What It Takes to Win a Parental Rights Case in Canada

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News Analysis

Alberta-based lawyer James Kitchen has been litigating for years. As a self-described libertarian lawyer focused on human rights and individual freedoms, he has taken on cases involving issues such as freedom of expression, Charter challenges, and parental rights.

For him, it has become an increasingly uphill battle. He says that although parental rights are protected by law, Canada’s justice system has become “highly politicized,” creating a gap between legal reality and what the law states on paper.

“In Canada, [parental rights are] being actively undermined and shrunk and weakened by judges who see that as a bad thing,” Kitchen told The Epoch Times in an interview.

Meanwhile, parental rights advocate John Hilton-O’Brien, who serves as executive director of advocacy group Parents for Choice in Education, says not all hope is lost for parents in court.

He is not a lawyer, but his organization has been involved in legal cases, such as the challenge against Saskatchewan’s pronoun policy, which requires schools to obtain parental consent before changing the name and pronouns of children younger than 16.

Hilton-O’Brien argues that parents may have a better chance of success if they shift away from arguments about potential harm to children and instead focus on administrative law, specifically, whether due process was followed.

He says if judges are tasked with deciding what is in a child’s best interest, they are left to rely on individuals deemed child experts, who in many cases may be at odds with parental rights.

“If you went to court about harms, the [activist] group could overwhelm you with experts—but if it’s about administrative law, there’s only one expert in the room whose opinion counts, and that is the judge,” he told The Epoch Times in an interview.

He cited the recent U.S. Supreme Court decision in Mahmoud v. Taylor, which found that a school district’s policy barring parents from opting their elementary-school children out of lessons featuring LGBTQ-themed storybooks with sexuality and gender content violated the parents’ right to freely exercise religion by denying them control over the views passed on to their children.

The case did not focus on potential harm to children from exposure to possibly age-inappropriate content, but rather on issues of transparency, parental participation, and due process, Hilton-O’Brien said.

The advantage of focusing on administrative law is that it deals with “objective questions,” such as whether a decision involving a child was made transparently or whether the appropriate parties were consulted, he noted. If due process is properly followed, he said, the law is on the side of parents.

“So when you take this to court, make it about process, make it about administrative law,” he added.

Varied Cases

Kitchen says that although focusing on procedural fairness—an element of administrative law—can increase the chances for parental rights groups to succeed, not every legal case involves this type of argument.

“What if the decision was made in a procedurally fair manner?” Kitchen said. “It might still be a terrible decision, it might still be unlawful, it might still be very harmful.”

In such cases, parents may still have to resort to the harm argument, he said.

“Sometimes you have to focus on the harm—you don’t have a choice, because that is the only argument you’ve got,” Kitchen said.

He previously represented a British Columbia father who was legally barred from publicly using his name while fighting in court to prevent his child’s gender transition.

In that legal case—which concluded before Kitchen began representing the father to lift the name restriction order— the court sided with the child, citing expert medical assessments that deemed the child a “mature minor” capable of consenting to hormone treatment without parental approval.

The father had argued the transition was not in the child’s best interests and that excluding him violated his parental rights. The court rejected his argument, saying he was acting against his child’s interests—as determined by health-care providers at a gender clinic.

Kitchen said that in cases where the child’s interests are open to subjective interpretations, parents should find a lawyer who understands their concerns and is willing to make the necessary arguments without hesitation—even if it means facing criticism or labels such as “transphobe” when it comes to gender identity cases involving children.

Experts in Court

Ontario-based lawyer Lisa Bildy, who specializes in civil liberties and individual freedoms, said the situation of expert witnesses in court can differ between parties, noting that advocacy groups often have more funding to hire experts, including some based in academic settings.

Experts whose testimony may aid the side of parental rights advocates often face additional social pressure, including the risk of being labelled in certain ways, which may add to their hesitation to come forward, Bildy said.

“Experts with concerns about gender ideology tend to be clinicians or physicians on the front lines, who also face the possibility of regulatory discipline if they are seen to be ‘anti-trans,’ making them reluctant to get involved publicly,” she told The Epoch Times.

When administrative law arguments are available in parental rights cases, they can offer a “less ideological or controversial” approach in court, Bildy said but added that experts affiliated with activist groups may still influence court decisions.

“Advocates will likely still bring their experts and studies and emotional arguments about harm to the court, and there’s no guarantee it won’t be persuaded by that,” she said.

Kitchen said it requires a good lawyer and strong convictions to make the case for parental rights.

“It’s tough. It’s not easy,” he said. “But first thing you have to do is get the right lawyer to be able to handle it, and recognize that when you are engaged in a case like this, it’s not purely legal.”