Can a Court Order a Family to Go to Reunification Therapy?

Reunification therapy is therapy designed to heal the relationship between a parent and child that has been negatively affected after a divorce.

A recent Ontario case explored a court’s ability to order families to attend reunification therapy.

What Happened?

The parents were married in London in 1988. They had one child together, born in 2006. In 2017, the father left the country for a two week trip to Sri Lanka to deal with some urgent matters that required his personal attention. When he returned to Canada two weeks later, the mother and the child had moved out of the matrimonial home. The next day, the father received a lawyer’s letter notifying him that his wife had separated from him. The father did not see his son for three days, but he immediately retained counsel and two visits were quickly arranged between he and his son at the boy’s school.

However, after the two visits, the father was advised through counsel that the son did not wish to have visits with him and that he was anxious and upset with the idea of spending time with his father. At that time, the son was almost 11 years old.

The father did not feel he was getting the parenting time that he wished to have with his son and immediately filed an application before the court seeking a shared parenting arrangement and other relief. Leave to bring a motion on an emergency basis to deal with parenting was granted a month later. The father and son continued to have limited and brief visits until the parenting motion was heard. The son continued to show strong resistance to having visits with his father.

Issues

The mainissue to be decided was whether the court had jurisdiction to make a therapeutic order compelling the parties and/or the son to engage in various types of counselling, as recommended by a registered psychologist after the completion of a comprehensive assessment.

Position of the Parties

The father took the position that the mother was alienating their son from him and sought an order for the immediate re-instatement of his access. He also argued that the court had jurisdiction to make the therapeutic orders recommended by the psychologist, including immediate reunification therapy, and asked that all parties be compelled to engage in the recommended therapeutic process.

The mother denied that she had engaged in alienating behaviours, and took the position that the broken relationship between the father and son was the result of years of abuse by the father. She argued that access was detrimental to the son’s well-being, but she would support some supervised access. The mother opposed the idea of counselling, arguing that the court did not have the jurisdiction to order such, and that, in any event, she did not have the means to pay for it. She also argued that the son should be the one to decide if, when and with whom he wished to access any additional counselling.

Decision

The court began by explaining that there exists significant controversy in Ontario about whether or not courts have jurisdiction to make therapeutic orders compelling parents and children to participate in counselling or therapy, including reunification therapy. It stated that caselaw is divided into three distinct groups: cases where the court has found that it did not have jurisdiction; cases where the court found that it had jurisdiction, and; cases where the court has assumed jurisdiction (whether or not it made the order), without explanation.

The court found that it had jurisdiction to make a therapeutic order under sections 28(1)(b) and (c) of the Children’s Law Reform Act and sections 16(1) and (6) of the Divorce Act. These sections give courts discretion to make such orders “necessary and proper in the circumstances” and as the court “thinks fit and just”. The orders are to be made on the basis of the best interests of the child.

The court stated:

“A large and liberal interpretation of the statutory and regulatory powers conferred upon the courts to make a wide variety of orders with regards to parenting, including therapeutic orders, is also entirely consistent with the courts’ duty to promote the best interests, protection and well-being of children. As is the case here, there are often no legal solutions to family problems. Therapeutic orders can be very effective tools to help the family move forward, reduce the parental conflict, and help children transition through the emotional turmoil of their parents’ litigation in a healthier way.”

The court set out the following factors in considering whether a court should make a therapeutic order:

• Is the cause for the family dysfunction (whether alienation, alignment or reasonable estrangement) clear based on expert evidence or otherwise?  If not, does it matter in light of the type of therapy proposed?
• Is there compelling evidence that the counselling or therapy would be beneficial to the child?
• At what stage is the therapeutic order sought (motion based on potentially incomplete evidence vs. trial based on full evidentiary record)?
• Are the parents likely to meaningfully engage in counselling despite their initial resistance to the making of the order? Will a strong judicial “recommendation” compel participation and cooperation by the recalcitrant parent?
• Is the child likely to voluntarily engage in counselling/therapy?

After reviewing the law and applying it to the facts of the case, the court made a therapeutic order, stating:

“It is crystal clear to me, based on the evidence before me, that without an integrated professional therapeutic intervention with this family, any hope to rebuild a positive relationship between [the son] and his father will be lost forever. There is simply no legal solution for this family, unless it is grounded upon, and supported by, therapeutic assistance.”

Get Advice

Separation and divorce are challenging for everyone involved.  When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.

At Campbell Bader LLP our family team has collectively spent more than twenty years advising clients about family disputes, including those involving high net worth individuals or complex matters.

We value and incorporate collaborative family law principles into our practice, but we’re smart enough to recognize when that approach won’t work for you and we adapt our strategy accordingly. To learn more about how we can help you, contact us online or at 905-828-2247.