Judge appoints litigation guardian to represent interests of transgender child in recent decision

Epstein’s This Week in Family Law

Philip Epstein

Application to Appoint Independent Counsel for 11-year-old Child - Transgender Issues

K. (N.) v. H. (A.), 2016 CarswellBC 1141 (B.C. S.C.) - Skolrood J. The issue of separate or independent representation for the child in this case arises in the context of a dispute between the parties about the proper course of treatment for the child who has been diagnosed with gender dysphoria.

The child is currently transitioning from a female gender at birth to the male gender and that involves the administration of a drug, Lupron. The parents disagree as to the appropriateness of this treatment.

Justice Skolrood reviews section 201 of the Family Law Act which relates to the legal capacity of the children with respect to proceedings under the statute, and section 203 of the Family Law Act which deals more explicitly with the appointment of a lawyer to represent the interests of children in a proceeding under the FLA. The Court recognizes that the real issue is the manner in which the participation of the child will occur.

Justice Skolrood finds that the court has inherent jurisdiction to control its own process and use its parens patriae jurisdiction in the best interests of the children which gives him jurisdiction to appoint a litigation guardian.

Justice Skolrood reviews the helpful comments of Madam Justice Martinson (as she then was) in which she canvassed the possible approaches in Dormer v. Thomas, 1999 CarswellBC 1410 (B.C. S.C. [In Chambers]).

Ultimately, that case determines that factors such as the age and maturity of the child will inform the determination of the preferred approach. The options for the court are to permit the child’s lawyer to act directly for him/her or to require the appointment of a litigation guardian. Justice Skolrood concludes:

That said, J.K. is only 11 years old and I have been referred to no cases in which a child of that age has been granted independent party status in litigation without a litigation guardian.

Further, while the issue concerning J.K. is focused on his rights and determining his future, that issue nonetheless arises in the context of a broader, ongoing dispute between J.K.’s parents and I am concerned about the impact on J.K. of placing him squarely in the middle of that dispute.

For this reason, I have come to the conclusion that it is in J.K.’s best interest that he participate in the proceeding through a litigation guardian. That guardian can guide J.K. through the process and help him formulate the views that he would like to put before the court. The guardian can also deal with the parties on matters relating to the litigation and provide J.K. with something of a buffer from the acrimony existing between his parents.

The litigation guardian must act through a lawyer and it may well be that the litigation lawyer will retain the lawyer now acting for the child.

If the parents cannot agree on a suitable litigation guardian, the mother is given the final authority to make a decision. Many more of these cases are going to arise in the future. This is a useful road map for these kinds of disputes.