Written on behalf of Feigenbaum Consulting
In a recent Ontario family law case, the court was presented with an unusual request: the mother asked that the father be compelled to feed their children a gluten-free diet.
The parents in this case were involved in ongoing disputes regarding access, custody and child support issues relating to their four children, whose ages ranged from five to 13. The parents had married in 2004 and separated during the Christmas holidays of 2013.
Both parents brought several motions and cross-motions. Among others, the parties asked the court to decide access, custody and child support issues. The parties had signed a separation agreement; the mother was not seeking to set aside the agreement, but was rather asking the court to interpret it and enforce it.
The court otherwise settled most of the issues raised by the parents under the agreement, but also had to decide the mother’s unusual request for a court order that the father be required to follow a specific diet when the children were in his care.
Three of the four children have special needs. The oldest child was diagnosed on the autism spectrum and has ADHD; a medical report also indicated that she is intolerant to fructose. The second-oldest child has “opposition defiance disorder” and ADHD; the mother said that she has general issues with aggression. The mother also stated that the youngest child had exhibited signs of autism, though a medical test concluded he was not on the autism spectrum. However, according to the mother, he exhibits behavioural and developmental issues and has been diagnosed with speech delay.
In support of her request, the mother said that she had invested significant time and energy into learning how to support the children’s needs and how to stabilize their symptoms through medication and diet. According to her own research, she was led to believe that gluten-free and casein-free diets can have positive effects on children with autism and ADHD. She therefore asked that the father be ordered to adhere to such dietary requirements.
The father acknowledged that two oldest children have special needs, but he disputed the effect of gluten on their behaviour. He said he had consulted the children’s doctors about the effect of gluten and that they told him that gluten was unlikely to have any impact on behaviour. In the father’s opinion, the mother has her own obsession with food; he listed her long list of dietary restrictions and stated that he believes they illustrate the mother’s need to correlate everything about the children’s behaviour to what they eat.
The court reviewed the evidence provided by the children’s pediatrician in the form of a letter. The letter said that, for the oldest child, “with respect to gluten, there is some evidence that this type of diet can be helpful for children who fall into the spectrum.” It also discussed the second-oldest child and said: “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….”
However, the court noted that the pediatrician did not actually go so far as to prescribe a gluten-free diet. The court concluded:
“[The pediatrician’s] letter only reports what the [mother] has told him; this is double hearsay and has very little probative value. I am reluctant to make the [mother]’s dietary demands a term of any order without more persuasive evidence. To do so would expose the [father] to allegations of a breach of a court order. At the same time, the children are spending most of their time in their mother’s care and it is problematic if the [father] ignores her concerns altogether. This is a high conflict case. The parties do not need to be looking for new ways to antagonize each other.”
As a result, the court simply issued an order that the father must “respect the children’s dietary regime within reasonable limits”, without making an order for any specific diet or requirements.
At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269or toll-free at (877) 275-4792 to book a consultation.