Obesity a factor in custody caseWritten by Jennifer Brown Tuesday, 19 June 2012
|‘I think it definitely could be precedent setting,” says Kenneth Younie of the Ottawa case.|
According to an article in the Ottawa Citizen a judge will rule, in part, on whether the 38-year-old father is too obese to have custody of his children. The Child and Family Services Act prohibits the identification of the father or his two children, both with special needs and now in foster homes. The boys were seized from their mother’s care last year. She reportedly had been sent to hospital for a suspected overdose.
The man refused gastric bypass surgery, deciding instead to lose the weight through exercise and diet. However, the family court doctor contracted to assess the man’s case said in his report, regardless of how much weight was lost, “. . . he will continue to be at risk related to his obesity for some considerable time. This will include not only his risk for major life threatening events, but also a lack of mobility and proneness to injury as was exemplified by (the father’s) hobbling around on crutches when last seen individually. (The father’s) health issues are magnified by his anti-authoritarian traits and refusal to follow recommended treatments. This also raises questions to his ability to make proper decisions in regards to his sons’ medical, educational or psychological needs.”
The Royal Ottawa Hospital’s family court clinic, which does court-ordered assessments on parents, is now using obesity as a factor when deciding if parents are fit to raise children.
There are other factors in this man’s case, involving anger management and drug use, but the man insists he has dealt with those issues.
Kenneth Younie, an associate with MacDonald & Partners LLP says he has seen weight as an issue on some files he has worked on, and notes that as the issue of obesity becomes more prevalent, the courts may begin to see more of these kinds of cases. He says the best interest of the children must be taken into consideration.
“I have never seen anything quite like this before — the individuals weren’t as obese as this person was but I have seen it where one parent has questioned the other’s dietary habits and what they were passing on to the children. I do think it’s something you have to tread carefully around,” says Younie.
“I think it definitely could be precedent setting — I think lawyers would use this kind of decision in future cases if dealing with similar facts. Anytime there is an obese parent it could be a factor that would stack up against them having custody or residency of the children.”
The case doesn’t surprise Sarah Boulby, a lawyer with Basman Smith LLP in Toronto.
“I don’t find it as surprising as it has been painted because it seems to me it’s part of the type of issue a court will look at and if someone has a mental health issue or has a physical problem that makes it difficult for them to actually care for the child — running after them, bathing them and meeting emotional needs — then it’s a valid inquiry for the court,” says Boulby.
The determination may ultimately come down to the man’s mental state, says Boulby.
“The comment in the assessment report was that the weight was reflective of his inability to meet the children’s psychological and physical needs. I think there’s a suggestion that there is a mental health issue related to the weight so it’s part of the whole picture. It’s a very extreme situation — this is not your average weight problem,” says Boulby.
Update June 22:
A family court judge ruled Wednesday that an obese man fighting for custody of his children, aged 5 and 6, will be put up for adoption.
The two boys are currently in foster care under the protection of the Children's Aid Society.
The man plans to appeal the case and start a hunger strike at Parliament Hill Friday
Jennifer Brown is the editor of Canadian Lawyer InHouse. She has been a business magazine writer and editor for 10 years covering the IT, occupational health and safety, and security sectors for the business-to-business press prior to arriving at InHouse. She was also a newspaper reporter for five years in the Greater Toronto Area covering health care and education before going to work at a daily news online portal reporting on the technology sector.
Latest from Jennifer Brown
Related items (by tag)
Subscribe to Legal Feeds
Gail J. Cohen