IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
N.K. v. A.H., |
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2016 BCSC 744 |
Date: 20160426
Docket: E1547395
Registry: Prince George
Between:
N.K.
Claimant
And
A.H.
Respondent
Before: The Honourable Mr. Justice Skolrood
Reasons for Judgment
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The Claimant, N.K.: |
In Person |
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Counsel for the Respondent: |
J.M. Duncan |
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Counsel for the Un-named Respondent: |
b.j. findlay Q.C. |
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Place and Date of Trial/Hearing: |
Prince George, B.C. April 12 and 13, 2016 |
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Place and Date of Judgment: |
Prince George, B.C. April 26, 2016 |
[1] There are two applications before the court to appoint independent counsel for an 11 year-old-child, whose parents are the named parties in this litigation. One application is brought on behalf of the child directly and the other by the respondent, A.H., who is the child’s mother. The claimant N.K. is the child’s father and he opposes the applications.
[2] The issue of separate or independent representation for the child arises in the context of a dispute between the parties about the proper course of treatment for the child, who has been diagnosed with gender dysphoria, a condition in which an individual experiences significant distress with the gender they were assigned at birth.
[3] Here, the child was assigned the female gender at birth but has begun the process of transitioning to the male gender. One aspect of the transition is the administration of a drug, Lupron, which delays the onset and progression of puberty. A.H. supports this course of treatment whereas N.K.’s view is that the child has not been adequately and independently assessed so as to permit a proper determination of whether this treatment is in the child’s best interest.
[4] As noted above, the child was assigned the female gender at birth and was given the name P.K. As part of the transition to the male gender, the child has adopted the name J.K. and, out of respect for the child, I will use the name J.K. when referring to the child in these Reasons. I will also use the male pronoun.
[5] I do not propose to review the background in detail as the focus of the present applications is quite narrow and the facts will be canvassed at length when the substance of N.K.’s application is dealt with. I will however provide a brief overview of the history leading to the current proceeding.
[6] The parties were married for the first time on October 22, 1999. They separated in March 2006 and were divorced on June 27, 2008, following a trial in this Court.
[7] J.K. was born on August 11, 2004.
[8] During the time that they were married, the parties lived together for only a short period of time as A.H. was working out of the province. After separation, A.H. spent a number of years in New Zealand pursuing her specialty medical training. J.K. lived with her for that period of time.
[9] The parties subsequently reconciled and were remarried on January 6, 2011. Following the second marriage, A.H. returned to New Zealand to complete her training. She remained there until February 2012. J.K. however returned to B.C. in April 2011 and lived with N.K. in Forest Grove.
[10] A second child P.S.K. was born on April 15, 2012. In September 2012, A.H. moved with the children to Vernon, B.C. for work purposes. N.K. remained behind in Forest Grove and visited A.H. and the children periodically. A.H. and the children moved to Prince George in September 2013.
[11] The parties separated again in October 2013 and were divorced pursuant to a consent order dated January 23, 2015 (the “January 2015 order”).
[12] The January 2015 order also addressed issues of guardianship and parenting time and included the following provisions:
1. The parties are joint guardians of the children and shall exercise joint parental responsibilities;
2. The children shall reside primarily with A.H.;
3. Pursuant to s. 41 of the Family Law Act, S.B.C. 2011, c. 25 [FLA], the parties shall share parenting responsibilities for the children and the party who is exercising parenting time shall make day to day decisions concerning the children while they are in that party’s care;
4. Pursuant to s. 40(2) of the FLA, the parties shall consult with each other prior to exercising any other parenting responsibilities unless consultation would be unreasonable or inappropriate in the circumstances; and
5. In case of disagreement over a major decision relating to the children, the parties are at liberty to apply to the court.
[13] According to A.H., J.K. has displayed masculine tendencies from an early age. She deposes that in September 2015, she took J.K. shopping to purchase some sport tank tops and sports bras as J.K. was beginning to develop breasts. She says that when asked to try on the clothes, J.K. became distraught.
[14] A.H. then took J.K. to see a family physician which in turn led to referrals to a number of physicians with experience in the area of transgendered and non-gender conforming individuals, including Dr. Wong, a psychologist, and Dr. Metzger, an endocrinologist. It was Dr. Metzger who recommended that J.K. start receiving Lupron, which is administered by injection on a monthly basis. At the time A.H. filed her application on March 3, 2016, J.K. had received two injections.
[15] This of course is a very abbreviated description of the assessment process undertaken by the various professionals that led to the recommended course of treatment for J.K.
[16] In February 2016, J.K. made the transition from P.K. to J.K. at school and by all accounts, that transition has gone well.
[17] What has not gone well is the relationship between the parties, particularly in respect of J.K. A.H. has been supportive of J.K. and has helped guide him through the appointments with the various physicians and the commencement of the Lupron treatment. A.H. says that she has kept N.K. informed throughout but that N.K. has been angry and resistant to J.K.’s stated wishes. In contrast, N.K. believes that steps have been taken without his consent and again he is concerned that J.K. has not been properly assessed.
[18] This issue has placed additional strain on an already fractured relationship.
[19] N.K. filed a notice of application on February 10, 2016 in which he sought a number of orders, the following of which are particularly relevant to the present applications:
1. An order that A.H. cease providing or administering any medication or substance that may halt [P.K.’s] puberty including Lupron;
2. An order that A.H. cease encouraging, allowing or assisting [P.K.] to interview with transgender advocates, including doctors, lawyers or any other persons advocating transgenderism;
3. An order that neither party shall subject the child to any counselling, therapy or doctor appointments regarding gender unless both parties agree in writing or by way of court order; and
4. An order that barbara findlay cease acting on behalf of [P.K.] as [P.K.’s] lawyer or having any contact with [P.K.].
[20] The notice of application also sought orders appointing Dr. Geoffrey Carr as [P.K.’s] psychologist and directing that the parties follow any treatment recommendations made by Dr. Carr.
[21] My use of the initials P.K. above reflects the fact that N.K.’s notice of application uses the name assigned to J.K. at birth.
[22] N.K.’s application came on for hearing before Mr. Justice Masuhara on February 26, 2016 who issued a number of procedural directions as well as certain interim orders. Unfortunately, Mr. Justice Masuhara’s order has not yet been entered, although counsel for A.H. provided me with a draft that he says accurately reflects what was ordered.
[23] Mr. Justice Masuhara directed that N.K.’s application be adjourned pending the hearing of A.H.’s application to appoint counsel for J.K. While the terms of the draft order are somewhat unclear on this point, it is apparent that Mr. Justice Masuhara intended that any similar application brought by J.K. be heard at the same time as A.H.’s application, and before N.K.’s application.
[24] Mr. Justice Masuhara also made a number of orders governing the parties’ conduct pending a final resolution, as follows:
1. N.K. is not to discuss the litigation in or around P.S.K.;
2. N.K. shall refer to J.K. by the name J.K. and use male or gender-neutral pronouns when referring to J.K.;
3. N.K. shall have parenting time with J.K. once a week for two hours on either Saturday or Sunday with the location to be mutually agreed to by the parties; and
4. For any change in medical treatment in respect of J.K.’s gender transition, including any additional treatment or alteration of the current treatment, reasonable notice is to be given to N.K. in advance so as to permit N.K. to seek further directions or orders from the court.
[25] A.H. filed her notice of application on March 3, 2016 in which she seeks the following orders:
1. An order appointing barbara findlay to represent J.K.;
2. Alternatively, an order that a litigation guardian be appointed for J.K.;
3. An order varying the January 23, 2015 order to grant A.H. sole guardianship and sole authority to exercise parental responsibilities for J.K.; and
4. Alternatively, an order varying the January 23, 2015 order to grant A.H. sole parental responsibility for all issues affecting J.K.’s medical, social and legal treatment of J.K.’s gender identity;
[26] The notice of application brought on behalf of J.K. was filed on March 8, 2016. It seeks a number of orders relating to the treatment of J.K. in response to the relief sought by N.K. in his application. It also seeks the following orders with respect to J.K.’s involvement in the proceeding and representation of J.K.:
1. An order the J.K. be added as a party to the proceeding;
2. An order pursuant to s. 201(2)(b) of the FLA that J.K. be permitted to respond to N.K.’s application, and participate in any future proceedings concerning J.K.’s gender identity, through his counsel of choice; and
3. Alternatively, that a litigation guardian be appointed for J.K. pursuant to s. 201(2)(a) of the FLA to represent J.K.’s interests in this and any future proceedings concerning J.K.’s gender identity.
[27] During the course of her submissions, Ms. findlay withdrew the application under s. 201(2)(a) for the appointment of a litigation guardian for reasons that I will return to below.
[28] Section 201 of the FLA deals with the legal capacity of children with respect to the conduct of proceedings under that statute:
201 (1) A child has the capacity to make, conduct or defend a proceeding under this Act without a litigation guardian if the child is
(2) Nothing in subsection (1) prevents a court, if the court considers it appropriate, from
(a) appointing a litigation guardian for a child described in subsection (1), or
(b) allowing a child who is not described in subsection (1) to make, conduct or defend a proceeding under this Act without a litigation guardian.
[29] Section 201 must be read in conjunction with Rule 20-2 of the Supreme Court Family Rules:
(1) A minor may act without a litigation guardian in a family law case in the following circumstances:
(a) in a family law case brought under the Family Law Act, if section 201 of that Act applies;
(b) in any other family law case, if the minor has attained the age of 16 years.
Rule 20-3 does not apply in certain circumstances
(1.1) Rule 20-3 does not apply to a minor who may, under subrule (1) of this rule, act without a litigation guardian in a family law case.
Appointment of litigation guardian
(2) Without limiting section 201 of the Family Law Act and despite subrule (1), if the court considers that it is in the interest of a minor referred to in subrule (1) or of any child of the minor, it may, whether or not on the application of a party, appoint a litigation guardian for the minor or for the child of the minor.
[30] Section 203 of the FLA deals more explicitly with the appointment of a lawyer to represent the interests of children in a proceeding under the FLA:
203 (1) The court may at any time appoint a lawyer to represent the interests of a child in a proceeding under this Act if the court is satisfied that
(a) the degree of conflict between the parties is so severe that it significantly impairs the capacity of the parties to act in the best interests of the child, and
(b) it is necessary to protect the best interests of the child.
(2) If the court appoints a lawyer under this section, the court may allocate among the parties, or require one party alone to pay, the lawyer's fees and disbursements.
[31] As this case involves the capacity of a child to consent to medical treatment, s. 17 of the Infants Act, R.S.B.C. 1996, c. 223 is also relevant:
Consent of infant to medical treatment
"health care" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health related purpose, and includes a course of health care;
"health care provider" includes a person licensed, certified or registered in British Columbia to provide health care.
(2) Subject to subsection (3), an infant may consent to health care whether or not that health care would, in the absence of consent, constitute a trespass to the infant's person, and if an infant provides that consent, the consent is effective and it is not necessary to obtain a consent to the health care from the infant's parent or guardian.
(3) A request for or consent, agreement or acquiescence to health care by an infant does not constitute consent to the health care for the purposes of subsection (2) unless the health care provider providing the health care
(a) has explained to the infant and has been satisfied that the infant understands the nature and consequences and the reasonably foreseeable benefits and risks of the health care, and
(b) has made reasonable efforts to determine and has concluded that the health care is in the infant's best interests.
[32] Ms. findlay, on behalf of J.K., submits that this proceeding is in effect a claim against J.K. since N.K. is seeking to halt J.K.’s treatment. It is for this reason that she brings her application under s. 201 of the FLA, rather than s. 203. According to Ms. findlay, it is essential that J.K. be able to participate directly in the proceeding and have a say in determining his future.
[33] As noted above, Ms. findlay initially sought an order in the alternative that a litigation guardian be appointed for J.K. however she has withdrawn that aspect of her application. She points out that under s. 201(2)(a) of the FLA, a litigation guardian may be appointed for a child described in s. 201(1), being a child who is 16 years of age or older, a spouse or a parent. As J.K. is none of these, s. 201(2)(a) has no application.
[34] Ms. findlay submits that the proper approach is to make an order under s. 201(2)(b) allowing J.K. to defend this proceeding and then a further order adding J.K. as a party. J.K. will then be entitled, as are all litigants, to his counsel of choice.
[35] Lastly, Ms. findlay submits that she is already acting for J.K. and that she has satisfied herself, through a direct interview of J.K., that J.K. has the capacity to instruct her and to participate in a meaningful way in the proceeding. She submits that J.K. has demonstrated the capacity to consent to medical treatment, as reflected in the ongoing administration of Lupron, and that capacity translates into a similar capacity to instruct counsel. She submits that in order for N.K. to unseat her as J.K.’s lawyer, N.K. would have to satisfy the test for an interlocutory injunction which he cannot do.
[36] As noted, A.H. has brought her own application seeking similar relief. It is her position that J.K. should be made a party to the litigation, with Ms. findlay as counsel, because it should not be up to her or N.K. to direct J.K. in making this fundamental life decision. She points to the fact that in child protection matters under the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, children 12 years of age and older are entitled to notice of proceedings and may participate as parties. She draws an analogy between those types of proceedings and the current one and notes that J.K. is almost 12. As J.K.’s mother, she is confident in J.K.’s ability to participate in the proceeding and to instruct counsel.
[37] N.K. takes the position that Ms. findlay was retained without his consent, in breach of the January 2015 order. In his view, J.K. is being directed by a group of transgender activists, including Ms. findlay, and that there needs to be an independent assessment of J.K. He also submits that there should be a report prepared pursuant to s. 211 of the FLA to assess both J.K. and the parties.
[38] Much of what N.K. had to say in his submissions goes more to the merits of his application. For example, he expressed significant concern about the use of Lupron, which he describes as a very dangerous drug. I note as well that despite Mr. Justice Masuhara’s order referred to above, N.K. consistently referred to J.K. as P.K. and used the female pronoun.
[39] I am satisfied that J.K. should be permitted to participate directly in this proceeding. To my mind, this case is different from the many family law cases that come before the courts in which the views of the child are sought on issues relating to guardianship and parenting time, and where those views are typically presented through third party reports.
[40] I agree with Ms. findlay’s characterization that this case is really about J.K. and his role in determining his own future. In my view, these issues cannot be properly considered without J.K.’s direct participation, nor would it be fair to J.K. for the court to attempt to do so.
[41] The real issue is the manner in which that participation will occur. In considering this issue, I acknowledge Ms. findlay’s observation about s. 201(2)(a) of the FLA and the fact that, on its face, it appears to contemplate the appointment of a litigation guardian for children over the age of 16, but not under.
[42] However, that section does not in my view leave the court unable to appoint a litigation guardian for children under the age of 16 if the circumstances so warrant. That authority can be found in the court’s inherent jurisdiction to control its own process or in its parens patriae jurisdiction to act in the best interests of children. It is also expressly spelled out in Rule 20-2.
[43] I also do not accept the argument that because Ms. findlay is already acting for J.K., the burden falls to N.K. to establish that she should be displaced. While there is no doubt that A.H. and/or J.K. could retain Ms. findlay, or any other lawyer, to advise J.K. about his rights, such a retainer does not then automatically result in a right of participation in this proceeding, either for J.K. or for Ms. findlay. As the relevant provisions of the FLA and the Supreme Court Family Rules make clear, it is for the court to determine the manner in which a child will be permitted to participate in a proceeding.
[44] The overriding consideration in making that determination is the best interests of the child. Madam Justice Martinson provided a useful overview of the possible approaches in Dormer v. Thomas (1999), 65 B.C.L.R. (3d) 290, albeit she was dealing with the former Family Relations Act, R.S.B.C. 1996, c. 128:
[43] How can the court meet its statutory obligation to determine the best interests of the children? Much has been written about how children can be represented in cases like this. For a useful summary and discussion see: Alfred A. Mamo "Child Representation" in (Child Custody Law and Practice), Chapter 4, supra.
[44] Three models are frequently referred to in the literature and cases dealing with legal representation for children: the amicus curiae, the litigation guardian and the child advocate.
[45] An amicus curiae (friend of the court) is viewed as a neutral officer of the court whose role is to facilitate an informed judicial decision in custody and access proceedings and who ensures that all relevant evidence is before the court.
[46] A litigation guardian is appointed to protect the interests of the child and must decide what is in the best interests of the child and submit an informed opinion of those interests to the court. The opinion of the guardian need not be the same as the wishes of the child.
[47] A child advocate is in fact an advocate on behalf of the child. This is the more traditional role that lawyers play. The advocate must present and attempt to advance the child's wishes.
[48] There has been a debate about which "model" is best for children. A variety of approaches have been taken by the courts. By way of example only, the Ontario Court of Appeal in (Strobridge v. Strobridge) (1992), 42 R.F.L. “(3d) 154 (Ont. Gen. Div.)”, interpreted the role of the Children's Lawyer in that province, and concluded that the role is that of a child advocate.
[49] The legislature in British Columbia has adopted an approach that is not the same as any of the three models, but is closest to the litigation guardian model. The Family Relations Act allows the Attorney General to appoint a lawyer to be a family advocate (s. 2(1)). That lawyer "may intervene at any stage in the proceeding to act as counsel for the interests and welfare of the child." (s. 2(2))
[50] It will be noted that the family advocate is not appointed by the court but by the Attorney General. Funding is made available for this purpose. The family advocate may or may not intervene in the proceedings. Nor is the family advocate a child advocate of the kind envisioned by the Ontario Court of Appeal in Strobridge. Southin J., as she then was, held that the children are not the family advocate's clients in Gareau v. Superintendant of Family & Child Services for British Columbia (1986), 1986 CanLII 1046 (BC SC), 2 B.C.L.R. (2d) 268 “(B.C.S.C.)” at 271:
Are the children his clients? I think not. He is appointed to act as counsel for their interests and welfare, but nothing in the Act warrants the conclusion that he is to take instruction from them even if they are of an age of sufficient maturity to give instructions ...
[51] Southin J. also pointed out (at p. 271) that once a family advocate is appointed, it is the advocate alone, and not the Attorney General, who decides the course to follow.
[52] In British Columbia a judge of the Supreme Court could appoint an amicus curiae, a litigation guardian, or a child advocate, based on the court's parens patriae jurisdiction. This is an inherent jurisdiction to act in the best interests of children. The recommendation to appoint a family advocate is a fourth option.
[53] I am not convinced that it is appropriate to decide, in a vacuum, that one model is better for children than another. Rather, the circumstances of each case should dictate which approach will best meet the ends of justice for the children in question. Factors such as the age and maturity of a child and the child's capacity to instruct counsel, will have a bearing on which approach is best. It may be that in some cases the role of counsel will have to be a fluid one, one that changes as the case proceeds.
[45] As I understand it, the office of the family advocate no longer exists in B.C. and has been replaced by the Representative for Family and Youth. That office has no role to play in this case.
[46] Thus, as I see it, the options are to either permit Ms. findlay to act directly for J.K. or to require the appointment of a litigation guardian. As indicated by Madam Justice Martinson, factors such as the age and maturity of the child will inform the determination of the preferred approach.
[47] Here, I accept Ms. findlay’s advice to the court that she has interviewed J.K. and has satisfied herself that J.K. has the capacity to properly instruct her. There is also evidence from J.K., in affidavit form, that Ms. findlay explains things well to him and that he trusts her.
[48] That said, J.K. is only 11 years old and I have been referred to no cases in which a child of that age has been granted independent party status in litigation without a litigation guardian.
[49] Further, while the issue concerning J.K. is focussed on his rights and determining his future, that issue nonetheless arises in the context of a broader, ongoing dispute between J.K.’s parents and I am concerned about the impact on J.K. of placing him squarely in the middle of that dispute.
[50] For this reason, I have come to the conclusion that it is in J.K.’s best interest that he participate in the proceeding through a litigation guardian. That guardian can guide J.K. through the process and help him formulate the views that he would like to put before the court. The guardian can also deal with the parties on matters relating to the litigation and provide J.K. with something of a buffer from the acrimony existing between his parents.
[51] Pursuant to Rule 20-3(4), a litigation guardian must act through a lawyer and it may well be that the guardian will choose to retain Ms. findlay, given her experience and the fact that she already has J.K.’s trust and confidence. However, by involving a litigation guardian, it may help to address N.K.’s concern that J.K. is not getting objective advice.
[52] In terms of the choice of litigation guardian, under the terms of the January 2015 order, this qualifies as a matter on which the parties are required to consult. However, given the history of what has gone on to date and the fact that A.H. has demonstrated a better ability to act in J.K.’s best interests, if the parties cannot agree on a suitable litigation guardian, A.H. shall have final authority to make the decision.
[53] In summary, a litigation guardian will be appointed for J.K. and, upon that appointment, J.K. may be added as a party to this proceeding through the guardian.
[54] A.H. also seeks, as an interim order, a variation of the January 2015 order to grant her sole decision-making authority in respect of medical, social, gender, education and legal matters affecting J.K.
[55] I am not prepared to make that order at this time. Given that the focus of the hearing before me was on the issue of representation for J.K., the facts relevant to the issue of guardianship were not fully canvassed and N.K. did not address the issue. In any event, under the status quo, J.K. is receiving treatment and that status quo will continue pending determination of N.K.’s application.
[56] Costs of these applications will be in the cause.
“Skolrood J.”