“With the greatest of respect, I do not agree that Kaplanis v. Kaplanis, stands for the principle that therapeutic orders should not be made without the parties’ consent. In Kaplanis, and while the court acknowledged that the legislation did not specificallyauthorize the making of a therapeutic order, it recognized that some trial judges had found inherent jurisdiction to do so without stating whether or not it agreed with their conclusion. In that case, the Ontario Court of Appeal found that the trial judge had erred in ordering the parties to attend counselling, not on the basis of lack of jurisdiction, but based on the absence of evidence that would support a finding that the parties would be able to carry out the order (no evidence that the parents would cooperate in the process, no stated process for the appointment of a counselor in case of disagreement, etc.).
Although the issue of jurisdiction was not specifically discussed by the Ontario Court of Appeal in Fiorito v. Wiggins, 2015 ONCA 729, 69 R.F.L. (7th) 5(Ont. C.A.), it is important to note that the court found no error in the trial judge’s decision to limit the alienating mother’s access to weekly therapy sessions with a psychologist in a severe alienation case.
There is a wide variety of orders that courts routinely make in the context of adjudicating on custody and access matters, the nature of which is not specifically set out in the CLRAor the DA. For instance, orders requiring a parent to complete a parenting course; deciding in which school or in which activities a child will be registered; whether a child will be allowed to travel to a specific country; or whether a child will be raised in a particular faith or educated in a particular language. The courts have always relied on the wide powers granted to them pursuant to sections 28 of theCLRAand 16 of the DA, and rightly so in my view, as authority for them to craft the order (including multi-directional orders) that meets the best interest of a particular child when parents cannot agree.
Rule 31(5) of the Family Law Rulesalso gives the court the power to make a therapeutic order if appropriate in the context of a contempt motion to force a non-compliant and/or alienating parent to change his or her ways as it relates to the well-being of a child (see Starzycka v. Wronski, 2005 ONCJ 329(Ont. C.J.)).
In addition to the above, rule 17(8)(b) of the Family Law Rulesspecifically confers upon the court the power to make an order at a case conference, settlement conference or trial management conference, requiring a party to attend a program offered through a community service or resource. While one may question whether the term “program” includes therapy or counselling, in light of the court’s duty to promote active management of family cases, which includes encouraging and facilitating the use of alternatives to the court process (rule 2(5)), I am of the view that a large and liberal interpretation of the word “program” so as to include some forms of therapeutic intervention is warranted and appropriate in a family law context.
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.”