“The test for determining whether a therapeutic order, such as reunification therapy, is appropriate is whether such an order would be in the best interests of the child. Within this analysis, there are other specific factors that inform the best interests test within the context of a therapeutic order as will be discussed below.
Mr. Grossi relies on A.M. v. C.H., 2019 ONCA 764. At paras 48 – 54 of A.M., the court affirmed the jurisdiction of this court to make therapeutic orders such as an order requiring the parties and child to participate in reunification therapy, based on subsections 16(1) and (6) of the Divorce Act and sections 28(1) (b), and (c) of the Children’s Law Reform Act with the support of section 17(8)(b) of the Family Law Rules. See also Audet J.’s detailed analysis in Leelaratna v. Leelaratna, 2018 ONSC 5983, accepted in A.M., at paras 40-52, outlining this court’s jurisdiction to make, and the rationale underlying, therapeutic orders that are in the best interests of the child.
The Ontario Court of Appeal in A.M. upheld the trial judge’s imposition of a reverse custody and no contact order in favour of the father, given the extreme findings of fact made against the mother based on an analysis of the best interests of the child. The trial judge had found that the mother and child were unwilling to participate in reconciliation therapy due to the mother’s persistent pattern of alienation.
It should be noted that in A.M., the Court of Appeal was hearing an appeal from a trial decision, not a motion, and found that the trial judge had not made a palpable and overriding error.
In my view, the evidence adduced for this motion falls short of the facts established in A.M.
Neither Mr. Grossi nor Ms. Da Torre raised the issue of the Health Care Consent Act in this motion. In any event, I agree with Justice Audet’s observations at para. 66 of Leelaratna that “most therapeutic orders sought in the context of family law proceedings to assist parents and children resolve their disputes, improve their relationships, manage their stress, and transition to their new family reality in a healthier way will seldom be considered “treatment” under the HCCA”. This observation was also cited favourably by the Court of Appeal in A.M.
At para. 69 of Leelaratna, Audet J. listed the factors that are generally relevant to a consideration as to whether a therapeutic order, such as the request for reunification therapy, is in the best interests of the child:
a) Is the cause for the family dysfunction (whether alienation, alignment or reasonable estrangement) clearly based on expert evidence or otherwise? If not, does it matter in light of the type of therapy proposed?
b) Is there compelling evidence that the counselling or therapy would be beneficial to the child?
c) At what stage is the therapeutic order sought (motion based on potentially incomplete evidence vs. trial based on full evidentiary record)?
d) 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?
e) Is the child likely to voluntarily engage in counselling/therapy?”