BC Transgender Rights Family Lawyers handle issues related to separated spouses and their children involving transgender rights issues including gender-affirming surgery. Jaye Rutledge at MacLean Law is becoming a leader in this developing area and she explains issues arising from a recent BC Supreme court transgender affirming surgery decision. Our BC Transgender Rights Family Lawyers family lawyers act across Canada and we are Canada’s national family law firm. We have offices across BC, in Calgary, Winnipeg, and Toronto. Maclean Law has a storied history of win sin precedent-setting cases including wins in the Supreme Court of Canada. 1 877 602 9900
On January 18, 2021, the BC Supreme Court released the decision A.M. v Dr. F 2021 BCSC 32, concerning a transgender child’s right to obtain gender-affirming surgery and the proper procedure for bringing a court application without allowed all affected parties to appear in court to defend their position. This decision attracted the press.
This case deals with a 17-year-old transgender boy (who uses he and they pronouns), Y.Z., who was in the process of obtaining gender-affirming surgery. His parents separated when he was young and various court orders were made respecting guardianship, parenting, and relevantly, an order that if the parents could not agree on medical decisions for the child that they would defer to their healthcare provider. Unfortunately, when Y.Z. was 14, they reported that their mother had touched them in an inappropriate way and this resulted in the Ministry of Children and Family Development becoming involved. He lived with his father for a while but since June 2020 had been living on his own, by agreement with the Ministry.
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On November 2020, Y.Z.’s mother, A.M., learned that Y.Z. was going to be undergoing surgery (following the multiple-year process and wait period that is required in order to be approved for such surgery in British Columbia) and applied to the BC Supreme Court for it to be delayed in order to prepare for a court hearing about whether the surgery would be allowed to go ahead. Our BC Transgender Rights Family Lawyers were interested in how this matter came to court on a without notice process.
Y.Z. was not notified about the first court hearing and so was not allowed to provide their side of the story. Such hearings are allowed in some emergency circumstances, but in those cases the person appearing and their lawyer are under a strict obligation to provide full disclosure of the circumstances, to ensure the court makes a fair decision with all the relevant information. In this first appearance, A.M. failed to tell the court about the conflict between herself and Y.Z., the involvement of the Ministry, that Y.Z. was living on their own, that Z.Y.’s father was in the picture and supportive of the surgery, or any of the already existing court orders, including the one about how medical decisions would be made. In the January 18, 2021 decision the court also criticized A.M.’s lawyer for not fulsomely describing the law arising out of a recent Court of Appeal decision (which that lawyer was involved in) where a similar situation involving a transgender child seeking surgery was analyzed in great detail. Because of this lack of disclosure, the court at the first hearing ordered that Y.Z. transgender-related care be delayed until a full court hearing could be scheduled.
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At the full hearing, the court found that A.M. had failed to meet her obligation to provide full and frank disclosure. The court reiterated existing law that says an order obtained without the presence of one of the parties and without full disclosure will not continue after the court is advised of important omissions. The court also cited other existing laws saying that if a party fails to provide full disclosure and is later caught out on it, they may be prevented from bringing a further application for the same order later and that doing so may constitute an abuse of process.
Commenting on the substantive matter about whether A.M. could prevent Y.Z. from undergoing surgery, the court emphasized that Y.Z. was mature and deserved autonomy, had proper medical consultations with their healthcare providers, that the existing court order placed any disputed medical decisions in the hands of their healthcare providers, that Y.Z.’s father supported him, and that A.M. had not proven that she had any legal parenting responsibilities for the child, as are commonly sought in family law matters.
Because of the failure to provide full factual disclosure, the failure to advise the court of the previous parenting orders in place, and the lack of legal foundation for the case, the court dismissed the action in its entirety. While the mother may have had strong views our BC Transgender Rights Family Lawyers know that her approach was ill-conceived.
The result is similar to the case of a recent BC Court of Appeal decision which also prevented an unsupportive parent from restricting their almost 15-year-old child’s desire to undergo surgery following extensive consultations with doctors and mental health professionals that are required in order to be approved for surgery in BC. BC law limits the extent to which parents can intervene in properly consented to medical interventions of all kinds, including those of transgender people. Unfortunately, transgender children continue to face possible delays if an unsupportive spouse brings a without-notice application like occurred in this case, but the clear conclusion of any such case is that the child is allowed to proceed with the surgery, absent very strong reasons to the contrary.
If you have a Transgender Affirming Surgery or require top BC Transgender Rights Family Lawyers, call us today toll-free across Canada at 1 877 602 9900.
