Do Parental Rights Exist in Canada?
In the fall of 2023, the members of the UCP (United Conservative Party) passed a motion requiring parental consent if a child under the age of 16 wishes to use a different name or pronoun at school. While this resolution was non-binding on the Premier, in response to this motion, Smith announced policy objectives her government would commit to, which ostensibly were aimed at upholding parent’s rights. These included, inter alia,
a. requiring parents to be notified and allowed to opt their child into instruction focused on gender identity, sexual orientation and human sexuality;
b. for children under 15, parents must now be notified and consent to change their name or pronoun and for children 16 and 17, parents are only to be notified;
c. for children aged 16 and 17, they will be allowed to take hormone therapies for gender reassignment and affirmation purposes, so long as they are “deemed mature enough to make these decision” and upon obtaining the parents, physician’s, or psychologist’s approval;
d. it will not be permissible for those under 17 to undergo bottom or top surgeries;
e. banning biological males for participating in women’s sports;
f. attracting medically licensed mutilation experts who practice in transgender surgeries to Alberta; and
f. that child protection laws will be strictly enforced in situations “where one or both parents reject or become abusive to a child who identifies as transgender” (emphasis mine).
It will come as no surprise to anyone who knows me, that I believe a person cannot change their sex and that the idea of gender is a social construct promulgated by socialists/marxists principles to create division and weaken humanity. By implementing the above policy objectives, Smith is further ingraining into our society and legal system, the lie that men can become women and women can become men. In fact, rather than standing up for parental rights and protecting children by banning sexual orientation and gender identity curriculum in our schools, she is, inter alia, legalizing the mutilation and sterilization of minors (for those 16 and 17), and her “opt-in” policy will potentially create a more hostile environment in our schools, which will undoubtedly single children out from their peers should his or her parent opt them out of such instruction. As concerning, she is committed to using “child protection” laws against parents who do not wish to affirm their child. Therefore, can we really conclude that parental rights have been protected?
Canada was once a morally cohesive society where we could agree that parent’s primary responsibility over their children and that it was not appropriate to mutilate or sterilize our children, regardless of how mature a child appeared. However, over time and as our societies values and morals have evolved, Canadian courts have diluted this principle and have given increasing deference to children, especially under the common law legal concept of the mature minor, which has been used by our courts in support of overriding a parent’s position which conflicts with the child’s.
Canada joined the UN in 1945. Initially, the goal of the UN was to prevent another world war1, however, “[s]ince its Charter was written, the United Nations has been mandated to do new work which was not envisioned at the time of its creation”2. These mandates have been expanded to include, inter alia, “sustainable development”3 and “climate change” goals. Such initiatives have focused on, among other things, ageing, food, ending poverty, gender equality, decolonization, democracy, ending poverty and children.
In 1959 the UN passed the Declaration of the Rights of the Child. On December 12, 1991, under the leadership of Brian Mulroney, Canada ratified4 the Convention on the Rights of the Child (UNCRC) with a focus on the best interests of the child having paramountcy. While references are made within the UNCRC to parents, riddled throughout the document is a clear understanding that children’s rights are separate and distinct from their parent (or legal guardian). Moreover, the UNCRC clearly empowers members states (government authorities) to intervene despite the rights of parents and children. For instance, Article 8(2) states,
“Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.”
Article 9 of the CRC sets out how a state may separate a child from his or her parents, if such separation is in the child’s best interests. Article 12 provides the right of a child to be heard and that his or her views are to be given due weight in accordance with the child’s age and maturity, which has been used, in part, to support the “mature minor” concept in our courts. Article 18 recognizes the principle that parents (or legal guardians) have the “primary responsibility for the upbringing and development of the child”. However, Article 19 requires member states “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”.5
UN international treaties require Canada to incorporate its international commitments into domestic law however, even if not specifically legislated, the UNCRC may be cited by courts for interpretive purposes:
“The [UN]CRC has not been explicitly incorporated into domestic law through a particular statute or statutes, and therefore cannot form the basis of a cause of action in Canadian courts.[11] This is consistent with the usual Canadian approach to implementing international human rights treaties which it has ratified, which is to rely on a wide range of existing measures at the federal, provincial and territorial levels – including the Canadian Charter of Rights and Freedoms, legislation, policies and programs – to comply with its treaty obligations.”6
While a cause of action cannot form a basis in Canadian court, the Convention on the Rights of the Child can be referred to for interpretive purposes:
“In the absence of legislation explicitly incorporating the [UN]CRC into Canadian law, does this mean that the [UN]CRC cannot be cited and its broad principles asserted in the Canadian Courts, in particular in divorce proceedings? No – because even if an international treaty is not part of domestic law and has no mandatory effect, it may still be cited for interpretive purposes.[12]”7
Our courts and governments assert their authority to intervene against abusive or negligent parents under the concept of parens patriae. Each case regarding children is distinct on its facts, but all apply the best interest of the child test. Some cases find in favour of children who assert the mature minor principle, and some do not, but as society becomes more polarized regarding these issues and the moral fabric of our society becomes more obfuscated, conflict rises, and the rights of parents are eroded in favour of either the child or the state.
In A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, at paragraph 96, J. Abella, for the majority of the Supreme Court of Canada, set out the following factors to consider to determine whether a child is sufficiently mature to make a medical decision,
What is the nature, purpose and utility of the recommended medical treatment? What are the risks and benefits?
Does the adolescent demonstrate the intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences?
Is there reason to believe that the adolescent’s views are stable and a true reflection of his or her core values and beliefs?
What is the potential impact of the adolescent’s lifestyle, family relationships and broader social affiliations on his or her ability to exercise independent judgment?
Are there any existing emotional or psychiatric vulnerabilities?
Does the adolescent’s illness or condition have an impact on his or her decision-making ability?
Is there any relevant information from adults who know the adolescent, like teachers or doctors?
This case involved a 14-year-old who refused medical intervention, being a devout Jehovah Witness. Both the child and the parents had refused the medical treatment, but the majority of the Supreme Court upheld the validity of section 25(8) of the Child and Family Services Act, CCSM c C80, that the government was allowed to intervene. Most provinces have legislation empowering the state to apprehend a child from his or her parent. In Alberta, this is the Child, Youth and Family Enhancement Act, RSA 2000, c C-12.
In TRB v KWPB, 2021 ABQB 997 (CanLII), I represented a separated father who wished to wait for more information before agreeing to inject his children who were 12 and 10 with the Covid-19 “vaccine”. Both children had received prior vaccinations and were represented by counsel. One was hesitant about taking the jab and the other ambivalent. At paragraph 47, Justice K.C. Kubik ordered:
“1. The mother is authorized to have the children vaccinated against COVID-19 at such time as she deems appropriate. She may take such other steps as she deems necessary to ensure the children are physically and emotionally prepared for vaccination. She has sole decision-making authority for any and all medical and health care decisions relating to COVID-19 vaccination and/or treatment.
2. The mother and father will continue to share joint decision making with respect to all other medical and health related decisions. I direct that in the event of an impasse, and after exhausting all other good-faith attempts at resolution, including the assistance of the parenting coach, the mother will have final decision-making authority on all health and medical matters.
3. The father will not discuss, or permit any third party to discuss, the issue of the COVID-19 vaccination or COVID-19 generally with the children, or supply social media or other information about the vaccine or the disease to the children.
4. Neither parent, [n]or any third parties on their behalf, will discuss this litigation with the children.
5. Neither parent will speak negatively about the other in front of the children, or allow any third parties to speak negatively about the other parent in front of the children. This is a term of general application but also relates specifically to the issue of COVID-19 and the vaccination.”
While this case does not pertain to transgender rights and the children were not apprehended by the state, during covid, most courts sided with the government narrative. Further, in relation to Canada’s assisted suicide laws, where at one point this was illegal, the courts and parliament now support it.8 As the moral underpinning of our society changes, so do our laws and courts’ decisions.
In the article, Transgender Children and the New Frontier in Custody and Access, 2017 CanLIIDocs 3847, authors Pam MacEachern and Natasha Chettiar, summarize some cases where separated parents clash over their transgender child and extend the discussion to those who identify as “trans-racial” and “body integrity identity disorder” (those who suffer from discomfort with their bodies and wish to remove limbs).
Our Canadian Human Rights Act, R.S.C., 1985, c. H-6 states that sex, sexual orientation, gender identity or expression are protected grounds. This is mirrored in the Alberta Bill of Rights, RSA 2000, c A-14.
In 2021, An Act to amend the Criminal Code (conversion therapy), SC 2021, c 24, also known as Bill C-4, amended the Criminal Code “to criminalize so-called conversion therapy practices in Canada. Conversion therapy is a practice that seeks to change an individual’s sexual orientation to heterosexual, to change an individual’s gender identity to cisgender, or to change their gender expression to match the sex they were assigned at birth [or to repress non-cisgender identity]”. “It expands on the previous proposed legislation to protect all Canadians—regardless of their age—from the harms of conversion therapy practices and to promote the dignity and equality of lesbian, gay, bisexual, transgender, queer and Two-Spirit (LGBTQ2) persons.”9
It will be a criminal offence if a person,
causes another person to undergo conversion therapy (a hybrid offence with a maximum penalty of 5 years imprisonment on indictment)
removes a minor from Canada to undergo conversion therapy abroad (a hybrid offence with a maximum penalty of 5 years imprisonment on indictment)
profits from conversion therapy (a hybrid offence with a maximum penalty of 2 years imprisonment on indictment)
promotes or advertises conversion therapy (a hybrid offence with a maximum penalty of 2 years imprisonment on indictment).
However, the Canadian Government states that “[t]hese proposed new offences would not criminalize interventions that assist a person in exploring or developing their personal identity, provided that they are not based on the assumption that a particular sexual orientation, gender identity or gender expression is preferable to others. [emphasis added] This includes interventions that relate to one’s gender transitioning. They also would not criminalize activities that do not amount to practices, treatments or services, such as expressions of personal views on sexual orientation, gender identity or gender expression.”10
How comfortable do you feel that these offences and our laws will not be used against parents?
Conclusion
Chief Justice Wagner of the Supreme Court of Canada has stated he “sees the country’s top court as the most progressive in the world with a leadership role to play to promote democracy, the rule of law and “moral values” at home and abroad”.11
As Bruce Pardy, executive director of Rights Probe and professor of law at Queen’s University has noted, “[p]rogressivism is the ideology of collectivism, equity, wokeness, safetyism, and the managerial state”.12 In a 2022 interview with Le Devoir, Chief Justice Wagner condemned the Trucker Convoy. In response, myself, along with other lawyers filed a complaint with the Canadian Judicial Council, which is chaired by Wagner himself, arguing his comments undermine confidence in the impartiality of the courts. The complaint was summarily dismissed.
Whether parental rights exist or ever existed is therefore debatable. If they did, it was only because our society uniformly agreed this was the case because most adhered to Judaeo-Christian values and our courts and laws also supported these principles. Canada was founded upon principles that recognize the supremacy of God and the rule of law. The traditional family unit used to be paramount and parents’ authority respected. However, the moral foundation of our society has deviated so drastically from that based in Judaeo-Christian principles and values, that it is no longer recognizable. This is mirrored in our laws and courts’ decisions. For certain, the UN, our courts, and governments all support a framework where the state may intervene under the guise of protecting a child and children may make decisions for themselves (over the position of their parents) in cases where they have been determined to be a mature minor. While I support state intervention regarding the abuse or neglect of children in certain circumstances and with due process, given the current progressive climate of our nation and world, can we trust that the right and ethical/moral decision will carry the day? If so, which ethics or morals? As the world continues to embrace the authority of the UN (and its subsidiary organizations) and its intrusion into our healthcare decisions, including our governments’ acquiescence to the UN (including broadening the government’s role in replacing the parent), and the progressive nature of our governments and courts, I am pessimistic that our laws will be applied in favour of parents, at least, insofar as those parents who continue to live by Judaeo-Christian principles are concerned.
https://www.un.org/en/about-us/history-of-the-un
https://www.un.org/en/our-work
https://www.un.org/sustainabledevelopment/sustainable-development-goals/
https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/crc-crde/conv2a.html#:~:text=The%20Government%20of%20Canada%20ratified%20the%20CRC%20on%20December%2012%2C%201991
https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child
see supra, note 3.
see supra, note 3.
https://www.canada.ca/en/health-canada/services/health-services-benefits/medical-assistance-dying.html
https://www.justice.gc.ca/eng/csj-sjc/pl/ct-tc/index.html
Ibid.
https://www.thestar.com/news/canada/canada-s-top-judge-says-supreme-court-should-provide-leadership-at-a-time-when-fundamental/article_4b5c0f85-f4da-5c17-bb63-f06012bc0b73.html
https://nationalpost.com/opinion/bruce-pardy-supreme-court-undermined-by-chief-justice-condemning-freedom-convoy