S.D. v. J.H. Date:, 2015 BCPC 195

Citation: S.D. v. J.H. Date: 20150624 2015 BCPC 0195 File No: F16180 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.D. APPLICANT AND: J.H. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Appearing on their own behalf: The Applicant, S.D.

Appearing on their own behalf: The Respondent, J.H. Place of Hearing: Port Coquitlam , B.C. Date of Hearing: June 24, 2015 Date of Judgment: June 24, 2015 [ 1 ] THE COURT (ORALLY): When a mother's opinion regarding the treatment of a child's medical condition differs from the opinions of medical specialists, should she be permitted to override those medical specialist opinions and choose a pathway forward based on her own convictions, guided by anecdotal information gleaned from the Internet and other non-professional sources?

That is the question raised by this troubling motion. [ 2 ] The Notice of Motion filed on February 17, 2015 by J.H. raises the issue of a medical condition and proper medical management of that condition for six-year-old Child T. Child T's birth date is [d.o.b.]. It is common ground between J.H., the father, and Child T's mother, S.D., that Child T has been diagnosed with epilepsy.

Child T has a brother, Child A, born [d.o.b.] and under the current arrangement, S.D. is the primary caregiver for both children. [ 3 ] J.H. has parenting time with both Child T and Child A, but not according to a structured pattern but rather on the basis of a somewhat unavoidably unpredictable schedule, given that J.H. works as a trainman for CN Rail. By reason of his seniority and the nature of his work, he is on call essentially 24 hours a day, seven days a week.

J.H. takes an active and engaged interest and involvement in the care and upbringing of both Child A and Child T but necessarily the amount of time that he contributes to that process is vastly less than that contributed by S.D. [ 4 ] Nevertheless, out of a concern for Child T's well-being, given her diagnosis with the condition of epilepsy, J.H. has brought a motion asking the Court to make an interim order to deal with the question of how Child T's epileptic seizure disorder should best be managed.

J.H. and S.D. have very different perspectives on the approach that should be taken to managing Child T's condition. [ 5 ] I will start by summarizing the evidence of S.D., the primary caregiver for Child T. [ 6 ] S.D. acknowledges that Child T has a seizure disorder, that indeed she has epilepsy. The diagnosis of that condition came in June of 2014. By her own estimate -- and she readily acknowledges it is nothing more than an estimate -- over the course of Child T's life up to June of 2014, she had somewhere between 20 and 30 petit mal seizures.

Since the diagnosis in June 2014 up to the present, again by her own estimate, S.D. believes that Child T has had between 10 and 20 further petit mal seizures. [ 7 ] Child T's seizures tend to happen either mostly or exclusively when she is asleep. Accordingly, the possibility that there are still other seizures that are not included in these estimates cannot be ruled out. S.D. is quite confident that she is aware of most of Child T's seizures but she does not contend that it is impossible that a seizure could occur outside her knowledge (at a time when she herself is sleeping for example).

She thinks that that likelihood is a small one but she does not pretend that she can say with absolute certainty that she has been aware of every seizure that has ever occurred on Child T's part while Child T has been in her care. [ 8 ] J.H., operating obviously with less time in Child T's company than does S.D., estimates the frequency of Child T's seizures as being a good deal higher. [ 9 ] As I have noted, it was in June of 2014 that the medical investigation of Child T's condition yielded a diagnosis of an epileptic seizure disorder.

That diagnosis came as the result of a referral to a neurologist made by Child T's general practitioner, a Dr. Tehmina Wasti. [ 10 ] At the time of the first consultation with a neurologist, a Dr. Datta at B.C. Children's Hospital, the diagnosis was made and a recommendation was made by Dr. Datta that Child T begin taking medication to manage and control her seizure disorder. Some testing was done before that initial diagnosis and recommendations were made and some testing has been done since.

On the evidence I heard today, there have been at least two EEGs and one MRI. [ 11 ] Neither of the EEGs or the MRI has confirmed the presence of any discernible anomaly in Child T's brain but nevertheless Dr. Datta at the first consultation, equipped with the information she had then, recommended a course of medication for Child T to deal with the seizure disorder and to manage and control it as best it can be managed and controlled. [ 12 ] That recommendation was not followed by S.D. S.D. disagrees with the recommendation that Child T take medication to deal with her epileptic seizure disorder.

She does so on the basis of information that she has gleaned from her work as a care aide in a facility that serves children with autism and neurological disorders; on the basis of discussions she has had with parents of children suffering neurological disorders not unlike Child T's; and on the basis of her own research on the Internet.

S.D. has earned a 13-month diploma program certificate in Early Childhood Education from a local college but she possesses no medical training or other related credentials. [ 13 ] It was clear to me today on the evidence I heard that S.D.'s concern about and objection to medication being used to manage Child T's epileptic seizure disorder relates to the possible adverse effects of that medication, sometimes referred to as side-effects. [ 14 ] I have no doubt that in taking the actions she has taken to this point, S.D. was operating out of a concern for Child T's well- being.

S.D. believes that the downside risks associated with ingesting medications to control an epileptic seizure disorder -- those downside risks having to do with side effects -- outweigh the upside benefits of managing and properly controlling the condition, and it is for that reason that she has declined to follow the expert recommendations of Dr. Datta the neurologist. [ 15 ] In the course of that consultation and two other consultations with neurologists that I will refer to in a moment, information has

been imparted to S.D. and J.H. either directly or indirectly to the effect that the neurologists are aware that medications that are prescribed for treating epileptic seizure disorders carry a potential of having unwanted side-effects. [ 16 ] S.D. knows that the neurologists have a protocol, a mechanism, a treatment plan if you will, to introduce the medication slowly, together with proper monitoring, so that any adverse effects might be detected and steps might be taken to address them.

Perhaps most importantly, S.D. knows that in the opinions of the neurologists who have been involved in Child T's care to this point, Child T faces a risk that, untreated, her epileptic seizure disorder could bring about developmental delays, and in a worst case scenario could result in death.

These risks have not been characterized by the neurologists as very high probability risks, but they are risks that are present and that inform the neurologists' opinions regarding the necessity of treatment. [ 17 ] S.D. has heard those opinions, has been made aware of those risks, but using her own risk analysis and assessment, she considers the risks to be of a low enough probability not to warrant taking the greater risks that, in her mind, would attach to the use of medications to control the seizure disorder. [ 18 ] There have been three consultations with neurologists. The first one with Dr.

Datta I have spoken of. There was a follow-up consultation also with Dr. Datta. There was intervening testing done. [ 19 ] On the second neurological consultation, Dr. Datta -- with the benefit of whatever additional information had come into her hands at that point -- recommended a different medication. The same arguments were presented and the same recognition and acknowledgement of the risk of side effects was present in the analysis. However, Dr. Datta again recommended that Child T's epileptic seizure disorder be treated through medication, notwithstanding that risk.

On this second occasion, S.D. maintained her position, believing that the risks of taking medication to control the seizure disorder outweigh the benefits and declined a second time to act on the recommendations of the neurologist. [ 20 ] Then came the third and most recent consult. That, I understand, occurred very recently this month, perhaps yesterday. Is that right, [S.D.]? [ 21 ] S.D.: That is correct. [ 22 ] THE COURT: This time, Dr. Datta was not presiding at the consult because she is on maternity leave so another neurologist designated to step in to her shoes and assume responsibility for Dr.

Datta's patients, including Child T, was the one who was consulted. Other testing had ensued in between the time of the second consultation and this most recent consultation, including an MRI. [ 23 ] I pause to say again that the neurological team at B.C.

Children's Hospital, out of which these neurologists are all operating, have shown sufficient concern and taken a sufficient interest in Child T's neurological condition to have subjected her to no fewer than two EEGs and one MRI. [ 24 ] On the basis of the accumulated knowledge as of this most recent consultation, the neurologist then presiding (whose name is not recalled by either of the parties) recommended that Child T take medication to manage and control her seizure disorder for the same reasons that the recommendations were made on the previous two occasions, namely, that untreated her neurological condition could result in her experiencing developmental delays and there could be other adverse consequences to Child T, the worst of which would be death attributable to the neurological condition. [ 25 ] Again, as I have understood the evidence before me, these risks were not said to be particularly high, but they were said to be high enough to justify the treatment by use of medication, and they were said to be sufficiently high to justify the treatment by way of medication knowing that treatment by medication carries its own risks. [ 26 ] Somewhat surprisingly, on this third consultation, faced with the very same recommendation that has been made on two previous occasions -- the only difference being that the type of medication has changed over the course of accumulating knowledge through testing -- S.D. has declined a third time to proceed with the treatment in accordance with the neurological recommendations of the B.C.

Children's Hospital neurologist who is standing in for Dr. Datta. [ 27 ] S.D. has not seen Child T under the influence of the kinds of medications that are at issue here. Her concerns are not based on witnessing side-effects resulting from the use of these kinds of medications in this type of treatment regime. They are based on what she has learned through talking to people and looking at things on the Internet. [ 28 ] S.D. has not sought a second opinion from another neurologist in order to assess whether or not the opinions that have been expressed to this point by Dr.

Datta or her stand-in are questionable in some way. She has, however, taken some comfort -- and I put it no higher than that -- from comments she attributes to her general practitioner. According to S.D.'s sworn testimony, her family physician, Mr. Tehmina Wasti, the physician who made the original referral for a neurological assessment, has told her that Child T does not require any medication to manage her epileptic seizure disorder despite the fact that the specialists have offered contrary recommendations. [ 29 ] S.D. does not say that she is acting on Dr.

Wasti's advice in declining to follow the neurological recommendations because she is careful to point out she had her mind made up about this based on her own research and understanding of the problems beforehand. But she does make reference to this opinion that she ascribes to Dr. Wasti as I believe a source of some comfort that, to put it colloquially, she cannot be entirely wrong-headed in her view if her family physician shares it. [ 30 ] Then there is Dr. John Matsen, a naturopath in whom S.D. reposes some considerable confidence. He has been brought into the picture as of about January of 2015. Dr.

Matsen has set up a regime of treatments for Child T that aim to manage and control her epileptic condition through dietary manipulations (in particular the exclusion of yeast from her diet); the taking of certain substances that help to clear yeast from the body; and the administration of Vitamin D, something called horsetail probiotic and calcium and magnesium supplements.

[ 31 ] S.D. has told the Court in her sworn testimony today that, like Dr. Wasti, Dr. Matsen has also expressed the professional opinion that notwithstanding that the neurologists recommend that Child T take medication to control her seizure disorder, that medication in his mind is not necessary and that the treatments he is prescribing and arranging are sufficient to deal with Child T's health concerns. [ 32 ] I turn to a

summary of J.H.'s evidence. [ 33 ] All of this raises in the mind of Child T's father, J.H., grave concerns. It is for that reason that he has brought his Motion. He is not the primary caregiver. He lacks the level of hands-on engagement and involvement with Child T's day-to-day care to be able to exert the influence he would like to exert over this aspect of her care. [ 34 ] J.H. fears that, left untreated, Child T's epileptic seizure disorder may produce unwelcome, unwanted and permanent short-term and long-term adverse consequences for Child T.

He acknowledges that it may be that the risk is not a particularly high probability risk, but he points to the neurologists' knowledge in this area and their considered opinions, repeated three times, that however low the risks of long-term or short-term adverse effects may be, they can and should be managed by the use of medication. [ 35 ] J.H. points as well to the fact that the neurologists are alive to the fact that the medications come with their own risks, but that despite their knowledge of those risks the neurologists in their professional judgment still consider it in the best interests of Child T to be treated with seizure disorder controlling medication. [ 36 ] So J.H. brings his Motion asking the Court to impose an order today, an interim order, in the interest of ensuring that Child T's health is not compromised by the continuing refusal on the part of S.D. to yield to and abide by the recommendations of the specialist practitioners who repeatedly say Child T needs medication to manage her seizure disorder so that any risk of either near term or long- term adverse effects upon her can be reduced or eliminated. [ 37 ] That, I think, is a sufficient outline of the background circumstances as they have been revealed in the evidence that I heard today. [ 38 ] Now, under s. 37 of the Family Law Act , the Legislature has prescribed that every order that every judge makes in a family law proceeding is driven by the best interests of children.

My responsibility in considering the motion brought by J.H. and opposed by S.D. is to come to a conclusion that I believe will best serve the interests of Child T. [ 39 ] With all due respect to S.D. -- who was very passionate in her testimony and very sure in her own mind that she has chosen the right path -- I find myself unable to endorse the practice of repeatedly declining to accept and act on specialist medical advice regarding a young child's seizure disorder. [ 40 ] With all due respect to S.D. and the enquiries she has made and the time she has spent on the Internet and the discussions she has had with other people with some experience in these areas, S.D., I am bound to say, lacks the necessary expertise and training and specialized knowledge to be able to rationally choose to reject opinions and recommendations given by highly qualified neurological practitioners about what Child T's best interests medically require. [ 41 ] I repeat that I do not question S.D.'s motives, nor do I believe that she was being untruthful or anything of that nature when she said that she sincerely believes that the risks outweigh the benefits of treatment of a seizure disorder by medication.

I am sure she does hold those beliefs very sincerely, but she simply does not have the knowledge, the information, the education, the training or the experience to be able to hold an opinion in that specialized area that can be preferred to the opinions of two neurologists based on three consultations which resolutely come back to the same conclusion time and again, that being that Child T should be on medication so that whatever risks attach to the continued untreated state of her epilepsy can be reduced or eliminated. [ 42 ] Accordingly, in response to J.H.'s Motion, I am going to make some orders that displace S.D.'s judgment, displace her exercise of discretion, and compel her (and to the extent that he is involved in the process during his parenting time, compel J.H. as well) to comply strictly with the recommendations of those who are best qualified to determine what Child T's needs are with regard to her condition. [ 43 ] I cannot allow Child T's condition to continue to go untreated -- in the way that the specialists say repeatedly it must be treated - - through the exercise, by S.D., of well-meaning but ill-informed and misguided judgment and discretion.

I must gently but firmly push S.D.'s discretion and judgment out of the way and put in its place an order that she is bound by law to comply with because I believe that that order is essential to ensure that Child T's best interests are met. [ 44 ] So, to take it from a somewhat colloquial narrative -- which is what these reasons for judgment have sounded like up to this point -- I am now going to pronounce the formal orders that are going to govern going forward. [ 45 ] The orders in formal language that I will state momentarily are going to specify that there must be strict compliance with all of the neurologists' recommendations, the ones made most recently at the consult that happened this month -- I think it was yesterday -- which I understand are part of the treatment plan by which the medication is phased in with careful monitoring.

And, there must be strict compliance with any other recommendations that are made by the neurologist from time to time with respect to continuing care for Child T as a child with an epileptic disorder. [ 46 ] I am also going to be ordering -- and you will hear it in formal language in a moment -- that the naturopathic practitioner, Dr.

Matsen, deliver to the neurologist an outline of the treatments and dietary programs he has prescribed for Child T so that the neurologist knows what they are. [ 47 ] I am going to order that S.D. must take and follow any recommendations that the neurologist makes in relation to the food matters. If the neurologist has no problem with the continuation of this naturopathic regime, fine. If the neurologist says that needs to be modified in some way, then it will be S.D.'s duty, and J.H.'s to the extent that he has Child T in his care, to so modify the regime. If the

neurologist says stop it, cease it, cause it to terminate, then it will be the duty and obligation of S.D. and J.H. to do that. [ 48 ] The neurologist here is in the driver's seat.

We are dealing with a neurological condition and that part of the order is intended to make sure that nothing is happening through the intervention of some other non-conventional practitioner that is going to in any way compromise or complicate the program that the best qualified practitioner has in mind for Child T. [ 49 ] S.D., as I have acknowledged, has a sincere belief -- as yet unsupported by any expert evidence -- that there is a reason to prefer no treatment to some treatment having regard to the risks of side-effects.

S.D. accordingly must be free to come back before the Court and invite the Court to either vary the order I am making today or set it aside altogether, but she is going to have to bring with her some properly presented evidence from experts to back up her position. There may be a case to be made as to why Child T's best interests would be better served by not medicating her. S.D. has not come equipped to make that case today but the door is not closed to her to make that case.

However, she cannot come and try to make an application to vary or set aside the order I am making today without something substantial in the form of expert evidence to back her up. She is going to have to make that application on proper notice to J.H., and J.H. may well call upon the evidence of the neurologists and others so that the Court can consider their expert opinion evidence. The Court will then have a chance to look again at this whole matter with the assistance of a great deal more in the way of formal expert opinion than we have today. [ 50 ] So this is an interim order.

It is not final, but it does govern until such time as there is another order made to change it or set it aside.

The ball is in S.D.'s court to initiate a review of this order and to bring with her the expert evidence, if she can get it, to show or at least try to persuade the Court that with the benefit of more expert material before it the Court might come to different conclusions about what serves the long-term best interests of Child T. [ 51 ] Passing reference has been made from time to time to an involvement -- which was I gather brief and perhaps concluded provisionally -- of the Director of Child, Family and Community Services in the life of this child and in the question of what should and should not be done in terms of her medical care. [ 52 ] I have the power under Rule 20(5) (

b) of the Provincial Court (Family) Rules , B.C. Reg. 417/98 to add a party where I consider it necessary to have a party joined to a proceeding to ensure that a just and proper disposition of the issues can be achieved. The Director of Child, Family and Community Services is clothed with statutory powers to ensure that children are not put at risk or placed in harm's way. [ 53 ] The controversy between J.H. and S.D. relates to a child who has a medical condition about which the two parties find themselves in disagreement. This does, in my judgment, raise a protection concern.

The Director of Child, Family and Community Services will exercise its powers and discretion as it sees fit, but by joining the Director it as a party to these proceedings the Director will be a participant in them, will be informed about these proceedings, will involve itself in these proceedings as it considers necessary and thereby enhance and improve the likelihood that whatever orders the Court makes in the future will unfailingly serve the best interests of Child T (which as I said at the beginning and I say again is the Court's overarching priority). [ 54 ] I am going to seize myself of all future applications in this matter because it serves the interests of justice for parties not to be bouncing from one judge to another to another to another, having to start from square one, again and again. [ 55 ] I wish (before I state the formal terms of the order for the record) to address a point that really does not have anything to do with Child T's medical condition.

It was the other thing we were going to deal with today substantively but we ran out of time. The issue is non-removal of both children from the province. [ 56 ] I am going to make an order that neither party can remove either Child T or her brother Child A from the Province without an order of the Court authorizing that removal.

That is just a kind of holding-pattern type of order. [ 57 ] There will be an enquiry at a future hearing as to what orders, longer term, should be made about the parties crossing borders with the children, but for now while that is an unresolved issue, neither S.D. nor J.H. is going to be able to take Child A or Child T across the U.S. border or indeed remove them from British Columbia at all without an order of the Court.

If somebody has travel plans and they can secure the agreement of the other party, then you come before the Court and say we have agreed that it would be fine if one or the other of you went to Bellingham to a baseball game or something. You can

schedule an appearance before the Court and ask the Court to make an order on consent to allow that. However, in terms of making a long-term and more far-reaching determination about what should be done in that regard, that is something for another day. The interim order simply says that neither of you can take the children outside the Province for the time being. That will freeze things where they are at the moment pending a further enquiry. [ 58 ] So, I now conclude by making an order in these precise terms: 1. Pursuant to s. 37 of the Family Law Act : (

a) the applicant, [S.D.] shall henceforward and until further order of the Court comply strictly with all of the recommendations made by the B.C. Children's Hospital neurologist (the "BCCH Neurologist") at a consultation in June 2015 (the "June Consultation") concerning the ongoing treatment of the epileptic seizure disorder suffered by her daughter [Child T], including without limitation:

i) the recommendation that Child T take the medication or medications prescribed for her by the BCCH Neurologist at the June Consultation; ii) the recommendation that that medication or those medications be administered to Child T in accordance with a treatment plan to be prescribed for her by the BCCH Neurologist; and iii) any other recommendations that are made from time to time concerning Child T's neurological care by the BCCH Neurologist or any other neurologist that is designated by the BCCH Neurologist to assume responsibility for Child T's neurological care.

(

b) S.D. shall request that her naturopathic physician, John Matsen, deliver forthwith to the BCCH Neurologist an outline of the treatments and dietary programs he has prescribed for Child T. S.D. shall further follow any recommendations that the BCCH Neurologist may make regarding the continuation, modification or cessation of those treatments and dietary programs. (

c) During his parenting time with Child T, the respondent [J.H.] shall cooperate fully and participate in ensuring that all of the recommendations referred to in this order regarding Child T's neurological care are strictly followed. 2. S.D. has liberty to make application, supported by expert reports prepared by properly qualified medical and quasi-medical practitioners that comply with the requirements governing expert evidence that flow from the Provincial Court (Family) Rules , the Family Law Act and the common law to vary or set aside this order upon 45 days' notice to J.H. 3. Pursuant to Rule 20(5) (

b) of the Provincial Court (Family) Rules : (

a) the Director of Child, Family and Community Services is added as a party to these proceedings; and (

b) a copy of this order shall be sent by the Provincial Court Registry by regular mail immediately following its entry to the offices of Dannielle Dunn and Adele Letwin, counsel for the Ministry of Child, Family and Community Services. 4. Pursuant to s. 64 of the Family Law Act , neither S.D. nor J.H. may remove Child T or [Child A] from the Province of British Columbia without an order of the Court authorizing such removal. 5. Judge T.S. Woods is seized of all future applications in this matter. 6.

The requirement that S.D. and J.H. endorse this order to signify their approval as to its form is dispensed with. [ 59 ] Now, the Registry will prepare that order and send it out to you at your respective addresses for delivery. [ 60 ] THE COURT: Is there anything about what I have specified in this order that is unclear to anyone? [ 61 ] S.D.: No. [ 62 ] THE COURT: All right. So you were at the neurologist's at B.C.

Children's Hospital very recently, perhaps yesterday. [ 63 ] S.D.: Mm-hmm. [ 64 ] THE COURT: Recommendations were made at that time that Child T receive a course of medication and that it would be introduced according to a treatment plan. Your obligation now is to get in touch with that neurologist right away and start to act on those recommendations. [ 65 ] S.D.: Right.

J.H. has all of the information given him so I will need copies. [ 66 ] THE COURT: I am sorry? [ 67 ] S.D.: J.H. has all of the information from the neurologist as far as the care plan and the prescription so I will need that information in order to – [ 68 ] THE COURT: J.H., it is obviously in everyone's interest that you share that information with S.D. [ 69 ] J.H. : I can give it to her as soon as we walk out the door. [ 70 ] THE COURT : Okay then. [ 71 ] J.H.: Or now if you would like. [ 72 ] THE COURT : Well, you are going to want to hold on to copies for yourself because when Child T is in your care you are going to have your responsibilities just as S.D. has hers. [ 73 ] J.H.: True. [ 74 ] THE COURT : [FURTHER DISCUSSION REGARDING FUTURE APPEARANCES AND SCHEDULING.] (ORAL REASONS FOR JUDGMENT CONCLUDED)