“In A.M. v. C.H., 2019 ONCA 764, the Ontario Court of Appeal confirmed that the court has jurisdiction to make therapeutic orders, which includes reconciliation therapy. Therein, the court noted:
(a) The Health Care and Consent Act is not a controlling factor when a judge decides whether to make a therapeutic order in a parenting case (para. 47).
(b) Judges have broad authority under sections 16(a) and 16(2) of the Divorce Act and sections 28(1)(a),(b), and (c) of the Children’s Law Reform Act to make orders for counselling or therapy (paras. 49-51).
(c) Under the Children’s Law Reform Act and the Divorce Act, the child’s views and preferences are only one factor among many in determining the child’s best interests. Consequently, a child’s refusal to attend counselling is not necessarily determinative of their best interests (para. 65).
(d) Notwithstanding the court’s jurisdiction to order therapy, in the case of mature adolescents, a tension exists between their strong claims to autonomy and the duty of the court to act protectively. The ‘best interests’ standard must be interpreted in a way that reflects and addresses an adolescent’s evolving capacities for autonomous decision-making. Their wishes should carry greater weight as their maturity increases, and scrutiny of their maturity level should intensify in relation to the severity of the potential consequences of the treatment or its refusal (paras. 66-68)
(e) There are both risks and benefits to making therapeutic orders which should be considered in the context of the unique facts and specific circumstances of each case (paras. 72-74).
In determining whether the court should make an order for reconciliation counselling, the following principles are applicable:
(a) Such orders are to be made sparingly.
(b) At what stage is the therapeutic order sought (motion based on potentially incomplete evidence vs. trial based on full evidentiary record)?
(c) 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?
(d) There must be compelling evidence that the therapy will be beneficial to the child.
(e) The request must be adequately supported by a detailed proposal identifying the proposed counselor and what is to be expected.
(f) 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?
(g) Is the child likely to voluntarily engage in counselling therapy?
(h) Resistance to therapy is an important factor but is not the determining factor whether such an order should be made.
(i) Where a clinical investigation or assessment is underway, no order should be made pending their conclusion.
(j) Wherever practical, appropriate direction should be given to the counselor/therapist and a report made to the court.
See: Testani v. Haughton, 2016 ONSC 5827 at para. 18; Leelaratna v. Leelaratna, 2018 ONSC 5983 at para. 69.
This list of considerations overlaps significantly and not surprisingly with the best interests factors outlined at section 24(3) of the CLRA.”
B.J. v. D.M., 2023 ONCJ 515 (CanLII) at 38-40