Case law: Child’s gender identity

Halton Children’s Aid Society v G.K. 2015 ONCJ 307

Although the issue at the centre of this case is the gender identity of a child, the case is surrounded by the presence of domestic violence, which does not seem to be taken into account by the court in dealing with the custody and child protection matters.

The parents in this case had two children, who were 3 and 4 at the time of these proceedings. The parents had separated, and the children were spending roughly equal amounts of time with each parent.

It was the mother’s position that the older child, born a boy, was identifying as a girl and should be supported in doing so. She claimed that the father was not supportive of this. The father’s position was that the mother was pressuring the older child to identify as a girl.

The CAS removed the children from the mother’s care and brought a motion seeking an order that they (aged 3 and 4) be placed in the temporary care and custody of the father, under the supervision of the CAS, with the mother to have supervised access.

The CAS took the position that the children were at risk of emotional harm in their mother’s care because, in its opinion, the mother was forcing the older child to be a girl against his wishes and had physically disciplined him when he did not act or dress like a girl.

The issue of the child’s gender identity arose during a long and conflicted custody and access case that had included involvement by the Office of the Children’s Lawyer. The OCL report found that both parents were loving and dedicated, but noted that the father had engaged in aggressive behaviour towards the mother and the women’s shelter where she had been receiving support.

This behaviour consisted of emails that the OCL report said “could easily be viewed and felt as intimidating, verbally abusive and controlling.” The father had been cautioned by the police with respect to these emails and told he would be criminally charged if they continued.

However, abuse-related issues had arisen long before the OCL report. The CAS was initially involved with the family on the date of separation, when they came to the home due to conflict and assisted the mother and children in moving into a shelter. At that time, protection concerns about the father’s mental health and his strategies for managing the children’s behaviour were verified by the society. The CAS was involved on at least two further occasions because of concerns about the father’s behaviour.

This case was initiated because of the gender identity issue and the very different positions about it taken by the mother and the father. Eventually, an expert in the issue of gender identity in children became involved and wrote a report. His recommendations included the following:

  • The child be allowed a variety of ways of expressing himself without ascribing any of them to a particular gender
  • The mother refrain from using female pronouns with the child
  • There be follow-up with a support team with whom the child could build rapport

The father was not happy with this report. He was verbally aggressive in a meeting with the expert and then sent a number of abusive and threatening emails to him. He eventually apologized for this conduct.

The parents agreed to follow the recommendations. After further visits to the children’s homes and interviews with the older child, the CAS reached the conclusion that the mother was not following the recommendations and removed the children from her care.

It appears from the decision that this child, like many, said what he thought people wanted to hear and what would make both of his parents happy. In other words, what the child said tended to favour whichever parent he was with when he made that particular comment, and there were a number of inconsistencies in what he said.

In coming to his decision to return the children to the care of the parents, Justice O’Connell used the two-part test required by law to determine whether or not the children should be taken into temporary care.

First, he had to determine whether there were reasonable grounds to believe there was a likely risk of harm to the children in the mother’s care and, second, that the children could not be adequately protected by the terms and conditions of a temporary supervision order in their mother’s care.

Justice O’Connell found that the CAS established that they had reasonable grounds to believe there was a likely risk of emotional harm to the children, but he found that this was caused by the conduct of both parents, not just the mother, based largely on the ongoing conflict between the parents as well as their disagreement about the older child’s gender identity/expressions.

However, he found that the CAS did not meet the second part of the test and said that the society’s decision to remove the children from the mother’s care was “concerning” and was made “without exploring a lesser disruptive or intrusive alternative.”

He identified several areas of concern about the credibility of both parents, and relied heavily on the “credible and trustworthy evidence” of the expert in gender issues in coming to his decision.

His final decision was that

the children can be adequately protected in both parents’ care by the strict terms and conditions of a supervision order and that this is the least intrusive order which will adequately protect the children.

The temporary order included a provision that the parents were to follow through with the expert’s recommendations and that:

Neither parent shall unilaterally dress [the older child] as a girl or force [the older child] to take on certain gender roles against his wishes. In the event that [the older child] expresses a desire to dress as a girl, then the parent in whose care [the older child] is shall respect [that] desire but shall contact the other parent and the society immediately to notify them of [the older child’s] wishes  . . .

Justice O’Connell’s concluding comment was:

[the older child] has the right to express himself the way he so chooses and it is hoped that each parent will accept, respect and support [him] as he develops, in whatever way he develops.