C.B. v. E.G., 2023 ONSC 1571 - Factors to Consider Before Seeking an Order for Therapy
November 8, 2023
Written by the JJ Team and Nikki Pangilinan
Orders for reunification or reconciliation therapy are increasingly being sought by parties where resist/refuse dynamics are identified by a party in litigation before the court. The Court’s ability to order therapeutic intervention has been the source of conflicting rulings from the Ontario Superior Court. In 2018, Justice Audet in Leelaratna v. Leelaratna, 2018 ONSC 5983 finally clarified that courts indeed have the power to order therapy under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) and Children’s Law Reform Act, R.S.O. 1990, c. C.12.
Justice Audet interestingly noted that therapy for the child in Leelaratna did not meet the definition of “treatment” under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (HCCA), which meant that parental consent could be dispensed with (note that under the HCCA, parental consent cannot be dispensed with where the therapeutic intervention is considered to be a “treatment” to be provided by a “health practitioner” under the HCCA).[1] Despite the court’s clear power to order therapy, the withholding of consent from either or both parties and resistance from children, can complicate the decision of whether or not an order for therapy should, in fact, be made. A case which illustrates the difficulty of balancing these practical considerations is the recent decision of Justice L. Bale in C.B. v. E.G., 2023 ONSC 1571.
The father in this case expressed a fervent wish to re-establish a severed connection with his child (age 16) through an order for reconciliation therapy (therapy) While the Court sympathized with the father’s position, the Court stated that that it would only consider the best interests of the child and that subject child alone.
The Court also emphasized that in its determination of whether an order for therapy should be made, a child’s age and evolving capacity for autonomous decision-making is a significant factor. In other words, the child’s views and preferences would carry greater weight as the child grows older. While the Court in this case acknowledged that therapy could facilitate a stronger and healthier relationship between the child and her father, it decided that the mental health risks of forcing a child with a “mature opposition” to therapy outweighed any potential benefits. The Court, in considering the practical reality of the situation, decided that ordering therapy was not in the child’s best interest at the time and dismissed the father’s motion to order therapy.
FACTS
In C.B. v. E.G., the Applicant Father sought a motion for therapy to repair his relationship with one of his two children, “D,” who was 16 years old at the time of the motion. The Respondent Mother and the Office of the Children’s Lawyer (OCL), on behalf of D, opposed the Father’s request.
The parties had joint and shared decision-making responsibility for the children and the parenting schedule provided for the children to share their time equally in both homes from “time to time” pursuant to a Separation Agreement. Despite the parenting schedule set out in the parties’ Separation Agreement, the children–on average–spent more time in the Applicant Father’s than in the Respondent Mother’s home since May 2020. Then, one day in late May 2020, the status quo suddenly changed. Without warning and absent an obvious triggering event from the Father’s perspective, the children refused to transition back into the Father’s care. The relationship between the Father and D continued to deteriorate since that time and by the time he brought this motion, he had not had any parenting time with D since July 2020.
The Father believed the Mother to have purposely undermined his relationship with D and that as a result, D’s life had gone into decline as he observed that she has since suffered mentally, physically, academically, and socially since he last spent time with her. The Father explained that D, who previously enjoyed academic success, had dropped out of her academic courses, refused to attend school in person, and had a poor (online) attendance record. He believed that she had withdrawn from her previous cycle of friends to her social detriment. The Father sought several orders pertaining to facilitating therapy as he believed it would be in D’s best interest. The Mother denied causing the fallout between the Father and D, and the OCL expressed D’s strong wishes not to have contact with her Father.
THE LAW
The Court has the authority to make an order for therapy pursuant to sections 24(2) (best interests of the child provision) and 28(1)(b) and (c)(viii) of the Children’s Law Reform Act, RSO 1990, c C 12 (CLRA).
Parenting orders and contact orders
28 (1) The court to which an application is made under section 21,
…
(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and
(c) may make any additional order the court considers necessary and proper in the circumstances, including an order
…
(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. 2020, c. 25, Sched. 1, s. 6.
…
In deciding whether to make the order for therapy, the Court reviewed the usual best interest of the child CLRA provisions in conjunction with guiding principles from Jarvis, J. in Testani v. Haughton, 2016 ONSC 5827 at para. 18:
Orders for reunification therapy should be made sparingly;
There must be compelling evidence that the therapy will be beneficial;
The request must be adequately supported by a detailed proposal identifying the proposed counselor and what is to be expected;
Resistance to therapy is an important factor but is not the determining factor whether such an order should be made;
Where a clinical investigation or assessment is underway, no order should be made pending their conclusion; and
Wherever practical, appropriate direction should be given to the counselor/ therapist and a report made to the court;
and from Audet, J. who added additional guiding principles in Leelaratna v. Leelaratna, 2018 ONSC 5983 at para. 69:
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?
At what stage is the therapeutic order sought?
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 uncooperative parent?
Is the child likely to voluntarily engage in counselling therapy?
The Court also referred to the HCCA, which prohibits the administration of treatment of a capable person without their informed consent. However, there is some debate on whether reconciliation therapy falls within the definition of “treatment.” It is to be determined on a case-by-case basis according to Justice Audet in Leelaratna para. 66:
[66] I am of the view 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. While there is no doubt that individual and family counselling, if successful, will have a significantly positive impact on everyone’s health, their goal will usually be to address stress management strategies and inter-relationship management strategies. As such, such therapeutic interventions will not be “health-related” and, if they are, they will usually pose little or no risk of harm. The risk of harm, particularly to children, will often reside in NOT administering them. This being said, the question as to whether a specific therapeutic intervention is a treatment pursuant to section 2 of the HCCA needs to be determined on a case-by-case basis.
In this case, the Court found the HCCA did not apply.
WEIGHING THE VIEWS AND PREFERENCES OF THE CHILD
While the HCCA was not applied in this case, the Court’s awareness of D’s opposition to therapy was still relevant. D’s instructions to the OCL opposing the therapy were direct, detailed, and unwavering. D also appeared to have the intellectual capacity and life experience necessary to understand the request before the Court. Thus, the Court afforded D’s views and preference considerable weight.
It is settled law that courts may compel compliance with an order for therapy, even if a mature minor does not consent. However, in the specific circumstances of this case, it was evident that D was very unlikely to voluntarily engage in the therapy and the Court knew it would be unreasonable to expect that the order for therapy would be implemented. The Court also noted that D was already engaged in individual therapy and instead, encouraged D to bring up the topic with her therapist so she may move to repairing her relationship with her Father when she is ready.
CONCLUSION
The Father’s motion for therapy to support his relationship with D was dismissed. The Court determined that the order for reconciliation therapy between D and her Father was not in D’s best interest. In making the decision, the Court placed great weight on D’s views and preferences.
[43] It is clear from the materials filed that the Applicant loves D and genuinely wishes to reestablish their connection. The court has the utmost sympathy for the sense of loss that the father is experiencing as a result of this fractured relationship. However, this court must not lose focus: it is the best interests of D, and D alone, that the court must be concerned with. [emphasis added] It is understandable that the Applicant did not wait to address this issue at trial, with the benefit of more fulsome viva voce evidence. Time was not on his side. This court remains hopeful that D will accept that the father’s motion was brought from a place of good intention - to work towards repair, and that she will one day return to a place where she is open to a relationship with the Applicant. If and when D wishes to engage in future therapy with her father, I expect that it will likely fall to him to fund the cost of same. As a result, I am not inclined to order any costs against the father for pursuing this motion, despite his lack of success (See C.B. v. E.G., 2023 ONSC 1571 at para. 43).
COMMENTARY
The Court wrestled with the evidence on this short motion, argued on the strength of Affidavit material alone. Justice Blake was left in doubt as the true cause of the current contact issues between the Father and D, but did recognize that parent and child had enjoyed a close historical bond. And, while the Court recognized that the Father had provided able care to D, it was the Court’s impression that D’s somewhat complex medical and emotional needs were being met in the care of the Mother.
What seemed to move the needle in the Mother’s favour on this motion was the clear and unequivocal views and preferences of D. She did not want to be forced into family therapy involving the Father.
We query whether this case would have been decided differently if the child had been 14 or 15 years old instead of 16 years old and did not demonstrate a “mature opposition” to the therapy. Maybe the assessment of a child’s “maturity” is not an easy one since the courts have noted that it must balance between mature adolescents’ “strong claims to autonomy and the duty of the court to act protectively” (See C.B. v. E.G. at para. 22). It will be interesting to follow future decisions involving older children and orders for therapy to see how the law will evolve in this area.
For the Father, this result was no doubt devastating. He will have to make the difficult decision to either pursue further litigation or adopt a wait and see approach to allow for D to return to a place where she is open to a relationship with him. In these cases, it is often helpful for the parent in D’s shoes to have his own therapeutic advice about how best to communicate loving, supportive messages to D to ensure that she knows that he loves her and wants to repair their relationship (to facilitate a path back to him in the future).
[1] See Leelaratna at paras. 53-67 for a discussion on what constitutes “treatment” and “health practitioner” under the HCCA.
To learn more about these issues, please contact Joelle Ruskin at jruskin@jjfamilylaw.ca or Jessica Braude at jbraude@jjfamilylaw.ca.
This publication is a general discussion of certain legal developments and should not be relied upon as legal advice.