In a recent decision, an Ontario court was asked to rule on a number of outstanding and contentious issues stemming from a divorce including a requirement for the father to be required to follow strict diet restrictions for his children when they were in his care.

A Brief History of the Family

The parties were married for 9 years before ultimately separating during the Christmas holidays in 2013. They had four children together, Z (born in 2005), L (born in 2008), I (born in 2010), and M (born in 2013).

Three of the four children have special needs. Z was diagnosed on the autism spectrum, has ADHD, and a fructose intolerance. L has Oppositional Defiance Disorder, ADHD, and general aggression issues. M exhibits signs of autism, has behavioural and developmental issues, and was diagnosed with a speech delay.

Under the terms of a Separation Agreement executed by the parties, the mother had sole custody of the children following the separation, and they were to live with her until they each turned 16, at which time the choice of where to live would be theirs to make.

Since the parties’ separation, the mother had always been the children’s primary caregiver, with the father exercising his right to overnight access sporadically (1 overnight in 2014, less than 15 overnights in 2015, and 35 overnights in 2016).  It was not until 2017 that the father had all four children in his care at one time, and that was only at the mother’s insistence (prior to that he visited the daughters and son separately). At the time of the hearing, the father was living in Bermuda but travelling to Canada monthly for 10 day stretches at a time.

The Children’s Dietary Restrictions

The Mother’s Position

The mother claimed that she has invested significant time and energy into learning how to support the children’s needs and how to stabilize their symptoms using medication and diet.

She argued that based on research she had done, a gluten-free and dairy-free diet was shown to have positive effects on children with autism and ADHD. She asked the court to order the father to adhere to such a diet when they were in his care.

The Father’s Position

The father acknowledged that Z and L had special needs but disputed gluten’s effect on their behaviour. He stated that he had consulted with the children’s doctors who had told him that gluten was unlikely to have any impact on their behaviour.

He went on to list the mother’s own long list of dietary restrictions which he believed illustrated her own “obsession” with food and her need to link the children’s behaviour to their diet.

Information from the Pediatrician

Z and L’s pediatrician wrote a letter to the mother’s lawyer in July 2017, noting that “with respect to gluten, there is some evidence that this type of diet can be helpful for children who fall into the spectrum” and, with respect to L specifically “she has also, to the best of my knowledge, been on a gluten-free diet, certainly with Mom and Mom feels that she is doing much better.”

Beyond making these observations, the pediatrician did not actually prescribe a gluten-free diet.

The Court’s Analysis

The court largely discounted the pediatrician’s letter on the basis that it only reported what the mother had told him, thus constituting double hearsay and having very little probative value.

The court noted that it was reluctant to make the mother’s dietary demands a term of any court order without more persuasive evidence. To do otherwise would expose the father to allegations of a breach of a court order.

However, the court also noted that the children were spending most of their time in the care of their mother and it would be problematic if the father completely ignored her concerns, additionally noting “[t]his is a high conflict case. The parties do not need to be looking for new ways to antagonize each other.”

The court further noted that

There is high conflict between their parents and there are opposing views from the parents with regard to the children’s special needs. It is apparent that this conflict is negatively impacting the children. As is common in cases such as this, the parents easily find fault with each other and blame the other for the difficulties the children may be experiencing.  The harder task is to find a shared parenting plan that promotes the best interests of these children.

The court concluded by ordering that the father was to respect the children’s current dietary regime “within reasonable limits.”

How Can a Family Lawyer Help?

After a separation or divorce, navigating family life, trying to make decisions with your former spouse, and attempting to resolve ongoing disputes can be challenging and emotional, particularly as they relate to children.

Separated parents can often find themselves fighting over the daily elements of their children’s lives including where they should go to school, what extracurricular activities they should (or should not) participate in, and even issues such as a child’s diet. Where, as in this case, parents blame one another for any challenges their children may encounter, the matter is unlikely to reach a swift resolution (or any).

If you are involved in an acrimonious battle with your former spouse over details pertaining to your children, it is best to consult with an experienced, compassionate family lawyer. A family lawyer can help you see the forest through the trees in order to have constructive discussions with your ex, and to ensure that the best interests of your children are protected.

As the oldest independent law firm in Waterloo region, and one of the oldest in the province, Duncan, Linton LLP has been providing clear, effective and strategic legal advice, including family law advice, to clients for over a century. Call us at (519) 886-3340 or contact us online for a consultation.