H.M.W. v. M.S.J., 2022 BCPC 326

Citation: H.M.W. v. M.S.J. 2022 BCPC 326 Date: 20220831 File No: F12979 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: H.M.W. APPLICANT AND: M.S.J. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. ORMISTON Counsel for the Applicant: A. Florescu Counsel for the Respondent: S. Oberoi Place of Hearing: Chilliwack , B.C. Dates of Hearing: May 26, 30, 2022 Date of Judgment: August 31, 2022

[ 1 ] The parties to this application are the natural parents of the child D.J. born September 2, 2013. This is M.S.J.’s application for an order granting him sole parental responsibilities over medical decisions related to the child. The respondent, H.M.W., seeks an order setting out a process for the parents to collaborate on making such decisions. Background [ 2 ] The parties have been in high conflict since their separation in 2014, particularly when it comes to D.J. To their enormous credit, they came to a comprehensive Consent Order that resolves nearly everything related to their separation.

However, they are at an impasse on this one issue about health-related decision making. At the heart of their disagreement is how D.J. should be treated for Attention Deficit Hyperactivity Disorder (“ADHD”). [ 3 ] According to the Consent Order, D.J.’s parenting time is shared between his parents and alternates weekly. M.S.J. provides daily medication to D.J. for ADHD. There is no question that this medication was prescribed to D.J. by a paediatrician named Dr. Singer (“the paediatrician”). H.M.W. does not give this medication to D.J. during her parenting time.

At trial, H.M.W. testified that she accepts D.J. has been diagnosed with ADHD; however, she believes that his ADHD medication is detrimental and that the prescribing paediatrician did not have a proper foundation on which to recommend such treatment. Both parties acknowledge that administering the medication during alternating weeks is not in D.J.’s best interests. Issues and the Law [ 4 ] The disagreement between the parents must be resolved by a court order dictating how parental responsibilities should be allocated.

The legal question to be answered is what arrangement for health-related decision making will be in D.J.’s best interests? [ 5 ] I pause to note, it is not the role of this Court to make medical decisions for D.J. The task of the Court is to determine who should make the decisions relating to this part of D.J.’s life. In this case there is no issue that those responsibilities should rest with one or both of the parents. The question of whether and how these decisions should be shared between the parents depends entirely on what is in D.J.’s best interests.

The medical decisions the parents have made leading up to this application are relevant in deciding what is in D.J.’s best interests going forward. [ 6 ] All of the factors a court must consider in deciding what is in the best interests of a child are set out in s.37 of the Family Law Act and those factors will guide this decision. Factual Foundation [ 7 ] I can make the following findings of fact based on the unchallenged medical file, D.J.’s psychological assessment, transcripts of past court appearances, and viva voce evidence led at trial. 1. D.J. has been diagnosed with ADHD by medical professionals. 2.

Prior to a formal diagnosis, a physician recommended treating D.J.’s suspected ADHD with vitamin supplements in April 2020. In September 2020, the paediatrician prescribed medication to treat D.J.’s ADHD. I can and do infer from this prescription that the paediatrician was of the view that D.J. requires medical treatment for ADHD. The medical file also contains a letter from the paediatrician stating this explicitly. 3. It is clear from the medical file that both the paediatrician and the family doctor endorse the use of medication as part of D.J.’s treatment.

The medical file also shows that both the family doctor and the paediatrician attempted unsuccessfully to allay H.M.W.’s concerns about treating D.J.’s ADHD with medication. 4. M.S.J. is in favour of D.J. taking ADHD medication based on the advice of the paediatrician, and improvements he has observed in D.J.’s behaviour at home and at school. M.S.J. is the one who arranged for D.J. to see a physician and the paediatrician about ADHD, and he did so without advising H.M.W. in advance. M.S.J., and his wife Mrs. J, have spoken to the paediatrician about D.J.’s behaviour.

M.S.J. consulted with the paediatrician about the pros and cons of treating ADHD with medication before deciding to administer the medication to D.J. It is confirmed in the medical file that this consultation was between the paediatrician and M.S.J. – not Mrs. J. 5. In the course of treatment, the paediatrician also received information about D.J.’s behaviour from his school. The medical file shows the paediatrician was aware of information from the school reporting that D.J. has overall better focus, attention and behaviour when on the medication compared to when he is not. 6.

H.M.W. believes the negative effects of the medication outweigh any potential benefits. She also believes D.J.’s struggles are emotional and potentially environmental. H.M.W. believes medication should be a last resort and that D.J. will thrive with counselling and proper attention to his diet. H.M.W. did not provide any input to the paediatrician before the medication was initially prescribed. However, it is clear from the medical file that both the paediatrician and the physician spoke to H.M.W. about her concerns around medication in due course. 7. H.M.W. says she accepts that D.J. has ADHD.

The record before the court reflects that H.M.W. has held a strong principled opposition to D.J. taking ADHD medication. Despite H.M.W.’s brief agreement to administer medication to D.J. as prescribed, H.M.W.’s position at the pretrial conference and her evidence at trial demonstrate the extent of her resistance to this form of treatment. 8. The family doctor at the clinic where D.J. has been treated since birth and the paediatrician to whom D.J. was referred have now discharged D.J. as a patient.

It is clear from the medical file and the admissible portions of the family doctor’s letter that conflict around medical decision making in this family played a role in the doctors terminating their relationship with D.J. 9. While the Consent Order that is now in place shows that the parties have been able to come to some agreement, they have been in a state of high conflict. Communication has broken down and the Consent Order itself is tailored to fit the fact that the parties have

struggled to maintain a respectful or cooperative relationship post-separation. [ 8 ] Two areas of conflicting evidence need to be resolved in order to decide this case. First is the difference in the parties’ evidence about D.J.’s ADHD symptoms and the effects of the medication. The second is whether or not the paediatrician made an informed decision when he decided to prescribe D.J. medication for ADHD. [ 9 ] M.S.J. testified that he was initially prompted to seek medical advice about D.J.’s behaviour due to aggressive non-compliant and concerning conduct at home and at school.

M.S.J. says that since taking the medication prescribed by the paediatrician, D.J.’s behaviour has improved. There is a compelling consistency between M.S.J.’s evidence about D.J.’s behaviour at home and the behaviour flagged in the psychological assessment which incorporates reporting directly by those who observe D.J. at school.

The data from the school is not limited to the weeks that D.J. is in the care of any one parent, and it too corroborates M.S.J.’s evidence that D.J. has struggled with aggression in the school environment. [ 10 ] On the other hand, H.M.W. has not observed problematic behaviour when D.J. is in her home and accordingly, she suspects his triggers are environmental. She notes that he has witnessed trauma in his young life and that his behavioural issues are related to managing his emotions.

While H.M.W. does not explicitly deny that D.J. has had behavioural issues at school, she points out that his Report Card shows solid academic performance and she refutes the doctors’ characterization of D.J.’s behaviour as “violent”. H.M.W. says the ADHD medication made D.J. act like a “zombie” and that it changed his personality in a negative way. [ 11 ] H.M.W. denies that medication has led to any improvement in D.J.’s issues at school.

She testified that she does not believe his more recent success should be attributed to medication since he has never demonstrated behavioural issues in her home and has improved at school despite only taking his medication during alternating weeks. [ 12 ] Particularly given the harmony between M.S.J.’s evidence and the information in the psychological assessment, I prefer the evidence of M.S.J. on these issues.

I find on a balance of probabilities that D.J. has demonstrated problematic behaviours both at school and home and that this has improved since he has been taking medication. [ 13 ] H.M.W. suggests I should be cautious with M.S.J.’s evidence because of some of his conduct in making medical decisions about D.J. I am mindful in weighing M.S.J.’s evidence that at times he failed to communicate respectfully and fully with H.M.W. about D.J.’s healthcare. Without condoning M.S.J.’s course of action, I can say that the reasons he gave for his conduct are internally consistent – that is, his story makes sense.

M.S.J. knows H.M.W. to be temperamental and oppositional with him. When confronted about her conduct towards D.J.’s doctors, H.M.W. acknowledged that she can become quite assertive when she is advocating for her son’s best interests. There were reliable examples led at trial of H.M.W.’s anger or frustration prevailing when she is in conflict with M.S.J.

M.S.J. says he tried to reduce conflict by reducing contact with her, even though this meant undertaking medical-decision making without first informing H.M.W. [ 14 ] The totality of the evidence shows that M.S.J. has not excluded H.M.W. entirely from information relevant to D.J.’s healthcare; however, he did arrange for multiple professionals to assess D.J.’s ADHD without H.M.W.’s knowledge or consent. These were significant decisions. M.S.J. says he took these steps because he feared H.M.W. would intervene and thwart his efforts to get D.J. help.

M.S.J.’s conduct must be considered in the context of the strong position H.M.W. has taken in the past against medication as a treatment and even with respect to D.J.’s ADHD diagnosis. While M.S.J.’s decision to take matters secretly into his own hands was ill-advised, I do accept that he believed he was trying to advance D.J.’s best interests based on the behavioural issues exhibited both at home and at school. [ 15 ] When I consider the reliability and credibility of H.M.W.’s evidence, I must find it is compromised by notable inconsistencies.

For example, H.M.W. denies that she is closed to the idea of medicating D.J. for ADHD. This is in stark contrast to her comments made at an interim appearance in September 2021 when she stated: “I don’t feel the need to medicate my son, I won’t do it.” H.M.W. repeatedly said at this previous court appearance that she is not going to medicate her child. She explained her belief at that time that D.J.’s “ADHD tendencies” flow from emotional turmoil and stress.

These comments are more consistent with her actions than her testimony at trial. [ 16 ] At another appearance in March of 2022, H.M.W. asserts: “I will not be administering medication that changes a personality when he is doing fine in school.” H.M.W. claims at this trial that it was Dr. Patrick’s thorough psychological assessment that changed her mind about D.J.’s ADHD diagnosis; however, that report was prepared in August of 2021, well before both court appearances.

The psychological assessment also makes clear that D.J. is not “doing fine” in school. [ 17 ] At trial, H.M.W. has honed her position on D.J.’s performance at school by asserting that D.J. does not have issues with academic performance. However, the psychological assessment notes that while D.J.’s cognitive abilities are comparable to his peers, he has deficits that are associated with ADHD.

The assessment also notes “significant” behavioural challenges and ties these directly to his academic success in saying: “. . . he has significant behavioural and emotional challenges that will soon interfere with his success at school and in life.” The writer of the assessment recommends an individual education program for D.J. to assist his learning going forward. [ 18 ] H.M.W.’s position on this issue of D.J.’s performance at school appears to stem from the fact that the medical file shows that when the J.s consulted with doctors about how to treat D.J.’s ADHD, they raised concerns about D.J.’s academic performance.

H.M.W. characterizes this as misleading information given D.J.’s positive report card. H.M.W. testified that the family doctor was also operating on the erroneous understanding that D.J. was “violent” and “failing in school”. [ 19 ] There is no evidence from the family doctor or paediatrician clarifying the extent to which these factors may have impacted the decision to prescribe medication for D.J. However, describing D.J.’s conduct at school as “violent” is not inconsistent with the reliable and unchallenged evidence in the psychological assessment.

It is also consistent with H.M.W.’s own evidence that when D.J. is dysregulated he is “hands-on.” The psychological assessment further establishes that D.J. is not succeeding in the school environment despite his mostly average cognitive abilities. It also clearly raises concerns about D.J.’s ability to perform academically in the absence of proper treatment.

[ 20 ] H.M.W.’s evidence is also internally inconsistent about why she does not accept the current treatment regime. Other than her somewhat vague observations of negative side effects to the medication, H.M.W. focused on the injustice of the J.s making decisions about D.J. without her input. She suggested at the pre-trial conferences that it was Mr. and Mrs. J. who believe D.J. has ADHD, not medical professionals. This is clearly not the case. H.M.W.’s current proposal is that she and M.S.J. cooperate in finding and consulting with a different doctor about D.J.’s ADHD.

This kind of collaboration is strongly encouraged by all medical practitioners who have assessed or treated D.J.’s ADHD. However, the medical file shows that H.M.W. did speak with D.J.’s family doctor and his paediatrician about treatment for ADHD. [ 21 ] The medical file shows that two medical professionals have attempted to assuage H.M.W.’s concerns about administering the medication to D.J. In light of these consultations between D.J.’s doctors and H.M.W., it is entirely unclear why she remains hesitant or dissatisfied with the chosen course of treatment.

It also remains unclear what a different medical professional could do in order to facilitate a collaborative decision between the parties. H.M.W. takes the position that D.J.’s family doctor and paediatrician were dismissive of her concerns, however, there is no evidence to support this conclusion. In fact, the doctors’ notes suggest they were attempting to be responsive to her concerns. [ 22 ] H.M.W.’s characterization of her consultations with D.J.’s family doctor and paediatrician are externally inconsistent with the medical file.

H.M.W. maintains that her intent was to advocate for her son’s best interests and that she asked the doctors questions about their decisions. That does not accord with the doctors’ description of her conduct in the medical file. [ 23 ] In the medical file the family doctor describes H.M.W. in their last appointment on April 20, 2022 as becoming “quite upset” by how he proposed to provide her with documents that she wanted for court. He notes: “This led to a series of quite strongly worded statements and aggressive rhetorical questions.

The entire interaction was quite uncomfortable.” [ 24 ] The medical file also contains the family doctor’s notes about a conversation with the paediatrician on December 9, 2021 regarding his reasons for ending the patient-doctor relationship with D.J. The file notes the following

summary of the paediatrician’s concerns: [The paediatrician] has had issues with family in the past. Specifically the biological mother has caused enough disruption at his clinic to the point where he was considering talking with the police. With this in mind, he does not think he can [be] properly involved in a helpful manner with this case. […] Unfortunately this child having multiple environments that vary quite differently will not be in his best interest and I tended to agree with this assessment by the paediatrician.

He has suggested that the parents consider going through legal avenues to clarify one medical decision maker instead of two. [ 25 ] In part of a subsequent letter from May 2022 that has been marked as an exhibit, the family doctor says: “Recently, I have also had to end the relationship with the patient and mother for similar reasons.” H.M.W.’s assertion that she did not stray beyond challenging the doctors with difficult questions and a different view about the medication is inconsistent with the degree of disruption and aggression described in the clinic notes. [ 26 ] The cumulative impact of the inconsistencies in H.M.W.’s evidence lead me to doubt the reliability of her testimony about D.J.’s ADHD symptoms and his response to medication.

M.S.J. and H.M.W. focused at trial on each other’s imperfections and it is fair to say that there have been imperfections on both sides. However, for the reasons outlined above, I find M.S.J. gave reliable credible testimony about D.J.’s ADHD. [ 27 ] I also find that the paediatrician made an informed decision to prescribe medication to treat D.J.’s ADHD. The paediatrician received information from Mr. and Mrs. J and also from the school. The paediatrician’s diagnosis is also consistent with the psychological assessment, which includes independent and direct input from D.J.’s school as well as from H.M.W.

On the basis of the consistencies reviewed above, I find the information provided by the Js to the doctors to be reliable. [ 28 ] It is clear that the paediatrician was alive to the fact that D.J. lives in two homes. Assessing the efficacy of the medication using information from the school means that the paediatrician made a decision based on D.J.’s behaviour during H.M.W.’s parenting time as well. In addition, H.M.W. had an opportunity to speak with D.J.’s doctors and there is no indication that her input changed their professional opinions.

Section 37 Analysis: [ 29 ] In applying s.37 of the Family Law Act to the best interests test in this case, I have come to the following conclusions. Health and Emotional Well-being of the Child [ 30 ] I find M.S.J. has established that a paediatrician made an informed decision to prescribe medication to D.J. Nevertheless, H.M.W. submits that the medication does not foster the health or emotional well-being of the child.

There is no persuasive or reliable evidence that supports H.M.W.’s position that the doctors have not fully considered her views. [ 31 ] H.M.W. elected not to call any further evidence from these or other medical experts. As such, I cannot say whether a medical professional would come to a different opinion about medicating D.J. if H.M.W.’s evidence about the impact of the medication was accepted and taken into account. What is apparent from the documents that have been tendered at this trial, is that after speaking to H.M.W. about D.J.’s treatment, both physicians discharged D.J. as a patient.

There is no evidence before me to suggest that either physician was moved in their beliefs about optimal treatment after speaking with H.M.W. about her concerns. [ 32 ] In my view, the health and well-being of D.J. is best served by a parental decision maker who is willing and able to work with his healthcare providers.

The Child’s Views [ 33 ] D.J.’s views generally about how health-related responsibilities should be allocated are not before the court. On the specific issue of ADHD medication, the medical file shows that he told the paediatrician that the medication makes him “able to listen better and is in less trouble at school.” Despite H.M.W.’s concerns about the medication, she has not indicated any resistance by D.J. about taking the prescribed medication, although she says that he likely feels pressure from his father to comply with his direction.

The Relationships in the Child’s Life [ 34 ] It is clear that D.J. has strong and bonded relationships with both parents. Mrs. J has also been involved in his care in a significant way for several years. History of the Child’s Care [ 35 ] The Consent Order now in place, as well as the status quo leading up to this hearing, has had D.J. sharing parenting time with both parents.

D.J.’s general health appears to be robust and thriving; however, he has some specialized need for care arising from behavioural issues at school and the diagnoses identified in the psychological assessment. [ 36 ] The degree of conflict between the parents has not served D.J. well. The history of D.J.’s medical care is marked by disagreements between his parents about counsellors, follow-up care from car accidents, timing of routine appointments, his difficulties at school and diagnosis/treatment for ADHD.

It is fair to say that for D.J.’s entire life, the parents have not been able to find a sustained and viable way to resolve these differences. As a result, D.J. has visited different counsellors and different doctors depending on which parent arranged the appointments. Both parents have at times failed to share important information to the other parent about D.J.’s health and medical needs. The Child’s Need for Stability [ 37 ] D.J. is an eight-year-old boy who requires stability by virtue of his age as well as some of his specific struggles.

The psychological assessment strongly recommends the parents work to find common ground in order to support D.J. I take from this recommendation that D.J.’s need for stability is heightened by the conflict between his parents. [ 38 ] The most relevant example of his parents’ inability to cooperate is their disagreement about treatment for ADHD, which has resulted in him taking daily prescribed medication only on alternating weeks. Their conflict over medical-decision making cannot be in D.J.’s best interests and has created increased instability in his medical care.

Two physicians noted concerns about conflicting medical decision makers in this family. [ 39 ] I find based on the medical file and the evidence of the parties, that conflict between the parents played a role in D.J. being discharged as a patient by two physicians in charge of his care. Both doctors appear to have found themselves unable to meet D.J.’s needs without clear or consistent parental decision making. Ability to exercise parental responsibilities [ 40 ] In short, both parents have demonstrated limitations in their ability to exercise parental responsibilities when it comes to D.J.’s medical care.

In common to both parents is a failure to openly communicate about D.J.’s health and their decisions about his care. However, I will consider the ability of each parent in turn. H.M.W. [ 41 ] D.J.’s behavioural issues at school and his psychological diagnoses are significant factors in his life that will require immediate and important parental decision making. I have concerns about H.M.W.’s ability to understand and address both of these issues. [ 42 ] First, I find that H.M.W. has not demonstrated a commitment to assisting D.J. with ADHD.

She purports to believe that proper diet and counselling will give him the support he needs. She has relied on no professional opinion in arriving at that conclusion. The tenor of her evidence is that D.J. does not struggle with symptoms while in her home and that if M.S.J. acted differently, D.J. would not struggle in his home either. Based on her own evidence, I cannot find that H.M.W. has been responsive to D.J.’s needs. She did not describe any changes in his diet to ameliorate ADHD symptoms; she says she has always fed him a healthy diet and blames M.S.J. for not doing the same.

While H.M.W. did take D.J. to a counsellor, this followed a domestic assault on H.M.W. that was witnessed by D.J.. H.M.W. did not seek out someone who would specifically assist D.J. in coping with ADHD. [ 43 ] Even more troubling is H.M.W.’s resistance to the idea that D.J.’s struggles at school may be improved with the prescribed treatment for ADHD. Her position that D.J.’s performance at school is academically sound may be consistent with his report card; however, it is completely at odds with the overall body of information before the court.

The record is clear that D.J. faces serious challenges in the school environment. H.M.W.’s attempt to distinguish her son’s academic performance from his behavioural issues shows that she has not accepted or understood the way in which these two aspects of D.J.’s life are connected. [ 44 ] H.M.W. did not present any alternative ideas about how to assist D.J. at school. Instead, H.M.W. focused on blaming Mr. and especially Mrs. J, asserting that they misled this paediatrician by raising concerns about D.J.’s school performance.

However, the evidence before me supports the finding that D.J. has had significant problems at school and the psychological assessment concludes that those problems will affect D.J.’s academic performance. [ 45 ] H.M.W. believes D.J. will thrive if he continues with counselling and if M.S.J. agrees to work collaboratively with her in consultation with a different doctor than the paediatrician who was already engaged with D.J.’s care.

H.M.W. holds out the psychological assessment as authority to support her position that D.J. does not necessarily need medication to treat his ADHD, because it recommends that the parents work together with medical professionals. I do not share her

interpretation of the assessment.

[ 46 ] The assessment states (pg.20): Both parents are encouraged to speak with the paediatrician regarding D.J.’s medication. They may wish to ask questions in order to alleviate any concerns they may have regarding potential side effects, explore other pharmaceutical options, and/or review his current dosage. [Emphasis added.] [ 47 ] Notably, in my view, the writer of the report is not suggesting the parents should discuss whether or not to medicate D.J.. Rather, the assessment encourages a more harmonious relationship between the parents when it comes to D.J.’s medication regime.

This report does not give a clear opinion about the administration of medication, however, in my view, the evidence from the medical file does. H.M.W.’s attempts to undermine the doctors’ decisions with her

interpretation of the psychological assessment shows the extent to which she resists medication as a form of treatment for D.J.. [ 48 ] The second factor I have considered when it comes to H.M.W.’s ability to meet D.J.’s medical needs is her conduct towards his treating physicians. I find that H.M.W.’s conduct towards two medical doctors led to D.J. being left in a compromised healthcare situation. He has been abandoned by the family doctor who treated him for years and by a specialist doctor who has now declined the referral made to him by the family doctor.

This has disrupted his continuity of care with a long-time family physician and has left him with no doctor to prescribe refills of the medication he is currently taking. [ 49 ] H.M.W. suggests that the medical file is ambiguous about whether her poor conduct was the reason D.J. was discharged by his doctors. In my view, there is no lack of clarity when one reads the medical file in conjunction with the portion of the family doctor’s letter admitted as an exhibit. H.M.W.’s aggressive and disruptive conduct may not have been the only reason the doctors discharged D.J., but it clearly played a substantial role.

For example, in specifying the “issues” the paediatrician has had with the family, he identifies H.M.W.’s disruptions at his clinic. [ 50 ] The family doctor says in the May 2022 letter that he has “recently” had to end the relationship with “the patient and mother” for similar reasons. I respectfully disagree with counsel’s submission that there is ambiguity about which part of the family doctor’s concerns are “similar” to the paediatrician’s concerns. The family doctor does not say he must end the relationship with the family, but only with the child and his mother.

Furthermore, at H.M.W.’s last appointment with the family doctor the month prior, she is noted to be “aggressive” and making the doctor “entirely uncomfortable.” This is consistent with the paediatrician’s concerns. [ 51 ] H.M.W. testified that she is naturally passionate about issues related to D.J.’s health. She asserts that she was unfairly left out of the decision making around D.J.’s ADHD treatment and that in the consultations with these doctors, her voice was not being heard. I do not accept H.M.W.’s characterization of her interactions with the doctors.

Even though the doctors were not called to testify, the medical documents admitted at this trial paint a different picture. [ 52 ] I find that H.M.W. was not acting in D.J.’s best interests in the way she addressed her concerns with these doctors. While the reasons for her conduct are not as relevant in this analysis, I do not accept H.M.W.’s assertion that she was motivated by a concern about D.J.’s health. Aggressive conduct towards a child’s physician does nothing to advance a child’s healthcare needs.

H.M.W. did not give a detailed account of her interactions with either doctor, but she says she did not think she was being rude to them. This is a concerning indication that H.M.W. lacks insight about her conduct. It is far more likely based on the totality of evidence led in this trial that H.M.W. was overwhelmed during these appointments by her anger towards the doctors, and towards M.S.J.. [ 53 ] The result of H.M.W.’s actions was a direct, immediate and foreseeable consequence for D.J.. These are powerful examples of H.M.W.’s inability to exercise parental responsibilities related to D.J.’s medical care.

I have considered that this conduct occurred in the context of a difficult relationship with M.S.J., where co-parenting had broken down and M.S.J. was avoiding direct communication with H.M.W.. However, these two separate examples of how H.M.W. handled her frustration demonstrates that her ability to act in D.J.’s best interests have been compromised by her conflict with M.S.J.. [ 54 ] These incidents with D.J.’s physicians on their own raise serious concerns about H.M.W.’s ability to act in her child’s best interests. However, there is further evidence showing these were not isolated incidents.

I accept that H.M.W. misled M.S.J. about a serious assault on her that occurred in D.J.’s presence. H.M.W. does not dispute this evidence and I have considered her explanations for it. H.M.W.’s evidence reveals that she does not appreciate how the way she misled M.S.J. would impact D.J.. In particular, because the text message evidence shows that H.M.W. left M.S.J. with the impression that D.J. had lied to him about an assault that had in fact occurred. [ 55 ] I have also considered that D.J. was involved in a motor vehicle accident with H.M.W. and that H.M.W. did not take him promptly to be assessed by a doctor.

The collision occurred on the highway, airbags were deployed and significant damage was caused to the car. I do not accept H.M.W.’s evidence that she was planning to wait to see if symptoms of an injury developed before taking D.J. to see a doctor. It simply does not make sense that H.M.W. planned all along to take D.J. to a doctor even if he showed no signs of injury. Her evidence on this issue was deeply inconsistent. She claimed that she took D.J. to see her doctor (Dr. Cchina) instead of D.J.’s family doctor because she was able to get an earlier appointment.

This explanation is inconsistent with her testimony that there was no reason to rush D.J. in for a medical assessment. [ 56 ] H.M.W.’s evidence about booking an appointment with Dr. Cchina is also inconsistent with the fact that M.S.J. was able to secure an appointment with D.J.’s family doctor before the appointment with Dr. Cchina. Finally, H.M.W.’s evidence in court about why she did not take advantage of the earlier appointment is inconsistent with emails exchanged between the parties.

H.M.W. said in court that it was her birthday on the day of the family doctor appointment arranged by M.S.J. and it was during her parenting time. In the emails she said that it was because of her work schedule. [ 57 ] In light of these inconsistencies, I do not accept any of H.M.W.’s evidence about her intentions to take D.J. to a doctor after the motor vehicle accident. What is clear from the communication between the parties in the exhibits filed is that H.M.W. objected to the type of treatment M.S.J. attempted to secure for D.J. once he became aware of possible injuries. While H.M.W. emphasizes that when

she did take D.J. to the doctor, he did not recommend any follow-up treatment, including from a chiropractor, the medical file also shows that when H.M.W. attended that appointment, she reported that D.J. was not showing any signs of injury. [ 58 ] Particularly in the context of a dysfunctional relationship with M.S.J., I can see why H.M.W. may not have been eager to disclose to him how D.J. was involved in the domestic violence or car accident while in her care. Nevertheless, the cumulative effect of H.M.W.’s actions leaves this Court with serious concerns about her ability to prioritize D.J.’s healthcare needs.

M.S.J. [ 59 ] In considering M.S.J.’s ability to make medical decisions related to D.J., I have considered that he too has failed to communicate with H.M.W. about matters important to D.J.’s health. M.S.J. unilaterally decided to consult with a paediatrician about D.J.’s ADHD. However, that said, he did not obstruct or mislead the paediatrician about H.M.W.’s involvement in the child’s life. It is not disputed that the paediatrician reached out to H.M.W. in an attempt to solicit her opinions. [ 60 ] M.S.J. took D.J. to see a counsellor without H.M.W.’s knowledge or consent.

H.M.W. says this was not in D.J.’s best interests because he had already forged a relationship with a different counsellor she had secured – Ms. Merrick. M.S.J. explains that his priority was having D.J. see a counsellor with some expertise in children with ADHD. He also testified that he believed H.M.W. would hijack interventions that he believed would help D.J..

M.S.J.’s concerns are consistent with H.M.W.’s earlier resistance to the ADHD diagnosis, as well as with H.M.W.’s behaviour towards D.J.’s physicians once she did become aware of M.S.J.’s efforts to treat D.J.’s ADHD. [ 61 ] H.M.W. also led evidence that D.J. was involved in a car accident during parenting time with M.S.J. in 2019 as revealed in the medical file. When testifying about her own car accident with D.J., H.M.W. testified that M.S.J. did not do her the same “courtesy” of informing her about it.

In considering M.S.J.’s evidence about this incident, I find his account that there was no damage to the vehicle is inconsistent with the medical file which states that there was only “minor damage to the car.” Nevertheless, the overall description in the medical file accords with M.S.J.’s description of a minor accident. [ 62 ] The critical difference between D.J.’s two car accidents is that unlike the collision when D.J. was in H.M.W.’s care, the Js took D.J. for a medical assessment by a doctor on the same day as the collision. The medical notes reveal that there were no issues for D.J. arising from the MVA.

I agree that this is another example of the parties not sharing information about D.J.’s healthcare where they should have; however, with the key difference being that M.S.J. had the benefit of a medical doctor assuring him that D.J. was not injured. H.M.W. did not. She says she intended to keep D.J. under observation herself, albeit without medical supervision or direction. However, this plan to self-monitor for symptoms of injury is difficult to reconcile with H.M.W.’s decision to not disclose the accident and the possibility of injury to M.S.J..

M.S.J. shared parenting time with D.J. and would presumably need to know what to look for in the event injury developed as H.M.W. suspected it may. [ 63 ] On the basis of these examples, H.M.W. submits that M.S.J. has also failed to make sound decisions about D.J.’s healthcare. H.M.W. also submits that M.S.J. has deferred medical responsibilities for D.J. to his wife and that M.S.J. does not play an active role in D.J.’s care. Based on the evidence I heard, these concerns about Mrs. J’s involvement are unfounded. [ 64 ] Mrs.

J has provided information to D.J.’s paediatrician and family doctor, particularly as it was relevant to his ADHD. However, this makes sense given the family structure and Mrs. J’s direct contact with D.J.’s teachers and his interactions at home with his siblings. There is no suggestion that Mrs. J is the one ultimately making D.J.’s medical decisions, rather, she has acted as a conduit for information to get to the doctors where appropriate. Notably, the lengthy conversation with the paediatrician about whether to treat D.J.’s ADHD with medication was between M.S.J. and the doctor.

Family Violence [ 65 ] Violence is part of this family’s history. M.S.J. was placed on a s.810 peace bond as a result of incidents during their relationship, although there is insufficient information about this history of family violence before me to analyze how it may impact the parties’ ability to share parental responsibilities. More recently, H.M.W. has come under investigation for criminal allegations of violence towards Mrs. J during a confrontation that was recorded on video and played during this trial. It is clear that animus between Mrs.

J and H.M.W. has been an obstacle to the flow of information between D.J.’s caregivers. This is problematic given D.J.’s specific healthcare needs, especially those outlined in the psychological assessment. Despite issues around family violence, the parties have agreed to a Consent Order with shared parenting time and parental responsibilities for everything other than medical decisions. Appropriateness of an Arrangement Requiring Cooperation [ 66 ] The psychological assessment urges D.J.’s parents to put aside their differences in order to support their son’s needs.

The new comprehensive Consent Order is a step in a more promising direction for them; however, there are unfortunate indications that cooperation between the parents about medical decision making will not be forthcoming. Their animus, lack of trust and lack of communication was palpable at trial. While a cooperative relationship between the parents would undoubtedly be ideal for D.J., I find that ordering a collaborative approach to medical decisions will increase risk to D.J.’s safety, security and well-being. Should the parents be able to move forward on reconciling their differences, perhaps this will change.

However, at this time in his life, D.J.’s need for decisive medical and other therapeutic interventions is elevated, for reasons I have already discussed. [ 67 ] In my view, given the history of the parties and their positions at trial, it is unlikely they are going to achieve the kind of prompt and sustained consensus that would mitigate ongoing risks to D.J.’s well-being. Conclusions: [ 68 ] Ideally, there should be a fluid and open communication between parents about their child’s health, particularly in a situation where parenting time is equally shared.

I am mindful that each parent has strong reasons for not being able to respectfully communicate with the other; however, these reasons do not necessarily determine what kind of allocation of parental responsibilities will be in D.J.’s

best interests. [ 69 ] I find that M.S.J. has established he is the guardian better able to exercise parental responsibilities regarding D.J.’s medical care. H.M.W.’s proposals about how medical decision making could be shared are somewhat responsive to the fact that the parents have struggled in the past to achieve consensus. However, for the reasons outlined above, anticipating timely cooperation on these medical decisions is not realistic. I also find it would be likely to delay important and urgent decision making unnecessarily. One paediatrician has already assessed and prescribed medication to D.J..

H.M.W. has not presented reliable evidence to suggest a different practitioner would arrive at a different conclusion. [ 70 ] When I review all of the evidence relevant to D.J.’s best interests and medical care, I find the fundamental difference between the parents is that M.S.J.’s shortcomings did not result in D.J. being deprived of medical advice or treatment. H.M.W.’s complaints about M.S.J.’s conduct involve instances where he is relying on the advice of professionals, albeit sometimes without H.M.W.’s knowledge or agreement.

I do find that M.S.J. has taken active steps to distance himself from communicating with H.M.W. directly. While this undoubtedly complicates shared parenting time and parental responsibilities, M.S.J.’s attempts to buffer his contact with H.M.W. makes sense in light of the level of conflict between them. [ 71 ] In contrast, H.M.W.’s decisions have on more than one occasion caused D.J. to be either temporarily or permanently deprived of medical or therapeutic care. I have found frailties in H.M.W.’s ability to appreciate and act on D.J.’s need for psychological care.

Furthermore, I have found H.M.W.’s involvement in the treatment of D.J.’s ADHD has actively prejudiced his care by playing a role in why they discharged him as their patient.

Regardless of whether or not they had prescribed the best course of treatment for D.J., H.M.W.’s conduct towards the doctors was clearly not in D.J.’s best interests. [ 72 ] Having considered all the factors in the Family Law Act , I find that D.J.’s best interests will be served by having one parent act as a decision maker, and I find that M.S.J. is the parent in the best position to do so. [ 73 ] In light of the struggles between the parties, this order must be detailed and very specific about the scope of each parent’s responsibilities, including M.S.J.’s obligation to inform H.M.W. about D.J.’s medical needs, appointments and treatment. [ 74 ] For clarity, since M.S.J. will have sole decision-making powers about D.J.’s medical care, this means that he will decide whether or not D.J. will take medication to treat his ADHD.

Given H.M.W.’s strong position about this issue, I feel compelled to be very clear about the consequences if H.M.W. does not cooperate with any decisions M.S.J. makes about D.J.’s medication. [ 75 ] I have concluded that having M.S.J. make decisions about D.J.’s medication is in D.J.’s best interests. If H.M.W. acts contrary to M.S.J.’s decisions, she risks this Court finding that she is not acting in D.J.’s best interests. If this occurred, it would be a reasonable remedy to change the parenting-time

schedule so that D.J. is in M.S.J.’s care more often to make sure that his medication is taken as prescribed. M.S.J. seeks an order requiring H.M.W. to consent to the school administering medication to D.J.. Since M.S.J. will have sole decision making power over D.J.’s medical care, H.M.W.’s consent is not required in order for the school to administer the medication, if that is what M.S.J. decides to do. [ 76 ] These reasons will be in the court file for the benefit of any judges reviewing any future applications related to this issue. [ 77 ] I will make the following Order: [ 78 ] Pursuant to ss. 40(3) and 41(

f) of the Family Law Act , M.S.J. is allocated all responsibility for giving, refusing, or withdrawing consent to medical, dental and other health-related treatments for D.J.. This includes but is not limited to the fact that M.S.J. will have sole decision-making power over medications that D.J. takes, including whether or not he will take medication to treat ADHD. [ 79 ] M.S.J. must communicate to H.M.W. at the earliest reasonable opportunity all information related to D.J.’s health-related treatments.

This is not limited to but shall include: a. assessments and treatment related to ADHD; b. assessments and treatment related to behavioural issues that arise at school or at home; c. counselling, psychological or psychiatric assessments, treatments or consultations; d. dentistry; e. chiropractic or physiotherapy treatments; f. all consultations and treatment involving a medical doctor, paediatrician or other medical specialist. [ 80 ] H.M.W. and M.S.J. will provide each other with a phone number and email address that the other party will use to communicate about D.J.’s health. [ 81 ] If H.M.W. has information about D.J. that she believes is important for his healthcare, she will provide this information to M.S.J. via email or text and M.S.J. will decide whether to share this information with D.J.’s healthcare provider. [ 82 ] H.M.W. will not communicate with persons involved in D.J.’s physical and mental healthcare (including all practitioners listed above).

H.M.W. will not arrange or attend any of D.J.’s health-related appointments unless: (

i) D.J. has a medical emergency while in her care that requires him to be taken to a hospital for assessment/treatment. If emergency medical attention is required for D.J. during his parenting time with H.M.W., she will advise M.S.J. immediately at the phone number he will provide to her pursuant to this Order.

(ii) a healthcare practitioner advises M.S.J. that they want H.M.W.’s involvement.

In this case, H.M.W. will only communicate with D.J.’s healthcare provider when invited to do so directly by that healthcare practitioner. [ 83 ] If D.J. requires non-emergency healthcare during his parenting time with H.M.W., she will advise M.S.J. as soon as possible and M.S.J. will arrange the required appointment. [ 84 ] If M.S.J. schedules a non-emergency health-related appointment for D.J. during his parenting time with H.M.W., M.S.J. or a person that he delegates will take D.J. to and from any non-emergency health-related appointments. [ 85 ] M.S.J. is entitled to have D.J. attend any of these appointments with another adult that he delegates, such as Mrs.

J. _____________________________ The Honourable Judge A. Ormiston Provincial Court of British Columbia