Canadian Lawyer

www.lawtimesnews.com 23 required to consider when determining best interest the views and preferences of the child, the court still has the overriding jurisdiction under the family law legislation to make de- termination as to best interest. Basically, they said the best interest test gives the court the jurisdiction to make a decision even though it's possible the HCCA would mean you need the kid's consent." The HCCA says that if a health-care practi- tioner named in the schedule of the regulated professions proposes a treatment for a person, that health-care practitioner can't administer it unless that person has capacity and has giv- en consent. The act overlaps into family law when it comes to what practitioners call re- unification strategies in parent/child contact problem cases. This is when one parent has alienated the child against the other parent, so that the child does not want to see or be with that parent. Family law lawyers call it a thorny, challenging and complex area to deal with in their practice. One of the trickier aspects of the act when it comes to its application in cases looking at reunification strategies is that there's no age requirement above which the health- care practitioner must get consent — it's a flexible standard. "It's a question of whether or not some- one can understand," Pawlitza says. "It comes up in the custody/access realm often where there's estrangement or alienation and a judge wants to order some sort of reconciliation or reunification therapy or even as part of swap- ping custody and dealing with the alienation and estrangement issues." The decision in A.M. goes through at some length what questions a court should ask when trying to assess the maturity of a child when considering their maturity and what principles the court should apply when look- ing at the best interest standard in consider- ing an older child. Pawlitza says children anywhere from 12 and up "have a lot to say, and what happens if the court chooses to ignore the child's views and preferences?" It's a common difficulty family lawyers face, and it's often adolescents in the alienated or estranged circumstances. Even if therapy is ultimately ordered, there are complicating factors. One example is the mental health professionals that assist family lawyers — if their college's rule of conduct re- "It's hard to be critical of judges who, on very fact-specific cases, want to approach it and problem solve it and 'roll up their sleeves,' and it's also hard to be critical of judges who are concerned and preoccupied with the issue of consent in the context of sometimes very invasive treatment." Heather Hansen, Martha McCarthy & Co. LLP

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