“Under the Children’s Law Reform Act and the Divorce Act, the child’s views and preferences are only one factor among many in determining the child’s best interests. Consequently, a child’s refusal to attend counselling is not necessarily determinative of their best interests.
Having said that, A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 (CanLII), [2009] 2 S.C.R. 181 at paras. 81 and 82 highlighted the potential tension between a child’s growing autonomy and the child’s “best interests” norm:
[81] The general purpose of the “best interests” standard is to provide courts with a focus and perspective through which to act on behalf of those who are vulnerable. In contrast, competent adults are assumed to be “the best arbiter[s] of [their] own moral destiny”, and so are entitled to independently assess and determine their own best interests, regardless of whether others would agree when evaluating the choice from an objective standpoint.
[82] The application of an objective “best interests” standard to infants and very young children is uncontroversial. Mature adolescents, on the other hand, have strong claims to autonomy, but these claims exist in tension with a protective duty on the part of the state that is also justified [citations omitted].
As a result, the majority in A.C. stated that the best interests standard “must be interpreted in a way that reflects and addresses an adolescent’s evolving capacities for autonomous decision-making”: at para. 88.
Under this interpretation of the best interests standard, a minor’s wishes will have greater weight as their maturity increases. In some cases, the court “will inevitably be so convinced of a child’s maturity that the principles of welfare and autonomy will collapse altogether and the child’s wishes will become the controlling factor”: A.C., at para. 87. Scrutiny of a child’s maturity will intensify in relation to the severity of potential consequences of medical treatment or its refusal: A.C. at paras. 95. This is partly because it is inherently difficult to assess an adolescent’s ability to make medical decisions: A.C., at paras. 70-79.
The majority in A.C. listed questions to assist courts in assessing maturity:
What is the nature, purpose and utility of the recommended medical treatment? What are the risks and benefits?
Does the adolescent demonstrate the intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences?
Is there reason to believe that the adolescent’s views are stable and a true reflection of his or her core values and beliefs?
What is the potential impact of the adolescent’s lifestyle, family relationships and broader social affiliations on his or her ability to exercise independent judgment?
Are there any existing emotional or psychiatric vulnerabilities?
Does the adolescent’s illness or condition have an impact on his or her decision-making ability?
Is there any relevant information from adults who know the adolescent, like teachers or doctors?: at para. 96
While A.C. was decided in relation to Manitoba’s child welfare legislation and its application of the best interests test, the above principles are still relevant for interpreting the best interests standard under the federal Divorce Act and Ontario’s Children Law Reform Act.
Taking this together, the HCCA [Health Care Consent Act] does not limit the courts’ jurisdiction to make therapeutic orders in the child’s best interests. A court must always consider a child’s view and preferences, but a child’s refusal to participate in a therapeutic intervention will not necessarily determine whether a court can make such an order. Rather, a court must assess the child’s maturity and weigh their wishes accordingly, in relation to the various factors listed in section 24(2) of the Children’s Law Reform Act.
There are of course risks in making therapeutic orders. The child may refuse to comply. A health care practitioner may consider that the child is capable and that he or she cannot override the child’s refusal. The attempts at therapeutic intervention may fail. Courts cannot fix every problem.
That said, time and time again, experienced family court judges have emphasized the value of access to a broad variety of remedial measures. Again, in Leelaratna, the trial judge observed, “there are often no legal solutions to family problems. Therapeutic orders can be very effective tools to help the family move forward, reduce the parental conflict, and help children transition though the emotional turmoil of their parents’ litigation in a healthier way”: at para. 52, see also Fiorito, where a reversal of custody and therapy was ordered to remedy a father’s estrangement from his children. Judges deciding custody cases should be enabled to create or support the conditions which are most conducive to the flourishing of the child.”