Suing a municipality for poor snow clearing and a finding of "Family Violence" against a father for opposing hormone treatment for child with gender dysphoria overturned

Two new British Columbia Court of Appeal decisions are discussed on the show this week. 

When can you sue a municipality for an injury caused by poorly cleared snow? 

The Court of Appeal provided some clarity in a recent case against the City of Nelson. The plaintiff suffered a serious leg injury after stepping into a snowbank trying to get from an angled parking spot to the sidewalk.

While a municipality is not liable for injuries caused by policy decisions, such as whether to clear the snow or not, they can be liable when a policy decision is poorly implemented, and this causes a hazard. The legal distinction is between “policy” and “operation”.

The second case discussed involved a 14-year-old who was diagnosed with gender dysphoria and wished to undertake hormone therapy following a social transition from female to male at age 12. 

The child’s parents had been separated for several years and, while the child’s mother supported the treatment, the father opposed it.

Various court application ensued and an order was made against the father declaring that his references to the child as a girl, whether directly or to third parties, was a form of “family violence” pursuant a definition of this term in the Family Law Act that includes things like “psychological or emotional abuse of a family member.”

The father was ordered not to attempt to persuade the child to abandon the treatment, not to refer to the child by his birth name, and not to refer to the child as a girl or with female pronouns to the child, or any third parties.

The unfortunate language used in the Family Law Act, which defines “psychological or emotional abuse” as “violence” seems to have made this dispute worse, as the language is inconsistent with any ordinary meaning of the term “violence”.

While the conduct of the father, in refusing to accept the child’s chosen gender, and to refuse to address him by the name he had chosen was found to be disrespectful and hurtful, the Court of Appeal found that, despite the incongruent definition in the Family Law Act, this should not have been characterized as family violence.

The Court of Appeal also modified the lower court order which prohibited the father from discussing the matter with the child or expressing his opinion to the friends or family members.

The hormone therapy continued, without the approval of the father, because section 17 of the Infants Act permits minors to consent to their own medical treatment.

Legally Speaking with Victoria Lawyer Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.

Links to the cases discussed, and a transcript of the show can be found here.