Trans and gender diverse (TGD) youth are a vulnerable population that are highly reliant on their parents’ acceptance and support. TGD youth who do not have supportive families are at high risk of being homeless, with “coming out as LGBTQ” being a major contributing factor to youth homelessness in Canada.[1]Conversely the strongest protective factor for TGD youth’s physical health, mental health, social outcomes, and life satisfaction is having parental support.[2]
Despite the importance of parental support to the health and wellbeing of TGD youth, the ability for children to access appropriate gender-affirming healthcare has been highly politicized, which has driven conflict between TGD youth and their parents. In the B.C. case A.B. v C.D., 2020 BCCA 11, a transphobic father sought an interlocutory injunction to stop his 14-year-old son’s gender-affirming medical care, despite the son having validly consented to the treatment himself.[3]
Recently, the Alberta government invoked the notwithstanding clause to enact the Health Statutes Amendment Act, banning certain gender-affirming health care for youth, and requiring parental consent for treatments that youth could otherwise consent to on their own behalf.[4]
This is not the first time the Canadian courts have addressed conflict about children’s accessing medical care despite their parents’ wishes. In the 1986 case J.S.C. v. Wren, 1986 ABCA 249, a 16-year-old sought an abortion and her parents brought a suit against the doctor to stop the abortion.[5] The Alberta Court of Appeal imported the English common law concept of a “mature minor” and found that a parent loses the right to determine whether their child receives a treatment once the child achieves “sufficient understanding and intelligence” to make the decision themself.[6]
These parent-child conflicts become more complex in the context of family law disputes, where parents may disagree as to whether their child should access gender-affirming care, or whether the child is capable of consenting to treatment. In family law disputes, courts are called on to make orders allocating decision-making responsibility (formerly called “custody”) between the child’s parents in accordance with the child’s best interests,[7] which can bear on health-related decisions even where the child may be capable of consenting to the treatment.
In her recent excellent article “Best Interests of Autonomy?”,[8] family law professor Claire Houston addresses the competing interests of the “bests interests” analysis under the Divorce Act and Ontario’s Children’s Law Reform Act, and minor health care consent frameworks such as Ontario’s Health Care Consent Act. In family law disputes where an older child’s healthcare is at issue, Courts tend to apply the family law framework;[9] however, in cases where gender-affirming care is at issue, courts have been more sensitive to the child’s right to make or otherwise participate in decisions about their care.
In this blog post, I outline what is considered appropriate gender-affirming health care for minors according to the World Professional Association of Transgender Health (WPATH), as well as Ontario’s Health Care Consent Act under which minors can consent to their own medical treatments. I then review how Canadian courts have treated minors’ capacity to consent to gender-affirming care within the context of family law disputes and provide practical considerations for families and family lawyers in navigating disputes about children accessing gender-affirming care.
What is gender-affirming care for minors?
In Ontario, health care practitioners working with TGD patients rely on WPATH’s Standards of Care for the Health of Transgender and Gender Diverse People (“Standards of Care”). The Ontario Ministry of Health use WPATH’s criteria to fund transition-related surgery,[10] and Rainbow Health Ontario’s Guidelines for Gender-Affirming Primary Care are informed by the WPATH Standards of Care.
Gender-affirming care for prepubescent children and adolescents involves a spectrum of interventions and can sometimes be as simple as encouraging a gender-curious child to continue to express themselves. WPATH’s Standards of Care does not recommend medical treatment for pre-pubescent children and is very cautious in its recommendations regarding surgical gender-affirming treatments to adolescents.
For prepubescent children, WPATH recommends psychotherapy and assessment to help understand the child’s development, as well as parental involvement and education.[11] Health care professionals encourage families to show support for their child’s gender expression (i.e., affirm their child’s gender identity), and discuss with families the potential benefits and risks of “social transitioning”, such as using a different name or pronouns for the child, or allowing them to wear different clothing or hairstyles.
Where social transition is not appropriate, it is still recommended that health care professionals encourage the child to continue exploring their gender, and as the child approaches puberty, educate the child and their family about potential medical interventions that may be appropriate when the child reaches adolescence.
For adolescents, care may include social supports, puberty blockers, and hormone therapy, with puberty blockers and hormone therapy being two distinct treatment steps each requiring separate informed consent.[12] WPATH recommends involving other medical and mental health professionals where appropriate,[13] as well as involving the adolescents’ parents or guardians where it is not harmful to the adolescent.[14] Importantly, the adolescent should be encouraged to explore their gender but the health care professional should not encourage any particular identity.
If an adolescent is requesting surgical treatment, the health care professional must assess the adolescent’s maturity to consent with regard to any mental health concerns that may affect that judgment. Before approving surgical treatment, the health care professional must confirm that the adolescent both has the maturity to consent and that the adolescent has an experience of gender incongruence that is “marked and sustained over time” combined with hormone therapy for at least 12 months.[15]
When does a minor have capacity to consent to their own gender-affirming medical treatment?
The age of majority and laws regarding medical decision-making for those under the age of majority varies considerably across Canadian provinces and territories.[16] In general, each jurisdiction has some mechanism by which a child under the age of majority can potentially consent to medical treatment, either through legislation or case law.
In Ontario, the ability to consent to health care treatment is governed by the Health Care Consent Act (HCCA).[17] Although the age of majority in Ontario is 18,[18] there is no reference to the age requirement for a person to consent to a medical treatment under the HCCA. Instead, a person is capable of consenting to a treatment if they are able to “understand the information that is relevant to making a decision about the treatment” and “appreciate the reasonably foreseeable consequences of a decision.”[19] Importantly, every person is presumed to be capable unless the health care practitioner has reasonable grounds to believe the person is incapable.[20]
If a person is capable of consenting to a treatment, a healthcare practitioner can only provide a treatment if the person consents; if a person is incapable, the practitioner may only provide the treatment if the person’s substitute decision maker gives consent, with certain limitations.[21] For minors, a “substitution decision-maker” will generally be a parent.[22]
In Ontario and most other provinces and territories there are no special considerations for consent to gender-affirming care, however as mentioned previously, Alberta has made recent legislative changes limiting gender-affirming care for minors. In Alberta, puberty blockers may not be used for youth under 16 even with parental consent, and may only be used for youth ages 16 and 17 with parental consent.[23] This legislation was strongly condemned by the Canadian Professional Association for Transgender Health (CPATH).[24]
Canadian courts tend to respect minors’ rights to consent to gender-affirming care within family law disputes
In family law parenting disputes, decision-making responsibility for significant decisions about a child can be shared by the parents or assigned to one parent. One of the areas of decision-making responsibility is decisions about the child’s health. A court can make general orders about decision-making responsibility, or can make orders about specific decisions (for example, the child will attend therapy).This can lead to conflicts in family court where a parent will try to seek decision-making responsibility or an order for a health-related decision for a child, contrary to the mature child’s treatment wishes, on the basis that the child’s wishes are not in the child’s best interests.
Professor Houston recommends that family courts approach disputes over children’s medical decisions with a focus on the child’s capacity to consent: if the child has capacity, allow the child to consent to the treatment directly; if the child is not capable, their wishes should be given serious weight in recognition of their developing autonomy.[25] Furthermore, Professor Florence Ashley, a specialist in trans law, argues that in the area of trans healthcare specifically, youth should have decision-making authority because gender identity is uniquely personal and parents will rarely be positioned to make a more informed decision than the child.[26]
Although in her research, Professor Houston found that Canadian courts tend to apply the family law “best interests” analysis over assessing a child’s capacity to consent to treatment, the few reported Canadian family cases that have weighed in on the specific issue of gender-affirming care for minors tend to find that the child has the right to be involved in the decision to receive the treatment. In the aforementioned case A.B. v C.D., the B.C. Court of Appeal found that a 14-year-old, being sufficiently mature, validly consented to receiving gender-affirming care and it was not the court’s place to assert whether the treatment was in the child’s best interests.[27] In another B.C. case N.K. v. A.H., 2016 BCSC 744, an 11-year-old was diagnosed with gender dysphoria and his parents disagreed about whether he should begin transitioning, including puberty blockers.[28] The court ordered that, because of the child’s investment in the outcome, he should have his own lawyer so that he could adequately participate in the legal process.
In the Ontario case L.S. v B.S., 2022 ONSC 5796, a 14-year-old, whose parents were separating, was receiving gender-affirming medical care.[29] The father received no information about the treatment and sought to block it, while the mother was supportive of the treatment.[30] The father was unable to access information from the child’s health care professionals and sought to have it produced in family court. The court refused to order production of the child’s records to the father on the basis that the father’s desire to block the treatment was potentially harmful to the child.[31] The court specified that the medical records related to the child’s gender-affirming care were more strongly privileged due to the child’s vulnerability and right to equality on the basis of his gender identity.[32]
How to approach family court disputes involving minors’ gender-affirming care
Given the conflicting laws on parental decision-making authority and minors’ health care consent, how do parents with a trans or gender diverse child address these issues if they are raised in family court?
Although mature minors’ health care consent capacity ought to be respected as much as possible, decision-making responsibility for health care remains important in family law disputes. Since capacity depends on a person’s ability to understand a specific treatment, a minor may be able to consent to certain treatments and not others. As such, even if an older minor child has consented to their own treatment in the past, general decision-making responsibility for health decisions should still be assigned to one or more parties where there is uncertainty about the child’s capacity to consent to further treatment.
Parties are often advised not to involve children in parenting and decision-making disputes, as it can be viewed as putting the children in the middle of the conflict which can be harmful. However, where separating parents may disagree on gender-affirming care for their gender-diverse child, it is important that they speak with their child about the topic in a respectful way to understand them and their wishes. Where the child is older and more mature, it may be appropriate for parents to inform their child that the child may be able to seek the treatment without parental consent, thus allowing the child to receive the treatment in a timely manner and removing the issue from the family law dispute.
Parents in family law disputes who are supportive of their mature child’s treatment wishes should advocate for their child’s capacity to make their own decisions regarding the treatment. However, given that courts still often apply the “best interests of the child” analysis, they should also be prepared to demonstrate how the treatment is beneficial to their child’s interests, including the value of the child’s own views and preferences.
Professor Houston has advocated for courts to give weight to professionals who know the child in determining the child’s maturity, rather than the court assessing maturity based on the child’s wishes.[33] As such, involving the child’s health care providers and assessors, including but not limited to a gender-affirming care provider, could be a valuable way to ensure the child’s ability to consent is respected. This could include providing the court with documentary evidence as well the provider participating in the court process as a “participant expert” witness.
For parents who are hesitant or resistant to their child accessing gender-affirming care, be aware that healthcare providers provide comprehensive, cautious, age-appropriate care for minors, including no medical intervention until the child approaches adolescence. As children enter adolescence, they become more mature and more likely to be capable of validly consenting to the treatment.
Canadian courts have been reluctant to prevent a child from receiving gender-affirming care that has been recommended by a health care professional. Furthermore, in family law cases involving disputes over a child’s gender identity more generally, courts tend to award decision-making responsibility and parenting time to the gender-affirming parent.[34] As such, resisting a child’s wishes for gender-affirming care in the family court setting is not only unlikely to stop the treatment but may also result in a parenting order against the unsupportive parent. Given that gender identity is an intensely personal experience, gender-affirming care may be a case where the child knows best.
Finally, for minors whose parents both disagree with their treatment wishes, it is important for them to know that, as a “mature minor”, they may be able to seek and consent to gender-affirming care on their own behalf.
[1] Alex Abramovich, “No Fixed Address: Young, Queer, and Restless”, in Stephen Gaetz et zal, eds, Youth Homelessness in Canada: Implications for Policy and Practice(Toronto: Canadian Homelessness Research Network Press) 387. <https://homelesshub.ca/resource/23-no-fixed-address-young-queer-and-restless>
[2] Robb Travers et al, “Impacts of Strong Parental Support for Trans Youth: A Report Prepared for the Children’s Aid Society of Toronto and Delisle Youth Services” (2 October 2012),online: TransPULSE < https://transpulseproject.ca/research/impacts-of-strong-parental-support-for-trans-youth/>
[3] A.B. v C.D. 2020 BCCA 11.
[4] Canadian Professional Association for Transgender Health (CPATH),“Statement from the Canadian Professional Association for Transgender Health(CPATH) on the Alberta Government’s Anti-Trans Legislation and the Use of the Notwithstanding Clause” <https://cpath.ca/wp-content/uploads/2025/10/Eng-CPATH-Alberta-statement-Oct-16-2025.pdf>(CPATH Statement)
[5] J.S.C. v. Wren, 1986ABCA 249.
[6] J.S.C. v. Wren at paras 13-17.
[7] Divorce Act, s.16(1); Children's Law Reform Act, RSO 1990, c. C.12, s. 24(1).
[8] Claire Houston “Best Interests of Autonomy, Navigating Parenting Disputes Over Children’s Treatment”(2025) 70:4 McGill LJ 755. (“Houston”)
[9] Houston at 776.
[10] Rainbow Health Ontario, “Who can refer me for TRS?”
[11] WPATHSOC, S69.
[12] WPATH “Statement Regarding Medical Affirming Treatment including Puberty Blockers for Transgender Adolescents – WPATH, EPATH, USPATH, AsiaPATH, CPATH, AusPATH, PATHAResponse to Bell v. Tavistock Judgment” 2020.
[13] E. Coleman et al., “Standards of Care for the Health of Transgender and Gender Diverse People, Version 8”, International Journal of Transgende rHealth 2022, S1–S258 at S48, statement 6.8 (WPATH SOC).
[14] WPATH SOC,S48, statement 6.11.
[15] WPATHSOC, S48, statement 6.12.
[16] For a review from the health care practitioners’ perspective, seethe Canadian Pediatric Society’s position paper “Medical decision-making in paediatrics: Infancy to adolescence”, Paediatr Child Health 2018, 23(2):138–146. For a review from a legal perspective, see Houston at 762–767.
[17] Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (HCCA).
[18] Age of Majority and Accountability Act, R.S.O. 1990, c. A.7, s. 1.
[23] CPATH “Statement from the Canadian Professional Association for Transgender Health (CPATH) on the Alberta Government’s Anti-Trans Legislation and the Use of the Notwithstanding Clause” 19 Oct 2025.
[24] Ibid.
[25] Houston at 791.
[26] Florence Ashley, “Youth Should Decide: The Principle of Subsidiarity in Paediatric Transgender Healthcare”(2021) 49:2 J Medical Ethics 110.
[27] A.B v. C.D., 2020 BCCA 11.
[28] N.K. v A.H., 2016 BCSC 744.
[29] L.S. v. B.S., 2022 ONSC 5796.
[30] L.S. v. B.S. at para 6.
[31] L.S. v. B.S. at paras 186-190.
[32] L.S. v. B.S. at paras 191-195.
[33] Houston,790
[34] Claire Houston, “Respecting and Protecting Transgender and gender-nonconforming children in family courts” (2020) 33 Can J Family L 103.