“In many cases where the court declined to make a therapeutic order, the court was not satisfied based on the evidence adduced that the proposed therapeutic intervention would be beneficial to the child (See for example Snider v. Laszlo, [2009] O.J. No. 5032, Silver v. Silver and E.H. v. O.K.). The presence of a professional assessment or opinion clearly setting out the cause(s) of a child’s distress or the family’s dysfunction(s), and the means to address same, will go a long way in convincing the court to make the order, even in the context of a motion for temporary relief.
Therapeutic orders sought in the context of a motion, based on untested and contradictory evidence or without a professional assessment, may run the risk of not properly addressing the issues that they mean to resolve. On the other end, delays in imposing therapeutic orders in situations of high conflict may increase the risks associated with unjustified rejection, estrangement and alienation. In the presence of such family dysfunction, the longer a child or parent goes without therapeutic intervention and (as is often the case) without access, the more difficult it will be to repair the relationship (McClintock v. Karam, para. 34).
In Testani v. Haughton, Justice Jarvis J. stated that resistance to therapy was an important factor to consider, but that it was not the determining factor as to whether such an order should be made. There may be various reasons for a parent’s resistance to therapeutic intervention; the parent may not be satisfied that the cause of the breakdown in the child-parent relationship has been properly identified; the parent may feel that therapy is premature and that other steps must first be completed; the parent may lack the financial resources to retain the recommended therapist, and/or; the parent may not wish to have to physically force a resistant child to attend counselling. The court should assess the likelihood that a parent will comply with a therapeutic order once it is made, despite that parent’s professed refusal to engage.
In more severe estrangement or alienation cases, courts have often imposed therapeutic orders despite the alienating parent’s strongly voiced objections to counselling or therapy (see L. (J.K.) v. S. (N.C.), McClintock v. Karam, C. (W.) v. E. (C.), Spencer v. Beier and Hazelton v. Forchuk). Courts may also resort to “strong judicial recommendations” (without making an order) that the custodial or favoured parent engage in therapy and/or ensure a child’s regular and meaningful participation in same, failing which a change in custody will be considered.
Since children are not parties to the family law proceeding, courts do not have the power to make orders compelling them to engage in therapy or counselling. However, courts can order parents, as custodians of their children, to ensure their timely attendance therein. As stated in C. (W.) v. E. (C.), children do not always get to do whatever they want, nor do they always get to refuse to do things that they are otherwise required to do (see also Snider v. Laszlo, and McClintock v. Karam).
This being said, the older a child is, the less likely that he will meaningfully engage in a therapeutic process that is imposed upon him despite his clearly voiced refusal to do so. When an older or more mature child is strongly objecting to a therapeutic process, it may be inappropriate to make the therapeutic order. Such was the court’s conclusion in Sine v. Bannister (16 year old), in Karwal v. Karwal (17 year old), and in Mattina v. Mattina, 2017 ONSC 5704 (CanLII), affirmed at 2018 ONCA 641 (CanLII) (17, 16 and 10 year olds).
I am of the view that in ascertaining a child’s willingness to engage in a therapeutic process, the court should consider the following:
a. How old is the child?
b. Is there clear evidence about the child’s willingness/unwillingness to engage (or re-engage) in counselling? (courts should be cautious when the only evidence of a child’s alleged strong resistance to therapy comes from the “favoured” parent)
c. Are there ways in which a court could convince an older child to cooperate? (By involving a child’s counsel? By offering an opportunity to meet with the judge? By any other means?)
If the court does exercise its discretion to make a therapeutic order, the therapist tasked with providing the service should be clearly identified or, alternatively, a judicially supervised process for the identification and appointment of such therapist should be clearly set out in the order. There should also be close judicial monitoring of the parties’ ongoing compliance with the therapeutic order to ensure regular and meaningful participation by all parties involved.
With the greatest of respect for those who hold a different view, I am of the view that family courts do have an obligation – and a responsibility – to sometimes monitor such petty things as parties’ adherence to a therapeutic schedule. That responsibility lies upon the court as a result of its duty to promote the best interests, protection and well-being of children.
The recognition that family litigants often need additional resources, assistance and judicial persuasion to settle their disputes was acknowledged and recognized by the codification of active case management in our Family Law Rules. Court orders in family law cases, particularly those involving children, often fall on deaf ears when the case involves highly conflictual parents who have failed to put their children’s well-being above their dysfunctional relationships with each other. The court has a duty to ensure that orders are promptly complied with and must be in a position to take swift actions if they are not, failing which children will undoubtedly suffer (excellent examples of such orders can be found in Berhanu v. Awanis, N.H. v. J.H., C. (W.) v. E. (C.), S.D.M. v. P.M., and Rea v. Rea).”
Leelaranta v. Leelaratna, 2018 ONSC 5983 (CanLII) at 72-81
