Resolving parenting disputes can be difficult. However, the complexity multiplies when parenting conflicts to be resolved involve transgender and gender nonconforming (GNC) children. Family matters revolving around child access and parenting are always dealt with by upholding the best interests of the children. The question that generally arises in Trans and GNC children cases are whether medical intervention or transition to a child’s body would be aligned with the child’s views and preferences.
In such cases, two parents are often at a conflict as to whether they should permit their children to medically transition or not. Again, the question here is whether supporting the gender nonconformity of Trans and GNC children is in the “best interests of the child”. One of the major concerns in allowing medical transitions is that parents and courts typically think that it is the element of harm in transition procedures, specifically in the irreversible medical treatments.
The Canadian family law framework deals with cases involving children in accordance with the “best interests of the child” test by stipulating down a non-exhaustive list of factors including the child’s views and preferences under section 16(3) of the Divorce Act. The Child, Youth and Family Services Act, 2017 makes it abundantly clear that gender identity and gender expression are essential facets in determining parenting conflicts.
Similarly, capable minors are likewise permitted to make decisions regarding medical treatments under certain circumstances. In Starson v Swayze, the Supreme Court of Canada defined “capacity” as the ability of a minor to reasonably understand the risks and consequences of the decision related to the medical transition. As per section 17(2) of the Infants Act, it is implied that when a child consents and the medical transition is in the best interests of the child, then the medical treatment can proceed even if objections are raised by the parents.
The Weight Of Child’s Wishes And Preferences In Proceeding With The Medical Procedures
In AB v CD and EF, the court ruled that a minor child has exclusive authority when a child is capable of consenting to treatment and the treatment likewise supplements the welfare of the child. Having said that, section 41(f) of the Family Law Act promotes parental responsibility to give or withdraw consent concerning the medical care of the child.
However, this responsibility is subject to section 17(2) of the Infants Act which stipulates that the child’s consent is a sufficient basis for the administration of the medical treatment and the health care provider likewise proves that the treatment is in the best interests of the child.
It would not be wrong to say that the judicial approach in AB not only respected the child’s wish to undergo a medical transition but also signaled the significance of the role of medical care providers in terms of understanding the child’s competency and the best interests of the child standard respecting GNC procedures.
Contact The Lawyers At Ayaz Mehdi Professional Corporation!
Oftentimes, it becomes a three-way fight when both the parents and the child hold different views on the GNC procedures. It is always a safe choice to engage the services of a family lawyer before commencing any step related to childcare and parenting responsibility. If you have any queries, get in touch with our family lawyers.
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