1. Health Care Is Part of Decision-Making Responsibility

2. Which Medical Decisions Are Significant?

3. What Are Day-to-Day Health Decisions?

4. What Happens When Parents Share Medical Decisions?

5. Can One Parent Have Final Medical Authority?

6. What Happens in a Medical Emergency?

7. Can Both Parents Access the Child’s Medical Information?

8. What Is a Mature Minor?

9. Does the Child’s Preference Matter?

10. How Does the Court Resolve a Medical Dispute?

11. Vaccination Disputes

12. Mental-Health Treatment

13. Medication Across Two Homes

14. Medical Expenses and Decision-Making Are Different Issues

15. Common Mistakes in Medical Disputes

16. When Should You Speak With a Family Lawyer?

17. How Bridgestone Law Can Help

Introduction

Medical decisions can become particularly stressful after parents separate. A child may need routine vaccinations, counselling, medication, surgery or an assessment for an ongoing health concern. One parent may support the recommended treatment while the other wants a different approach or a second opinion.

Who has authority to decide depends on the parents’ agreement, parenting plan or court order. Health care is generally a significant area of decision-making responsibility. If parents share responsibility for health decisions, they will usually need to consult each other about major non-emergency treatment. If one parent has sole or final responsibility for health care, that parent may generally make the decision, subject to any consultation requirements or restrictions in the governing documents.

A parent exercising parenting time can ordinarily make day-to-day decisions during that time unless an order says otherwise. This may include responding to minor illnesses or obtaining routine care. In an emergency, necessary treatment should not be delayed while parents attempt to resolve a dispute.

The child’s own ability to consent can also become relevant. In Alberta, a young person under 18 may sometimes be treated as a mature minor if the health-care provider determines that the young person understands the proposed treatment and its consequences.

Because medical decisions can range from routine to urgent and life-changing, parents should carefully review their legal documents and distinguish ordinary care from significant treatment.

Health Care Is Part of Decision-Making Responsibility

The federal Divorce Act defines decision-making responsibility as responsibility for significant decisions concerning a child’s well-being. Health is expressly included.

A court may allocate decision-making responsibility:

• jointly to both parents;

• solely to one parent;

• by giving one parent final authority after consultation;

• by dividing authority between different subjects; or

• through another arrangement suited to the child.

For example, an order may provide that both parents share health and education decisions. Another may give one parent final authority over medical care while requiring that the other parent be informed and consulted.

Under Alberta’s Family Law Act, a guardian’s powers, responsibilities and entitlements also include making decisions about the child’s health care. Guardian status and the terms of any parenting order or agreement must be considered together.

Labels such as “shared parenting,” “primary parent” or “joint custody” do not necessarily answer the question. Parents should review the exact language dealing with health-care decisions.

Which Medical Decisions Are Significant?

A significant medical decision usually has an important, lasting or potentially serious effect on the child.

Examples may include:

• non-emergency surgery;

• starting or discontinuing long-term medication;

• psychiatric treatment;

• psychological or psychoeducational assessments;

• ongoing counselling or therapy;

• vaccinations where the parents disagree;

• treatment for a chronic condition;

• significant dental or orthodontic treatment;

• choosing between competing treatment recommendations;

• reproductive health decisions;

• refusal of recommended treatment;

• admission to a treatment program; and

• selecting or changing a child’s principal medical provider in circumstances where the change has a meaningful effect on care.

Whether a decision is significant depends on the circumstances. A routine prescription for a short-term infection is different from medication intended to manage a long-term condition.

The seriousness of the condition, risks of treatment, treatment duration and effect on the child may all be relevant.

What Are Day-to-Day Health Decisions?

Under the Divorce Act, a person with parenting time generally has exclusive authority to make day-to-day decisions affecting the child during that time, unless the court orders otherwise.

Routine health decisions may include:

• treating a minor cold;

• administering previously prescribed medication according to instructions;

• using ordinary first aid;

• deciding that a mildly ill child should rest at home;

• arranging a routine appointment for a minor concern;

• responding to ordinary allergies;

• purchasing non-prescription medication appropriate for the child; and

• following an established treatment plan.

Day-to-day authority does not normally permit a parent to disregard a significant treatment plan or make a major medical decision that falls within shared decision-making responsibility.

A parenting plan can provide useful detail about routine care, medication, appointments and information sharing.

What Happens When Parents Share Medical Decisions?

Parents who share decision-making responsibility for health care should generally consult each other before making significant non-emergency decisions.

A reasonable consultation process may include:

1. identifying the medical concern;

2. sharing the provider’s recommendations;

3. providing relevant reports and appointment details;

4. discussing the treatment’s benefits, risks and alternatives;

5. considering the child’s views where appropriate;

6. obtaining a second opinion if reasonably necessary; and

7. attempting to reach a timely decision.

Consultation does not require endless discussion. Medical matters sometimes require decisions within a limited period. A parent should not delay responding as a way of preventing treatment.

Parents can use email or a parenting communication application to exchange accurate information and keep the discussion focused.

Can One Parent Have Final Medical Authority?

Yes. A parenting agreement or court order may give one parent final authority over health-care decisions.

The documents may require that parent to consult the other before making a final decision. If so, the consultation requirement should be followed genuinely. Final authority does not necessarily mean the other parent can be excluded from appointments or denied information.

An order may also impose conditions, such as:

• following recommendations from a particular specialist;

• obtaining a second medical opinion;

• providing advance notice of non-emergency treatment;

• sharing reports within a specified time;

• permitting both parents to attend appointments;

• requiring written communication; or

• limiting direct communication where there are safety concerns.

A parent does not automatically have final medical authority simply because the child lives with them most of the time or because they scheduled the appointment.

What Happens in a Medical Emergency?

A genuine emergency should be addressed according to the child’s immediate medical needs.

The parent caring for the child should ordinarily obtain necessary emergency assistance and inform the other parent as soon as reasonably possible. Health-care providers may also provide urgent treatment according to the legal and clinical rules governing emergency care.

Parents should not delay emergency treatment while attempting to obtain the other parent’s agreement.

After the immediate emergency, the parent should provide relevant information, including:

• where the child was treated;

• the diagnosis;

• medication instructions;

• follow-up appointments;

• activity restrictions; and

• any continuing treatment recommendations.

A parenting plan can expressly authorize either parent to consent to necessary emergency treatment while requiring prompt notice to the other.

Can Both Parents Access the Child’s Medical Information?

Under section 16.4 of the Divorce Act, a person with parenting time or decision-making responsibility is generally entitled to request and receive information about the child’s well-being, including health information, unless the court orders otherwise and subject to applicable laws.

Access to information is different from authority to make decisions.

A parent may be entitled to receive appointment information, medical reports or treatment updates even if the other parent has final health-care authority. However, health-information and privacy laws still apply. The child’s age, maturity and ability to make their own health decisions may also affect what information can be disclosed.

Parents can assist providers by supplying:

• current contact information;

• a copy of the relevant parenting order or agreement;

• clear information about decision-making authority;

• any restrictions on access or communication; and

• written consent where appropriate.

Medical professionals are not responsible for deciding an unresolved family-law dispute. If the parents provide conflicting instructions, the provider may request legal clarification before proceeding with non-urgent treatment.

What Is a Mature Minor?

The age of majority in Alberta is 18. However, age alone does not always determine who can consent to medical treatment.

A health-care provider may determine that a person under 18 is a mature minor if the young person has sufficient intelligence and understanding to appreciate:

• the nature of the proposed treatment;

• why it is recommended;

• the reasonably foreseeable benefits and risks;

• available alternatives; and

• the consequences of accepting or refusing treatment.

There is no single age at which every child becomes capable of providing independent consent. Capacity is assessed in relation to the particular decision.

A mature teenager may be capable of consenting to some treatment while not having sufficient understanding for another, more complex decision. The treating professional makes the clinical capacity assessment; a parent cannot simply declare that the child is or is not a mature minor.

Where a mature minor provides valid consent, the young person’s privacy rights may also affect the medical information shared with parents. This can be a sensitive area, particularly where mental health, sexual health or other confidential treatment is involved.

Does the Child’s Preference Matter?

Even where the child is not independently consenting as a mature minor, their views may be relevant.

The Divorce Act requires the court to consider the child’s views and preferences, giving due weight to age and maturity, unless those views cannot be determined.

The weight given to the child’s preference may depend on:

• the child’s age;

• maturity and understanding;

• the seriousness of the treatment;

• reasons for the preference;

• consistency of the child’s views;

• information available to the child; and

• whether the child has been pressured by a parent.

Parents should listen to the child without asking them to choose sides in a medical dispute.

How Does the Court Resolve a Medical Dispute?

If parents cannot agree, either may apply for an order resolving the issue or allocating medical decision-making responsibility.

The court’s decision must be based on the child’s best interests. The child’s physical, emotional and psychological safety, security and well-being receive primary consideration under the Divorce Act.

Evidence may include:

• medical records;

• recommendations from treating professionals;

• expert evidence;

• the risks and benefits of treatment;

• treatment alternatives;

• urgency;

• the child’s medical history;

• each parent’s involvement in the child’s care;

• the child’s views and maturity;

• each parent’s ability to follow treatment;

• the effect of delay;

• the parents’ ability to communicate; and

• whether a parent’s position is supported by reliable medical information.

The court does not simply count how many professionals or family members support each parent. It assesses the evidence and determines which result best protects the child’s well-being.

Vaccination Disputes

Vaccinations can become a disputed medical decision when parents share health-care responsibility.

A court may consider:

• current medical recommendations;

• evidence from the child’s physician;

• the child’s individual health history;

• known contraindications;

• risks associated with vaccination or non-vaccination;

• school, travel or activity implications; and

• the reliability of the evidence presented.

Parents should distinguish credible medical evidence from general online commentary. If a child has a particular medical risk, information from the treating physician or specialist may be important.

Mental-Health Treatment

Mental-health decisions may involve counselling, psychiatric care, assessments or medication.

Parents should consider:

• the child’s symptoms and level of distress;

• recommendations from qualified professionals;

• the child’s therapeutic relationship;

• the importance of confidentiality;

• the child’s age and capacity;

• consistency between households; and

• the risks of delaying treatment.

A parent should not use therapy primarily to gather evidence for a parenting dispute. The child’s treatment should remain focused on the child’s health.

The involvement of both parents may be beneficial in some circumstances, but family violence, coercive control or confidentiality concerns can require a different approach.

Medication Across Two Homes

A child’s medication should be administered consistently and safely.

A parenting plan may address:

• keeping medication in both homes;

• transporting medication;

• dosage instructions;

• prescription renewals;

• notifying the other parent of changes;

• secure storage;

• recording administered doses; and

• responding to missed medication or side effects.

One parent should not ordinarily stop or alter prescribed medication without appropriate medical advice and legal authority to make that decision.

Poor communication about medication can create a genuine safety risk, particularly where doses are time-sensitive.

Medical Expenses and Decision-Making Are Different Issues

The authority to approve treatment and responsibility for paying the expense are related but separate questions.

Some uninsured health expenses may qualify as special or extraordinary expenses under applicable child-support guidelines. These can include certain dental, orthodontic, counselling, therapy, prescription or health-related costs.

Whether an expense must be shared can depend on:

• the child’s need for treatment;

• whether the expense is reasonable;

• available insurance;

• each parent’s income;

• prior consultation;

• the terms of the agreement or order; and

• the applicable child-support rules.

A parent should not assume that having authority to approve treatment automatically permits them to require the other parent to pay any amount charged.

Practical Examples

Routine Illness During Parenting Time

A child develops an earache while staying with one parent. That parent takes the child to a walk-in clinic, obtains a short-term prescription and promptly informs the other parent.

This may fall within reasonable day-to-day care, depending on the order and circumstances.

Proposed Long-Term Medication

A physician recommends ongoing medication for a child’s chronic condition. The parents share medical decision-making responsibility, but one parent has concerns about side effects.

The parents may review the physician’s recommendation, ask questions and obtain a reasonable second opinion. One parent should not unilaterally begin or reject the long-term treatment unless the agreement or order gives that parent authority.

Emergency Surgery

A child is injured and requires urgent surgery while in one parent’s care.

Emergency treatment should not be delayed while that parent attempts to obtain formal consent from the other. The other parent should be notified as soon as reasonably possible and provided with the hospital and follow-up information.

Mature Teenager Seeking Care

A 16-year-old seeks treatment and demonstrates a clear understanding of its nature, risks and alternatives.

The health-care provider may assess whether the teenager can provide their own consent as a mature minor. The legal and privacy analysis may therefore differ from the analysis for a young child.

Common Mistakes in Medical Disputes

Assuming the Primary Parent Decides

More parenting time does not automatically create sole medical authority. The order or agreement must be reviewed.

Confusing Routine Care With Major Treatment

A parent’s authority to treat a minor illness does not necessarily extend to surgery, long-term medication or significant therapy.

Withholding Medical Information

Failing to share diagnoses, medication instructions or follow-up requirements can place the child at risk.

Stopping Medication Without Advice

Changing prescribed treatment without medical guidance can harm the child and may breach the parenting arrangement.

Delaying Emergency Care

The child’s immediate health takes priority in a genuine emergency.

Using Unreliable Information

Courts generally require credible evidence when resolving treatment disputes. Unsupported internet material may carry little weight.

Treating Information Access as Decision-Making Authority

A parent may be entitled to records without having final authority to choose the treatment.

Placing the Child in the Middle

A child should not be pressured to adopt one parent’s position or carry medical messages between households.

When Should You Speak With a Family Lawyer?

Legal advice may be helpful when:

• parents disagree about significant treatment;

• surgery or long-term medication is proposed;

• one parent refuses recommended medical or mental-health care;

• treatment is being arranged without required consultation;

• a parent is withholding medical information;

• medication is not being administered consistently;

• the order is unclear about health-care responsibility;

• a provider is receiving conflicting instructions;

• the child may have capacity to consent independently;

• an urgent court decision may be required; or

• the existing decision-making arrangement is no longer workable.

Where the issue is urgent, obtaining legal advice promptly may help prevent harmful delays.

How Bridgestone Law Can Help

Bridgestone Law assists parents in Calgary and throughout Alberta with medical decision-making disputes, parenting agreements, decision-making responsibility and court applications.

We can help you understand who currently has authority, identify the information required from medical professionals and pursue a practical, child-focused resolution. We can also help draft parenting provisions covering emergencies, appointments, medication and health-information sharing.

Where parents cannot agree, Bridgestone Law can help present the relevant evidence and seek an order that protects the child’s health, safety and overall best interests.