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Issues around custody and access to children can be one of the most stressful aspects of a separation or divorce. These issues can become more contentious when one parent is denied access to a child, or when one parent tries to influence the relationship between the child and the other parent. In a recent decision from the Ontario Superior Court of Justice, the court examined whether it has the jurisdiction to order reunification therapy to try to save the relationship between a father and a child.
The separation
The parties were married on February 2, 1988. They had one child, born in 2006. On May 14, 2017, the father left the country for a two week trip to deal with some urgent personal matters. He returned to Canada on May 31, 2017. Upon his return he found out the mother and the child had moved out of the matrimonial home. The father received a letter from the mother’s lawyer the next day, indicating the mother had separated from him. Three days passed without the father seeing the child. However, after retaining a lawyer he was able to arrange two visits at the child’s school.
Following these visits the father was advised through the mother’s lawyer that the child did not wish to have contact with him, and that he was anxious and upset about spending time with the father.
The father responded by applying for a court order to get parenting time and access to the child. He was eventually granted twice-weekly visits. However, by December 30, 2017, these visits were suspended due to a recommendation by the child’s doctor. The doctor stated the child continued to suffer anxiety as well as physical symptoms such as vomiting and irritable bowel syndrome in relation to visits with the father. Both the mother and the father blamed each other, with the court stating “The mother blamed that fear on the father’s own behavior and actions, whereas the father was of the view that the mother was the cause of that fear as a result of her alienating behaviours and lack of support for the father-son relationship.”
The need for therapeutic intervention
A psychologist provided a report that recommended therapy for the parents, private counseling for the child, and joint counseling for the father and child. The court agreed that it was not appropriate for the father to have access to the child at the present time, but that,
“without an integrated professional therapeutic intervention with this family, any hope to rebuild a positive relationship between (the child) and his father will be lost forever. There is simply no legal solution for this family, unless it is grounded upon, and supported by, therapeutic assistance. If this court does not have the ability to impose on the parties and their child the therapeutic order that is necessary to achieve the long-term changes in behaviours which are essential to rebuild (the child’s) relationship with his father, this court will have no power to assist this family or this child. This conclusion is rooted in my finding that, without a sustainable change in behaviour, access between (the child) and his father, in its current form, is detrimental to his mental health and overall well-being, and not in his best interests.”
Does the court have jurisdiction?
After concluding that a therapeutic order was needed, the court was left with the question of whether it had the jurisdiction to order it. After reviewing a number of cases, the court determined it did have jurisdiction under the province’s Children’s Law Reform Act, which states
28 (1) The court to which an application is made under section 21,
(a) by order may grant the custody of or access to the child to one or more persons;
(b) by order may determine any aspect of the incidents of the right to custody or access; and
(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,
(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,
(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,
(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,
(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,
(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,
(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or
(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.
Additionally, the Divorce Act states,
16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
The court determined its broad powers to address a child’s best interests allowed it to make such orders as the one before it even without express permission through legislation. The court ordered each of the parents to attend therapy as well as the counseling recommended by the psychologist.
The exceptional family lawyers at Gelman & Associates can protect your custody and access rights. We provide our clients with the information and resources they need to make informed decisions about their family law issues. We provide all of our clients with comprehensive family law kits during their initial consultation. We also offer clients a free consultation with a psychological professional when needed. Please contact us at 1-844-769-0737 or online to see how we can help you today.
