Bench Press - Vol 40-3 Autism, Homeopathy and Custody - LawNow Magazine

Bench Press – Vol 40-3 Autism, Homeopathy and Custody

Two small boys with severe and profound autism spectrum disorder were at the centre of a custody dispute between their parents. The children have seen a myriad of medical and health care professionals. The father began giving the boys a series of homeopathic treatments after consulting with homeopathic practitioners. In addition, he took the children to a podiatrist, osteopath, and wanted to pursue speech therapy and listening therapy. The mother testified that these treatments seemed to be making the boys worse, and testified that she believed he was seeking a cure for autism rather than finding a method to manage it. The judge commented: “The father’s behaviour and attitude are unfortunate as it is clear that he loves the children and the children love him….Although it is understandable that the father wishes to investigate services and possible therapies for the children, such services need to be discussed and co-ordinated with the children’s teacher, medical doctors and other professionals involved in the children’s lives and of course discussed with the mother. The father…has not done so and has no insight that he should do so”. Justice Zisman ordered sole custody for the mother, with access for the father, but under strict conditions. Among other restrictions, she ordered that he not give the children any homeopathic remedies without the mother’s prior written consent, or take the children for any treatment, therapy, appointment or consultation with any person providing any type of medical, homeopathy, naturopathy, osteopathy, podiatry, occupational therapy, speech therapy or any other type of therapy with out the prior written consent of the mother.

Ciutcu v Dragan, 2015 ONCJ 659 (CanLII)


Well-drafted Waivers

Robbie Levita suffered a severe break to his leg while playing hockey in an adult recreational, non-contact league. He sued the league and the player who hit him during the game. The judge found both the defendant player and the league not liable for the plaintiff’s injuries. Interestingly, he ruled that even if the league had been found negligent for not providing a safe environment for play, its waiver was a complete defence to claims against it. He found that the waiver was unambiguous about risk and specifically listed the risks and dangers it covered, such as collision with the boards, being struck by sticks or pucks, or physical contact with other participants, resulting in injuries. Justice Firestone also concluded: “The plaintiff’s argument that the waiver was not explained to him is not sufficient to dispose of the waiver’s effect. The plaintiff understands the legal significance of signing a waiver document. If he was unclear about the waiver’s meaning or felt he did not have sufficient time to read the waiver, it was, with respect, open to him to take the necessary steps to satisfy himself that he understood the contents of the document before he signed it. Based on the factual background in this case he cannot retrospectively void the waiver’s effect by arguing he voluntarily signed something he did not read.”

Levita v Alan Crew et al, 2015 ONSC 5316 (CanLII)


A Traffic Ticket Odyssey

After ten years, four levels of court, and numerous interveners, including the Alberta Catholic School Trustees Association and the Commissioner of Official Languages in Canada, two Alberta men have lost their battle to fight their traffic tickets because the Alberta Traffic Safety Act and Regulations were not published in both English and French. They claimed that there was a constitutional obligation on the part of Alberta to enact, print and publish its laws in official languages. This launched a sweeping review of Western Canadian history going back to 1870 when huge swaths of land owned by the Hudson’s Bay Company became part of Canada. The Supreme Court of Canada rejected the men’s argument in a six to three split decision. The majority ruled that the 1870 Rupert’s Land and North-West Territory Order (the 1870 Order), which covered the territory that eventually became Alberta, did not expressly provide for legislative bilingualism, unlike the 1870 Manitoba Act, creating that province, which expressly did. The Court rather tartly commented: “The Canadian Parliament knew how to entrench language rights and did so in the Constitution Act, 1867 and the Manitoba Act, 1870 in very similar and very clear terms. The total absence of similar wording in the contemporaneous 1867 Address or 1870 Order counts heavily against [the appellants]…” As a result, the Court ruled that Alberta is not constitutionally obligated to enact, print and publish its laws and regulations in both French and English.

Three Supreme Court judges dissented, including two from Quebec. They wrote: “…this historical context shows that by the time the 1870 Order annexed the territories to Canada, the Canadian government had come to accept that legislative bilingualism was among the rights of the territories’ inhabitants.”

Caron v. Alberta, 2015 SCC 56 (CanLII)


Names in Japan

In December, the Supreme Court of Japan ruled that spouses must use the same surname. Five plaintiffs had challenged the law, claiming that it was unconstitutional and violated their human rights. However, the Court said: “It is only reasonable for family members to have the same name.” Presiding Judge Itsuro Terada stated that changing one’s name after marriage did not harm “individual dignity and equality between men and women” and noted that maiden names can still be used informally. The law in Japan does not say which surname a married couple must use, so it is possible that families could choose to use the wife’s name. However, apparently 96% of Japanese families adopt the husband’s surname.

Five Judges, including all three female judges on the 15-judge bench, dissented.

Citation not available.














Teresa Mitchell
Teresa Mitchell
Teresa Mitchell is the former Editor and Legal Writer for LawNow at the Centre for Public Legal Education Alberta.

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