Chmiliar v. Chmiliar

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Moen, J.
• Citation: (2001), 295 A.R. 140 (QB),2001 ABQB 525
• Date: 05 May 2001

Chmiliar v. Chmiliar (2001), 295 A.R. 140 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. JL.018

Rodney Mark Chmiliar (applicant) v. April Joanne Chmiliar (respondent)

(Action No. 4803 103849; 2001 ABQB 525)

Indexed As: Chmiliar v. Chmiliar

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moen, J.

June 22, 2001.

Summary:

A father sought an order directing that his daughter (age 13) receive several vaccinations. The mother opposed the application and raised the issue whether the daughter had the capacity to consent or withhold consent to the vaccinations.

The Alberta Court of Queen's Bench refused to order the vaccinations.

Infants - Topic 1403

Medical treatment - Consent - A father sought an order directing that his daughter (age 13) receive several vaccinations - The custodial mother opposed the application and raised the issue whether the daughter had the capacity to consent or withhold consent to the vaccinations - The Alberta Court of Queen's Bench concluded that the daughter was capable of giving her consent or withholding it - However, her capacity to consent has been removed by fear instilled by her mother - Given that the daughter was so fearful of the consequences of the vaccines, the court declined to order the vaccinations because on balance, her fear outweighed the benefits at this time - See paragraphs 52 to 66.

Infants - Topic 1403

Medical treatment - Consent - A father sought an order directing that his daughter (age 13) receive several vaccinations - The custodial mother opposed the application and raised the issue whether the daughter had the capacity to consent or withhold consent to the vaccinations - The Alberta Court of Queen's Bench stated that the daughter's capacity to consent was "determined by an analysis of whether she appreciated the nature and purpose of the vaccinations and the consequences of refusing the vaccinations. Indicia of a minor's ability to consent may include the age of the minor, the maturity of the minor, the nature and extent of the minor's dependence on the parent(s) and the complexity of the treatment. The nature and extent of the minor's dependence goes to the ability of the minor to make an independent decision without coercion and influence of a parent or a guardian." - See paragraph 50.

Cases Noticed:

C.R.B. and S.G.B. v. Director of Child Welfare (Nfld.) (1995), 137 Nfld. & P.E.I.R. 1; 428 A.P.R. 1 (Nfld. T.D.), refd to. [para. 7].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1; 9 R.F.L.(4th) 157; 122 D.L.R.(4th) 1, refd to. [para. 7].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena B., Re.

Toews v. Weisner (2001), 3 C.C.L.T.(3d) 293 (B.C.S.C.), refd to. [para. 33].

Malette v. Shulman (1990), 37 O.A.C. 281; 2 C.C.L.T.(2d) 1 (C.A.), refd to. [para. 40].

J.S.C. and C.H.C. v. Wren, [1987] 2 W.W.R. 669; 76 A.R. 115 (C.A.), refd to. [para. 42].

Gillick v. West Norfolk and Wisbech Area Health Authority and another, [1985] 3 All E.R. 402; [1985] 3 W.L.R. 830 (H.L.), refd to. [para. 43].

Authors and Works Noticed:

Jones, M.A., Patients Who Refuse Consent to Treatment: The Legal and Ethical Response, 4(1) Health Law Rev. 17, p. 18 [para. 47]; 20 [para. 48].

Picard, E.I. and Robertson, G.B., Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 196), p. 72-3 [para. 49].

Rozovsky, L.E. and Rozovsky, F.A., The Canadian Law of Consent to Treatment (1990), p. 55 [para. 44].

Sneiderman, B., Irvine, J.C., and Osborne, P.H., Canadian Medical Law (2nd Ed. 1995), p. 39 [para. 44]; 46, 47 [para. 45].

Counsel:

Dennis E. Bayrak, for the applicant;

The respondent appeared on her own behalf.

This application was heard on May 5, 2001, before Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on June 22, 2001.