiated allegations against the other party;

b) Unilaterally changing court-ordered parenting time terms without justification; and,

c) Regularly engaging in behaviour that has the effect of undermining the other parent’s authority or influence and alienating the child from that parent (A.B. v. M.G.C., 2022 ONSC 7207, at para. 184).

Assessing the credibility of family violence allegations presents significant challenges.  Justice Chappel described those challenges in M.A.B. v. M.G.C., 2022 ONSC 7207, at paras. 179 and 180:

179      The social context considerations around family violence are such that the typical indicators of credibility in the litigation arena are unhelpful in some situations and may in fact lead to distorted and dangerous outcomes. For example, one traditional yardstick for assessing credibility is whether the witness can provide a clear, detailed and consistent version of the events in question, with a solid recollection of the chronology of those events. However, victims of family violence often suffer from significant trauma associated with the abuse, which may affect their ability to provide a detailed, consistent and accurate recollection and timeline of the events in question (K.K. v. M.M., 2021 ONSC 3795 (S.C.J.); aff’d 2022 ONCA 72 (C.A.)). In addition, as the Supreme Court of Canada emphasized in Barendregt, “family violence often takes place behind closed doors, and may lack corroborating evidence” (at para. 144; see also V.M.W. v. J.Mc.-M., at para. 167, per Zisman J.; W.A.C. v. C.V.F., 2022 ONSC 2539 (S.C.J.), at para. 396, per Finlayson J.). Furthermore, there may not be evidence of prior consistent disclosures of family violence to rebut claims of recent fabrication, as there are many reasons why victims of family violence may not disclose the violence (V.M.W. v. J.Mc.-M, at para. 167; W.A.C. v. C.V.F., at para. 396).

180      Notwithstanding these challenges in assessing the credibility of family violence claims, and the need for caution in relying on traditional credibility indicators, courts must remain cognizant of the reality that some allegations are in fact fabricated or exaggerated. Being closed-minded to these possibilities poses an equally serious threat to the achievement of justice in cases where family violence claims are advanced, and the courts must therefore meticulously assess the evidence in its totality to ensure that family violence claims are credible and are not being maliciously advanced to obtain a litigation advantage.

These challenges are multiplied when the court is required to assess the veracity of family violence allegations in the context of interim motions based on untested written evidence in the form of affidavits, the content of which – let’s be frank – is often extensively reviewed and tailored by counsel to meet the needs of the case.

          Piaskoski v. Piaskoski, 2024 ONSC 5474 (CanLII) at 23-26

“As a matter of law, the mother’s consent is not necessary for the children to be vaccinated if they so choose.

Section 4 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, (HCCA) does not provide any minimum age for capacity to make medical treatment decisions. It provides:

Capacity

4 (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Presumption of capacity

(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.

Exception

(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be.

Toronto Public Health, citing the HCCA, takes the position that youth age 12-17 do not require their parent or legal guardian’s consent to receive the COVID-19 vaccine if the health care provider administering the vaccine is satisfied that the young person is capable of understanding information about the vaccine, why it is being recommended and what will happen if they accept of refuse the vaccine.

This is consistent with the position taken by the Ontario Ministry of Health. The Ministry of Health’s COVID-19 Vaccine Youth (Age 12-17) Consent Form does not require a parent or legal guardian’s signature or consent (although this option is provided). The Ontario Ministry of Health website states:

COVID-19 vaccines are only provided if informed consent is received from the person to be vaccinated, including those aged 12 to 17, and as long as you have the capacity to make this decision. … Even if you are able to provide informed consent, it would be a good idea to talk about this decision with your parent/guardian or an adult you trust such as your principal or a teacher.

The Court does not, of course, simply defer to the government’s interpretation of the HCCA.

That said, I agree with this interpretation. While medical decision making is an incident of parental custody, if the minor is a “mature minor” and capable of providing informed consent under s. 4 of the HCCA, decisions regarding medical treatment may be made by the minor. As indicated, the question is whether the health are provider administering the vaccine is satisfied that the young person is capable of understanding information about the vaccine.

In Gegus v. Bilodeau, 2020 ONSC 2242, Fowler Byrne J. considered the impact of the HCCA on the parents’ custodial right to consent to medical treatment. She stated, at paras. 48 – 51:

The HCCA requires the consent of a patient to any treatment. There are no age restrictions set forth in the Act. The sole determining factor is whether the party receiving the treatment consents to it…

Accordingly, if the health practitioner believes the child has the capacity to consent to his treatment, they will abide by the child’s wishes. If, on the other hand, the health practitioner determines the child is not capable of consenting, s. 20 [of the HCCA] outlines who may give consent on behalf of the child…

Accordingly, it appears that the HCCA contemplates situations in which only one parent, by court order or separation agreement, has the authority to give consent on behalf of a child when the child is determined to be incapable. The determination of whether only one parent should have this authority is determined under the appropriate legislation, in this case, the Children’s Law Reform Act.

This view of a “mature minor’s” capacity to consent to medical treatment is also consistent with the common law in this area. In A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, Abella J.’s majority decision explained the common law “mature minor” doctrine, at para. 47:

The latitude accorded to adults at common law to decide their own medical treatment had historically narrowed dramatically when applied to children.  However the common law has more recently abandoned the assumption that all minors lack decisional capacity and replaced it with a general recognition that children are entitled to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding. This is known as the common law “mature minor” doctrine… The doctrine addresses the concern that young people should not automatically be deprived of the right to make decisions affecting their medical treatment.  It provides instead that the right to make those decisions varies in accordance with the young person’s level of maturity, with the degree to which maturity is scrutinized intensifying in accordance with the severity of the potential consequences of the treatment or of its refusal.

While the Ontario legislation does not use the words “mature minor”, s. 4 of the HCCA effectively incorporates certain aspects of this doctrine into the scheme of the Act. The Supreme Court’s decision in A.C. contains a thorough discussion of this doctrine, and the complexity of its application in particular cases.”

            A.C. v. L.L., 2021 ONSC 6530 (CanLII) at 34-42