IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: A.B. v. C.D. and E.F.,

2019 BCSC 604
Date: 20190415
Docket: E190334
Registry: Vancouver

Between:
A.B.
Claimant

And

C.D. and E.F.

Respondents

Restriction on publication: A publication ban has been imposed by orders of this Court restricting
the publication, broadcast or transmission of any information that could identify the parties referred
to in these proceedings as “A.B.”, “C.D.”, and “E.F.”; and also restricting the publication of the
names of the parties and witnesses referred to by their initials or as “G.H.” or “I.J.” in relation to
these proceedings and any related proceedings regarding A.B. This publication ban applies
indefinitely unless otherwise ordered.

Before: The Honourable Madam Justice Marzari

Oral Reasons for Judgment

Counsel for the Claimant: K. Scorer

b. findlay, Q.C.

Counsel for the Respondent, C.D.: H.J. Dunton

C. Linde

Counsel for the Respondent, E.F.: J.R. Lithwick

Place and Date of Hearing: Vancouver, B.C.

April 8, 2019
Place and Date of Judgment: Vancouver, B.C.
April 15, 2019

INTRODUCTION

[1] AB, a 14 year old transgender boy, applies for a protection order to restrain his father, CD,
from publishing, speaking or giving interviews about this case or about AB’s personal and medical
information. He also seeks an order that would restrain his father from sharing related documents
or information with other persons, including media and social media organizations, who might
publish that information.
[2] CD opposes this relief on the basis that the public attention that he brings to AB’s case
through interviews, publishing information, and publicly speaking about this case is essential to
society and to his rights as a parent.

[3] CD acknowledges that AB identifies as male, but fundamentally does not accept AB’s
chosen gender identity. Nor does he accept this Court’s determination that it is in AB’s best
interests that AB be acknowledged and referred to according to his chosen gender identity. Finally,
CD does not accept this court’s previous determination that referring to AB with female pronouns
or otherwise denying his gender identity is causing AB harm. CD says that an order of this Court
cannot change his beliefs in this regard, and that there is and should be no restriction on his rights
as a parent to express those beliefs to AB and to the world at large.

[4] AB’s mother, EF, supports AB’s application for a protection order. CD and EF share custody
and guardianship of AB.

PROCEDURAL BACKGROUND

[5] AB filed a notice of family claim in early February 2019 seeking to be found competent to
consent to and to proceed with hormone therapy for his gender dysphoria.

[6] AB’s father opposed that relief, and filed his own petition in the civil registry seeking
injunctive relief to prevent AB’s doctors and counsellors from providing him with advice or
treatment (the “petition”).

[7] Mr. Justice Bowden heard AB’s application for summary trial of this family claim and an
application under CD’s petition for injunctive relief. In his joint reasons for judgment, Justice
Bowden reviewed the medical and other evidence of both parties and made a series of findings,
which include the following:

a) Since age 11, AB has gender identified as a male. He informed his school counsellor of
that when he was 12 years old and in Grade 7 (para. 11);

b) He is presently enrolled in Grade 9 at high school under his chosen male name and is
referred to by his teachers and peers as a boy and with male pronouns. He has
transitioned socially to being a boy (para. 12);

c) With his mother’s help, AB sought medical assistance to allow him to begin a physical
transition. He was seen by a licensed clinical psychologist experienced in treating
children with gender dysphoria on a number of occasions. That psychologist diagnosed
AB with gender dysphoria, which is a condition where an individual experiences
significant distress as a result of the sex they were assigned at birth being in conflict with
their gender identity (para. 13);

d) At BC Children’s Hospital, AB was seen by a specialist in the field of pediatric

endocrinology who concluded that hormone therapy was in AB’s best interests. The
original recommendation to commence this treatment was made in August 2018, but
 was deferred to allow time for C D. to consider information regarding the therapy (paras.
18-20);

e) CD advised the hospital that he did not consent to hormone therapy for AB (para. 20);

f) On December 1, 2018, AB’s treating pediatric endocrinologist wrote to CD regarding the

recommended hormone therapy. That letter stated that parental consent was not
required due to AB having the capacity to consent pursuant to section 17 of the Infants
Act, R.S.B.C. 1996, c. 223 (para. 22);

g) On January 8, 2019, AB informed his treating doctor that he was having “bad dysphoria”
and worsening discomfort with his physical body as other boys his age were progressing
through puberty. AB also informed him that he had attempted suicide in March 2018
(para. 24);

h) AB’s doctor at BC Children’s Hospital concluded that AB was experiencing ongoing and
unnecessary suffering, and that gender-affirming hormone therapy could improve AB’s
gender dysphoria and other co-morbid mental issues. Delay in provision of this treatment
was not a neutral option, as it will AB at greater risk of suicide (paras. 25-26);

i) A psychiatrist in the mental health department of BC Children’s Hospital met with AB and
concluded that AB had the capacity for informed consent for testosterone treatment. She
found that there was no indication that AB’s decision was influenced by depression,
anxiety or psychosis, or any systemic influences that were unduly affecting his decision
to pursue testosterone treatment. AB’s psychologist and endocrinologist agreed (paras.
28-30);

j) Another qualified doctor reviewed AB’s charts and the procedures involved and
confirmed that the above conclusions were made following appropriate guidelines. That
doctor also opined that in the case of a child who is dealing with gender identity issues
and who has previously attempted suicide, “…there is a significant risk of further
attempts – and possibly even completion – if treatment is delayed” (para. 31);

k) AB swore his own affidavit stating that he was desperate to start the treatment. He
states that every day his body develops more “female-ness” and he looks less and less
like a boy it causes him distress and exposes him to the risk of bullying and harassment
(para. 32); and

l) AB’s mother evidence included her belief that “If his treatment is put on hold, I am
terrified that AB will conclude there is no hope and will take his life” (para. 33).

[8] Justice Bowden concluded that AB’s hormone treatment should not be delayed further and
that further delay may result in AB attempting suicide again. Justice Bowden was satisfied that AB
fully understands the benefits and risks of the treatments recommended, has the capacity to
consent, and that the recommended treatments are in AB’s best interests.
[9] At paragraph 60, Justice Bowden concluded that “delaying hormone therapy for AB is not a
neutral option as he is experiencing ongoing and unnecessary suffering from gender dysphoria.”

[10] Mr. Justice Bowden granted AB’s summary trial application, dismissed CD’s application for
an interlocutory injunction, and made a series of declarations and final orders that are relevant to
the matter before me, including:

1. It is declared under s. 37 of the Family Law Act, S.B.C. 2011, c. 25 [FLA] that it is in the
best interests of AB that:

(a) he receive the medical treatment for gender dysphoria recommended by the Gender
Clinic at BCCH;

(b) he be acknowledged and referred to as male, both generally and with respect to any
matters arising in these proceedings, now or in the future and any references to him
in relation to this proceeding, now or in the future, employ only male pronouns; and

(c) he be identified, both generally and in these proceedings by the name he has
currently chosen, notwithstanding that his birth certificate presently identifies him
under a different name.

2. It is declared under the Family Law Act that:

(a) AB is exclusively entitled to consent to medical treatment for gender dysphoria and
to take any necessary legal proceedings in relation to such medical treatment;

(b) Pursuant to para. 201(2)(b), AB is permitted to bring this application under the
Family Law Act and to bring or defend any further or future proceedings concerning
his gender identity; and

(c) Attempting to persuade AB to abandon treatment for gender dysphoria; addressing

AB by his birth name; referring to AB as a girl or with female pronouns whether to
him directly or to third parties; shall be considered to be family violence under s. 38
of the Family Law Act.

3. AB is permitted to apply to change his legal name from that on his birth certificate to his
chosen name and the consent of his mother or father for such change is not required.

4. AB is permitted to apply to change his gender pursuant to s. 27 of the Vital Statistics Act,
without the consent of his father or mother.

5. In these proceedings, including all applications associated with the proceedings, the
names of the applicant young person, his father and his mother shall be anonymized.
The applicant young person shall be referred to as AB, his father shall be referred to as
CD and his mother shall be referred to as EF

[Emphasis added.]
[11] CD has appealed those orders. That appeal has yet to be heard. Unless or until the Court of
Appeal reverses any of the above declarations or orders, they are binding on the parties in this
proceeding, and are not open to re-determination.

THE ORDER SOUGHT

[12] In his amended application, AB seeks a series of orders that would restrain his father, CD,
from publishing, speaking or giving interviews about AB’s case and his medical records. The
orders sought are extensive, and as drafted would prevent CD from communicating to anyone
about this case or his position in the case other than to his legal counsel, the Ministry of Children
and Families, medical professionals, or AB’s mother EF, unless AB agrees to that communication
or the court so orders.

[13] I must therefore address two issues:

a) Whether a protection order restraining CD is warranted on the evidence; and,

b) If so, what the appropriate terms of such an order are.

[14] I will first address the test for the issuance of a protection order, I will then move on to the
evidentiary basis for the orders sought, and determine whether a protection order is warranted in
this case.

SHOULD THE COURT MAKE A PROTECTION ORDER?

[15] AB seeks a protection order pursuant to s. 183(2) and s. 182(3)(a)(i) and (e) of the FLA.
Section 183(2) gives the court jurisdiction to make a protection order if the court determines that
family violence is likely to occur against an at risk family member, and s. 183(3)(a)(i) provides that
the protection order may restrain a family member from communicating with that at risk person or
another specified person. Section 183(3)(e) also authorizes this court to include in a protection
order any terms or conditions it considers necessary to protect the safety of the at-risk family
member or implement the order.
Orders respecting protection
183 …
(2) A court may make an order against a family member for the protection of another family
member if the court determines that
(a) family violence is likely to occur, and
(b) the other family member is an at-risk family member.
(3) An order under subsection (2) may include one or more of the following:
(a) a provision restraining the family member from
(i) directly or indirectly communicating with or contacting the at-risk family
member or a specified person,
…
(e) any terms or conditions the court considers necessary to
(i) protect the safety and security of the at-risk family member, or
(ii) implement the order.
…
[16] Because AB is a child who is a family member, I must consider the factors set out at both s.
184 and s. 185. These factors include, among other things, an assessment of the history of family
violence, whether it is repetitive or escalating, psychological harm, and the possibility of harm to
children.

[17] The purpose of protection orders is to ensure that courts have the means of ensuring the
safety of those who are at risk. The court must distinguish between mere unpleasantness and
conduct that amounts to family violence. Where behaviour amounts to family violence, and in
particular where the behaviour is escalating or repetitive, the court may make the necessary order
to ensure the safety of the person at risk: see Morgadinho v. Morgandinho, 2014 BCSC 192 at
paras. 59-67. The inquiry as to the risk of family violence is future oriented, but is informed by past
conduct and future circumstances: S.M. v. R.M., 2015 BCSC 1344 at para. 25.

Is AB an at-risk family member?

[18] The definition of an “at-risk family member” is found at s. 182 of the FLA. I find that AB is an
at risk family member under that definition.

[19] Based on the evidence as well as the pre-existing findings of fact and law in this family law
case, I find that AB is in a particularly vulnerable position given his age, his dependency on both
his parents, his love for his father, his discomfort with his physical body, his risk of suicide, and his
exposure to bullying and harassment.
Is CD likely to commit acts of family violence against AB?

[20] Family violence can take many forms. Family violence is defined in s.1 of the FLA, but that
definition is inclusive and not exclusive. The inclusive definition of “family violence” recognizes that
the risk of harm extends beyond the infliction of physical violence: Morgadinho at para. 59. I note
that in particular, the definition encompasses psychological abuse in the form of harassment or
coercion, and unreasonable restrictions or preventions of a family member’s personal autonomy. In
the case of a child, both direct and indirect exposure to such harm may constitute family violence.

[21] This Court has already determined that it is a form of family violence to AB for any of his
family members to address him by his birth name, refer to him as a girl or with female pronouns
(whether to him directly or to third parties), or to attempt to persuade him to abandon treatment for
gender dysphoria. AB says that the evidence establishes that CD has done all of the above, and
has continued to do so even after the Court found that these actions were contrary to AB’s best
interests and constitute family violence.

[22] In argument, the focus of AB’s concern was CD’s continued willingness to provide interviews
to the media and social media outlets in which he identifies AB as female, uses a female name for
AB, discusses AB’s personal and medical information in detail, and expresses his opposition to the
therapies AB has chosen.

[23] AB relies on a number of examples which he says establish CD’s ongoing family violence
against him.
[24] CD is quoted in two articles in the well-established online conservative newspaper, the
Federalist: one just before Justice Bowden’s decision on February 26, 2019, and one shortly
thereafter on March 1, 2019. Those articles indicate on their face that CD was interviewed for
those articles, and contain quotes from CD including the following in the March 1 article:
Throughout our interview [CD] continued to refer to his daughter as a girl, “because she is a
girl. Her DNA will not change through all these experiments that they do.” [CD] understood
that this statement might be construed as a violation of the court’s interdict against “referring
to [Maxine] as a girl… to third parties,” but felt that he could not honestly take any other
stand.

[25] The Federalist articles use the pseudonym Maxine, but also originally identified AB by his
chosen name. They also contain links to materials in this family law case, including a full copy (not
redacted for anonymity or marked as an exhibit) of a letter sent to CD on December 1, 2018 by
AB’s doctor discussing AB’s decision to proceed with hormone therapy.

[26] The Federalist accepts and posts online comments on its website. Comments posted with
respect to the February 26, 2019 article include personal and derogatory comments about AB,
including statements that AB is mentally ill, and anticipating and even encouraging his suicide.

[27] After CD’s second interview with the Federalist published after Justice Bowden’s decision,
the published comments included:
· …Maxine should be told she is no longer welcome in the family home.
· So apparently trannies have a high suicide rate… is this a bad thing? Having difficulty
seeing a downside here.

[28] CD has also been active in providing interviews and information about AB to a Langley-
based organization known as Culture Guard. Culture Guard has posted interviews online with CD
about AB and this case on January 24, 2019, and March 3, 2019.

[29] In those interviews, CD refers to AB as female, and expresses both his rejection of the
permanence of AB’s gender identity and his opposition to AB’s chosen course of treatment. He
discusses in detail AB’s medical history, and trivializes AB’s suicide attempt. CD expresses
pleasure at the breadth of attention and publication his story is getting, and expresses hope that
Breitbart and Fox News might also cover his story.

[30] CD’s legal counsel, Mr. Dunton, has also provided interviews about this case on the Culture
Guard website, and Culture Guard has been given copies of the pleadings and reasons in this
case. I can only assume these have been authorized by CD.

[31] In February 2019, CD posted comments on Culture Guard’s website about himself under his
own name stating that he had agreed to be a keynote speaker in an event in March. He has also
posted on Facebook in his own name regarding AB’s case. I am advised that CD ultimately did not
speak at that event, and that CD now understands that exposure of his name and image also
publicly exposes the identity of AB contrary to existing orders of this court.

[32] In his direct evidence, AB describes his reaction to these posts. He states:
 Those posts make me terrified that my father is going to go public in some way that will
identify me and open me up to terrible bullying or violence. If he speaks in public “as my
father” about me in my case, I will be “outed” and I can never go back in the closet.
My mom told me that there are also interviews with my father on the Culture Guard website
but I cannot bear to watch them. It feels as if my dad is going behind my back and I feel really
sad and disappointed that he is doing that. I am scared to watch the interviews.…
I believe that my father is associated with groups that hate trans people, including Culture
Guard ….
I love my father. I want to have his name as my middle name. When I was born, I was given
the middle name “[REDACTED]” as the female version of my dad’s name. But I cannot be
around him unless he respects who I am and my gender identity. It messes with my head and
I cannot stand his berating me all the time.
I am concerned for my physical and emotional safety around my dad, and very worried what
he will do.

[33] Culture Guard and its main spokesperson, Kari Simpson, are involved in fundraising for
CD’s legal expenses in this case and the related petition opposing AB’s legal position in this action.
Reported comments from Ms. Simpson frequently conflate CD and Culture Guard as the litigant.
On March 1, 2019, after the release of reasons for judgement in this matter, the Culture Guard
Facebook page read: “We are APPEALING!!” That post also links to the March 1, 2019 Federalist
article. Below this post on the Culture Guard Facebook page are a series of public comments,
including comments that advocate abduction of AB, disowning AB, and “post birth abortion.”

[34] On the weekend of March 15-17, 2019, after the release of Justice Bowden’s reasons, AB
states in his evidence that CD sat him down to watch an online video with him while AB was
staying with CD. The video was about “Maxine” which AB immediately recognized as the name CD
uses to refer to AB in public interviews. AB told CD he did not want to watch the video, and went to
his room.

[35] AB also says that over the course of the weekend, CD was unable to call AB by his chosen
name or gender, and the visit ended prematurely and badly. The following Monday, CD wrote AB
an email stating his love for AB but also blaming AB for CD’s inability to speak with AB or spend
time with AB. For example, the email says “I am so sorry you have put me in this position,” and
says that CD had to cancel planned summer vacation time with AB because CD is unable to
comply with “your court ordered demands.”

[36] CD says that the above evidence does not establish that his actions are or have been
harmful to AB in any way, and that his conduct has not breached any orders of the court.

[37] With respect to the specific conduct AB alleges, CD says that AB’s evidence of the
Federalist and Culture Guard interviews are hearsay and so cannot be considered by the Court in
relation to this protection order.

[38] However, I am not concerned with the truth of what CD has said in those interviews, but with
the words having been said at all. The videos are with CD and there is no issue as to their
authenticity. While the Federalist articles are not sworn evidence of CD’s statements, they are
statements against interest on the part of CD, and are reliable enough to be admitted for the
purposes of this family law proceeding concerned with the best interests of AB (see S.M.A. v.
R.E.W., 2015 BCPC 34 at paras. 56-58 with respect to the admissibility of hearsay evidence in
family law proceedings). Had CD given his own evidence that he did not make the statements
quoted in the Federalist, I would have preferred his direct evidence over that of the unsworn
accounts of his statements in the articles. However, CD does not disavow the statements or
quotations attributed to him, and says only that he did not intend to disobey any court orders.

[39] CD denies that he gave the December 1, 2018 letter to the Federalist, However, he does not
account for how a letter addressed to him was provided to the Federalist. Rather he argues there is
no proof that the doctors involved in AB’s care did not provide it. He also says it is not AB’s medical
information because it was addressed to him and related to his parental rights. While I accept that
CD may not have directly provided this letter to the Federalist, I find he must have been the original
source of the publication of that letter though a third party. I also find that the letter primarily
pertains to AB’s private medical information.

[40] With respect to AB’s evidence that CD tried to get AB to watch a Culture Guard video about
AB, CD simply says that he did not “sit [AB] down” to make AB watch a video about this court case.
He argues AB is too old to make him sit down. He agrees that he was watching “a video about
parental rights in the context of child gender transition” and in argument acknowledges that AB left
the room when he realized what the video was about.

[41] CD implies that AB’s sworn evidence should not be relied upon and argues that others have
pressured and co-opted AB such that AB is not speaking for himself. In defence of advancing his
dispute with his child so publicly, he says that this is not a dispute with his child so much as with
“activists” that want to take away his parental rights.

[42] I have no evidence before me to support this implication. To the contrary, I have the findings
of Justice Bowden that AB is able to make his own decisions in relation to his chosen treatment
and his gender identity on the basis of substantial evidence, including medical evaluations. AB is
represented by his own counsel in these proceedings and has sworn his own affidavits.

[43] Unlike the situation in B.(R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1
S.C.R. 315 paras 83-85, which CD relies upon to support of his position that parents must have
freedom of choice to support their children when their children are unable to assert themselves, I
have no evidence here that AB is unable to assert his rights to security of the person. Indeed, that
is the very nature of AB’s successful claim.

[44] Finally, CD says that even if the conduct AB alleges is established, this does not amount to
family violence or harm to AB. Essentially his position is that as long as CD obeys the Court’s
orders regarding anonymizing AB in his public comments, AB is not harmed by his publicly
expressed concerns or comments regarding AB’s chosen gender identity and medical treatment.

[45] I reject this assertion because the risk to AB is not simply a risk that AB can be identified
through CD’s public opposition to AB’s position. The risk to AB that I must consider is how CD’s
public and private statements has and will affect AB directly.
[46] On all the evidence, I find that CD’s conduct both before and after the determinations made
by this Court indicate that he is likely to continue to engage in conduct that constitutes family
violence against AB, including through conduct already determined to be family violence by this
court, and the publication and sharing of deeply private information that is harmful to AB.

Freedom of Expression and the Open Court Principle

[47] Because CD has pursued his case against AB and AB’s care providers publicly, restraining
CD from this conduct will also restrict CD’s freedom of expression not only within his family but
more broadly.

[48] No constitutional challenge has been made by CD to s. 183(a)(i) which expressly provides
for restraining the communications of a parent. Indeed, CD agrees that that provision in most
cases will not raise a constitutional issue. However, in this case he says his freedom of thought
and speech will be compromised by the orders sought, as will his rights as a parent.

[49] CD’s rights as a parent are necessarily guided and constrained by the FLA and orders of
this Court. His rights do not include harming his child.

[50] Neither is CD’s freedom of belief engaged by the orders sought. There is no requirement
that CD change his views about what is best for AB. It is only how he expresses those views
privately to AB and publicly to third parties that is affected.

[51] While I reject CD’s argument that this engages the same constitutional analysis as a
publication ban that applies to third party media, I do accept that the protection order sought in this
case requires some consideration of the necessity of the order sought by AB, and the
proportionality of the constraints it would impose on CD’s freedom of expression.

[52] This is not the first time that a parent’s freedom to express their views publicly has sought to
be constrained for the protection of their child. While there is no direct case law on point in the
context of a protection order, courts have grappled with similar circumstances in the family law
context under different statutory regimes and different causes of action.

[53] In A.T. v. L.T.H., 2006 BCSC 1689, Madam Justice Gray considered an application by a
father to enjoin the mother of their children from posting allegations about him and the child on the
internet. The mother had been unsuccessful at trial in establishing that the father had sexually
abused the child. She nevertheless continued to believe this to be the case, and turned to the
internet to garner support for her situation. She posted information which described the alleged
sexual abuse by the father, providing both particulars of the alleged abuse and personal details of
the child. The father objected, and applied for an injunction restraining the mother from publishing
certain information in various places, including the internet.

[54] Justice Gray issued an injunction restraining the mother from posting this information. She
found that the publication of the information constitutes an invasion of both the child’s and the
father’s privacy, and the stigma and harm associated with this intrusion was likely irreparable.
[55] With respect to the effects of such an injunction on the mother’s freedom of speech, Justice
Gray found that the restraint resulting from an interlocutory injunction was reasonable, so long as
the mother was not constrained from advancing her position lawfully in court and with
governmental and health care professionals, and with adult members of her family.

[56] Justice Gray dismissed the mother’s concerns that stifling her public speech would stop her
from obtaining the public support that she saw as necessary to succeed in her further law suits.
Justice Gray reminded the parties that “The decisions of this court concerning that relationship are
based on evidence and the law, not public pressure”: see para. 52.

[57] CD seems to have forgotten this fundamental nature of our family justice system.
Repeatedly, he argued that his ability to speak publicly about AB was necessary to advance his
position that his parental rights should not be abrogated. However, the decisions of this Court are
made on the evidence before it, and the law as it stands. Making AB the public centrepiece of CD’s
parental rights cause will not change this Court’s views of that evidence, and will not help AB.
Indeed, the evidence is that CD’s public campaign is harming AB.

[58] As in A.T. v. L.T.H., I find that the balance of the values at issues in this case favours the
protection of the safety and security of AB. The best interests of the child and the child’s protection
from family violence is a paramount consideration in family law matters.

[59] I note that a similar order was also made by this Court in R.W. v. P.C., 2015 BCSC 748. In
that case, a mother posted to the internet images of her children and a description of her “personal
journey through the relationship” in which she accused the father of abuse. Mr. Justice Abrioux
used the RJR-Macdonald test to grant an injunction that is analogous to the protection order
sought in this case.

[60] In S.L.C. v. C.J.R.C., 2016 BCSC 656, at para. 134, Justice Gray comments that it is a
“course of wisdom” to limit the distribution of information, including even reasons for judgment and
orders where they may have an effect on the privacy of a child: “A parent is expected to act in the
best interest of the children, and so may be criticized for distributing the Court’s reasons for
judgment inappropriately, such as to children and neighbours.”

[61] Although none of the above cases consider the use of a protection order under Part 9 of the
FLA to restrain the conduct and communications of a parent to prevent family violence to a child, I
find that this is the appropriate tool in this case. I therefore am not required to consider whether
there is a common law cause of action that might also give rise to the basis for an injunction
restraining CD’s conduct. Nor need I consider this Court’s inherent jurisdiction or parens patriae
authority.

[62] In coming to this conclusion, I am also aware of the admonition of our Court of Appeal in
Chellappa v. Kumar, 2016 BCCA 2, that parties do not have the right to insist that family
proceedings and information revealed in them remain private simply because it is a family matter.
That decision establishes that a risk of significant harm must be established before such an order
should issue (in that case a conduct order).
[63] I find that a significant risk of harm has been established to AB by CD’s conduct.

[64] To go back to the principles of necessity and proportionality, I find that it is necessary to
restrain CD’s public expression to protect AB from harm. I also find such an order is proportionate.
As between protecting AB from the harm and the family violence of a public denial of his gender
identity by his father, and allowing his father to speak publicly about his parental rights as they
concern this deeply private aspect of AB’s innermost thoughts and feelings, the balance strongly
favours the protection of AB.

CONCLUSION

[65] The protection order that AB is seeking essentially prevents CD from committing acts
declared to be family violence against AB. While the existing order identifies what is in AB’s best
interests and identifies certain conduct as family violence, it does not expressly require CD to
refrain from doing acts that cause that harm.

[66] AB also seeks protection from his father’s public discussion of his case, including his gender
identity and his private medical records. I have found that CD has and continues to publish and
share AB’s personal information. In this case, the personal information CD is sharing is related to
AB’s gender identity, an area of great sensitivity and vulnerability for AB. He is doing so without
AB’s consent, and over AB’s objections.

[67] Furthermore, the people and organizations CD chooses to share his views with are those
that AB views as being fundamentally opposed to his right to choose his gender identity. What is
worse is that in the course of doing so, CD has also publically shared information and made
lighthearted comments about AB’s depression and suicide attempts.

[68] I find that CD’s sharing of AB’s private information has exposed his child to degrading and
violent public commentary. CD has nevertheless continued to support the media organizations
posting this commentary with additional interviews, and has expressed a desire for further
opportunities to do so.

[69] I find that CD is using AB to promote his own interests above those of his child, by making
AB the unwilling poster child (albeit anonymously) of CD’s cause.

[70] I find that this conduct puts AB at a high risk of public exposure and acts of emotional or
physical violence, in the form of bullying, harassment, threats, and physical harm, including self-
harm.

[71] I find that CD’s attempts at anonymizing himself and AB do not immunize AB from the
harms associated with this publicity or the commentary arising from it. AB knows that his father, the
public commentators, and online posters are all talking about him.

[72] AB is further harmed by the fact that it is his own father, whom he loves, who appears to be
publicly rejecting his identity, perpetuating stories that reject his identity, and exposing him to
degrading and violent commentary in social media.
[73] CD has not been deterred by AB’s requests, or even by his litigation. While I accept that CD
does not agree with AB as to what is in AB’s best interests, he has been irresponsible in the
manner of expressing his disagreement and the degree of publicity which he has fostered with
respect to this disagreement with his child. I find that AB is highly likely to continue to be exposed
to family violence if an order under s. 183 is not made with respect to his father’s behaviour.

[74] In conclusion, I find that AB is an at-risk family member who is highly vulnerable. I find that
his father’s expressions of rejection of AB’s gender identity, both publicly and privately, constitutes
family violence against AB. Finally, I find that CD’s conduct in this regard is persistent and unlikely
to cease in the absence of a clear order to restrain it.

[75] I therefore find that AB has established that he requires a protection order. I now must turn
to what the appropriate terms are for such an order.

SCOPE OF ORDER

[76] In A.T. v. L.T.H., Justice Gray suggested a number of factors that should be considered in
defining the scope of the order she made in that case. Those include:

a) the length of any such order;

b) who it should apply to; and

c) the scope of the communications it should affect.

[77] The default term of any protection order under Part 9 of the FLA is one year: s. 183(4). AB is
content with that term, and does not seek to make the term longer than that, subject to his right to
apply for an extension if required. I agree that this is an appropriate term.

[78] I must also consider whether the protection order should restrain only CD, or whether it
should apply more generally. Unlike injunctions that commonly apply not only to the person they
name but also to all others with notice, protection orders are a specific statutory tool to restrain
family violence by family members. Only CD has been alleged and found to have engaged in
family violence creating a risk of harm to AB. The protection order will therefore be against him
alone.

[79] The scope of the communications constrained by the order is more difficult. It must be
tailored to the harms and family violence that AB requires protection from, and should not restrain
communications or conduct that is not harmful to AB.

[80] AB and his mother, EF, say that although they have tried to suggest a more tailored order,
nothing short of a complete prohibition on CD speaking to anyone about AB’s case or medical
records, without AB’s consent, will adequately protect AB. They say that the evidence establishes
that even when CD himself does not publish information, he is the source of other publications of
AB’s deeply personal information, and so all third party communication should be restrained. They
would exclude from this requirement CD’s communications with EF and with medical professionals,
and of course his legal advisors. They would also suggest that an order of the Court could allow
additional communications.
[81] I believe a more specific order is possible and required.

[82] I begin with conduct that has already been declared by this Court after summary trial to be
family violence. This includes attempting to persuade AB to abandon treatment for gender
dysphoria, addressing AB by his birth name, and referring to AB as a girl or with female pronouns,
whether to AB directly or to third parties and publicly. This Court’s declaration that this conduct is
harmful to AB and constitutes family violence has not been enough to restrain CD from engaging in
that conduct. I consider that the continuation of this conduct must therefore be restrained in the
protection order.

[83] I would add for clarity (although I consider it implicit in the existing order) that exposing AB
to videos and other materials that question whether his gender identity is real or the treatments he
seeks are in his best interests, is an attempt to persuade AB to abandon treatment. While those
arguments may be properly advanced in court, they are harmful when made to AB by his father.

[84] I also find that the existing orders are no longer sufficient to ensure that CD does not do
further harm to AB by exposing AB to the above behaviours from third parties, and to bullying and
harassment, through CD’s dissemination of AB’s personal and private information to the public
more broadly.

[85] The key information that CD must be restrained from sharing is commentary, information or
documentation about AB’s sex, gender identity, sexual orientation, mental or physical health,
medical status or therapies. Because CD was unclear on this point in argument, I clarify here that
the order would preclude sharing letters from AB’s doctors written to CD about AB’s gender
dysphoria or his proposed treatment.

[86] This would allow CD to speak publicly and to third parties, for example, about when he will
be attending court, or to speak to AB’s teachers or extended family about how AB is doing in
school without reference to the above topics.

[87] I have considered whether this restriction should apply only to specified persons, as
authorized by s. 183(3)(a)(i) of the FLA, or whether a broader order is required pursuant to s.
183(3)(c) to protect AB’s safety and security.

[88] In this case, it is possible to identify the persons and organizations that CD has spoken to
thus far in contravention of AB’s declared best interests, with the intention and knowledge that his
comments would be made public. Furthermore those persons and social media organizations, with
knowledge of the Court’s previous orders, have continued to misgender AB and to publish
degrading and violent comments about AB.

[89] However, CD has also expressed a hope that additional news outlets might also cover “his”
story. In addition, there is evidence that CD is sharing information with third parties that is
eventually making its way to these publications. As a result, an order limited to these persons or
news organizations is not sufficient to protect AB’s safety and security from CD’s conduct in this
regard.
[90] I would exclude from the scope of this order communications by CD to his counsel, as well
as to his own or AB’s medical professionals. Communications with EF, and legal counsel retained
on this file and on CD’s Petition, shall also be permitted.

[91] CD shall be free to communicate to the court with respect to AB’s sex, gender identity,
sexual orientation, mental or physical health, medical status or therapies through submissions,
pleadings or affidavits, but these materials may not be shared with third parties. In other words, the
protection order shall not restrict what can be filed or said in court, but shall restrict what can be
shared from the court file or said outside of court.

[92] In A.T. v. L.T.H., Justice Gray permitted strictly private communications with family
members, subject to a copy of the injunction order being provided to them. I have given serious
consideration to this option, but as this is a protection order applicable to CD and not an injunction
order, service of the order would not necessarily provide the level of protection required to prevent
further dissemination of the information. In addition, CD has not explained who in his support
network provided AB’s medical information to the Federalist. Finally, I am concerned that AB not be
exposed to hearing his father’s comments about his sex, gender identity, sexual orientation, mental
or physical health, medical status or therapies through other extended family members.

TERMS OF ORDER

[93] The protection order is required to be prepared by the Registry. However, I will summarize
the substance of the order here:

a) CD shall be restrained from:

i. attempting to persuade AB to abandon treatment for gender dysphoria;

ii. addressing AB by his birth name; and

iii. referring to AB as a girl or with female pronouns whether to AB directly or to third

parties;

b) CD shall not directly, or indirectly through an agent or third party, publish or share
information or documentation relating to AB’s sex, gender identity, sexual orientation,
mental or physical health, medical status or therapies, other than with the following:

i. His legal counsel;

ii. Legal counsel for AB, EF, and the named respondents in the Petition currently filed
as Vancouver Registry S-191565;

iii. The Court;

iv. Medical professionals engaged in AB’s care or CD’s care;

v. Any other person authorized through written consent of AB; and

 vi. Any other person authorized by order of this court;

c) CD shall not authorize anyone, other than his own retained counsel, to access or make
copies of any of the files from the Registry in relation to this proceeding or any related
proceeding, including CD’s petition proceedings currently filed as S-191565; and

d) The term of the protection order shall be one year, subject to any extension issued by
the court.

[94] AB shall have his costs of this application against CD. I consider that the proceeding was of
more than ordinary difficulty given the constitutional values raised and the lack of precedent on
these issues.

[95] Finally, AB sought, by way of an amended application, an order to prevent CD from bringing
any further applications in this proceeding without further order of the court. That relief was brought
late and adjourned generally. I am not seized of it.

“Marzari J.”