# Winnipeg Child & Family Services v DFG 1997

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    [1997] 3 S.C.R. Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.) 925
    Winnipeg Child and Family Services (Northwest Area) Appellant
    v.
    D.F.G. Respondent
    and
    [a long list of interveners, excised from this version]
    Indexed as: Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.)
    File No.: 25508.
    1997: June 18; 1997: October 31.
    Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
    ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
    Torts — Negligence — Duty of care — Mother and unborn child — Pregnant mother addicted to glue sniffing — Superior court judge ordering detention and treatment of mother to prevent harm to unborn child — Whether law of tort should be extended to permit order — Whether appropriate for court to change law of tort.
    Courts — Jurisdiction — Parens patriae — Pregnant mother addicted to glue sniffing — Superior court judge ordering detention and treatment of mother to prevent harm to unborn child — Whether parens patriae jurisdiction should be extended to protect unborn child — Whether appropriate for court to change law of parens patriae.
    In August 1996, the respondent was five months pregnant with her fourth child. She was addicted to glue sniffing, which may damage the nervous system of the developing fetus. As a result of her addiction, two of her previous children were born permanently disabled and are permanent wards of the state. On a motion by the appellant, a superior court judge ordered that the respondent be placed in the custody of the Director of Child and Family Services and detained in a health centre for treatment until the birth of her child. One of the grounds for the order was the court's parens patriae jurisdiction. The superior court judge, while acknowledging that the courts have never exercised this power on behalf of an unborn child, saw no reason why the power should not be extended to protect unborn children. The order was later stayed and ultimately set aside on appeal. The Court of Appeal held that the existing law of tort and of parens patriae did not support the order and, given the difficulty and complexity entailed in extending the law to permit such an order, the task was more appropriate for the legislature than the courts.
    Held (Sopinka and Major JJ. dissenting): The appeal should be dismissed.
    Per Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ.: The law of Canada does not recognize the unborn child as a legal person possessing rights. This is a general proposition applicable to all aspects of the law. Once a child is born, alive and viable, the law may recognize that its existence began before birth for certain limited purposes. But the only right recognized is that of the born person. Any right or interest the fetus may have remains inchoate and incomplete until the child's birth. It follows that, under the law, the fetus on whose behalf the appellant purported to act in seeking the detention order was not a legal person and possessed no legal rights. There was thus no legal person in whose interests the appellant could act or in whose interests a court order could be made. Putting the matter in terms of tort, there was no right to sue, whether for an injunction or damages, until the child was born alive and viable. Since the action at issue was commenced and the injunctive relief sought before the child's birth, under the law as it presently stands, it must fail.
    As well, courts do not have parens patriae jurisdiction over unborn children. The power of the court in parens patriae, as it stands, does not therefore support an order for the detention and treatment of a pregnant woman for the purpose of preventing harm to the unborn child.
    As a general rule, judicial change to common law principles is confined to incremental change based largely on the mechanism of extending an existing principle to new circumstances. Courts will not extend the common law where the revision is major and its ramifications complex. To extend the law of tort to permit an order for the detention and treatment of a pregnant woman for the purpose of preventing harm to the unborn child would require major changes, involving moral choices and conflicts between fundamental interests and rights. Recognition of a fetal action against the mother for lifestyle choices would affect women, who might find themselves incarcerated and treated against their will for conduct alleged to harm the fetus. The proposed changes to the law have complex ramifications impossible for a court to fully assess, giving rise to the danger that the proposed order might impede the goal of healthy infants more than it would promote it. Taken together, the changes to the law of tort that would be required to support the order at issue are of such magnitude, consequence, and difficulty in policy terms that they exceed the proper incremental law-making powers of the courts. These are the sort of changes which should be left to the legislature.
    Similarly, to extend the court's parens patriae jurisdiction to permit protection of unborn children would require a major change to the law of parens patriae. The same problems encountered in relation to extending tort law to the unborn arise in relation to extending the parens patriae jurisdiction of the court. The ramifications of the change would be significant and complex, since such change involves conflicts of fundamental rights and interests and difficult policy issues. A pregnant woman and her unborn child are one and to make orders protecting fetuses would radically impinge on the fundamental liberties of the mother, both as to lifestyle choices and how and as to where she chooses to live and be. The invasion of liberty involved in making court orders affecting the unborn child is far greater than the invasion of liberty involved in court orders relating to born children. In the latter case, the only liberty interest affected is the parent's interest in making decisions for his or her child. By contrast, extension of the parens patriae jurisdiction of the court to unborn children has the potential to affect a much broader range of liberty interests since the court cannot make decisions for the unborn child without inevitably making decisions for the mother herself. Such a change would not be an incremental change but a generic change of major impact and consequence. It would seriously intrude on the rights of women. If anything is to be done, the legislature is in a much better position to weigh the competing interests and arrive at a solution that is principled and minimally intrusive to pregnant women.
    Per Sopinka and Major JJ. (dissenting): The superior court judge was within his jurisdiction under parens patriae to order the respondent to refrain from the consumption of intoxicating substances, and to compel the respondent to live at a place of safety until the birth of her child. The jurisdiction available under parens patriae to act in the best interests of a child should include the power to act in the best interests of a fetus. The parens patriae jurisdiction exists for the stated purpose of doing what is necessary to protect the interests of those who are unable to protect themselves. A fetus suffering from its mother's abusive behaviour is particularly within this class and deserves protection.
    The "born alive" rule is a legal anachronism and should be set aside, at least for the purposes of this appeal. This common law rule, which requires a fetus to be born alive before any legal rights of personhood can accrue, is an evidentiary presumption rooted in rudimentary medical knowledge not a substantive rule of law. The limited medical knowledge of the past could not determine whether a child in utero was alive at the time it was subjected to an injury unless the child was also born alive, suffering from that injury. Today's medical technology has improved to the point of eliminating nearly all of the evidentiary problems from which the "born alive" rule sprang, and it no longer makes sense to retain the rule where its application would be perverse.
    When a woman chooses to carry a fetus to term, she must accept some responsibility for its well-being and the state has an interest in trying to ensure the child's health. Since the pregnant woman has the right to decide her lifestyle, a court's ability to intervene to protect the fetus must be limited to extreme cases where her conduct has, on proof to the civil standard, a reasonable probability of causing serious irreparable harm to the unborn child. The test for state intervention is set at a high threshold because, in order to protect the fetus, the exercise of the parens patriae jurisdiction will necessarily involve an overriding of some rights possessed by the mother. The least rights-diminishing option should always be sought and the remedy of confinement should be the final option. The severe step of ordering confinement should be taken only when, on a balance of probabilities, no other solution is workable or effective. In cases such as this, confinement must be for purposes of treatment, not punishment. The mother remains free to reject all suggested medical treatment. While the granting of a remedy of confinement interferes with a mother's liberty interests, those interests must bend when faced with a situation where devastating harm and a life of suffering can so easily be prevented. In any event, this interference is always subject to the mother's right to end it by deciding to have an abortion.
    In sum, while there can be no general formula — each case must be decided on its own facts — as a minimum, to justify a state intervention the following thresholds have to be met: (1) the woman must have decided to carry the child to term; (2) proof must be presented to a civil standard that the abusive activity will cause serious and irreparable harm to the fetus; (3) the remedy must be the least intrusive option; and (4) the process must be procedurally fair. Here, the difficult test for state intervention is met. While the "slippery slope" argument has some merit, it cannot be raised as a principled bar to granting an injunction in this case. The appellant, as a governmental agency, had the requisite standing to apply for an order.