An Ontario court recently considered an interesting case where the question of whether a party’s spouse and/or children can be ordered to attend therapy was raised.
The parties were married in July 2001 and separated in April 2009. The parties had two children of the marriage: C, born in May 2003, and R, born in December 2005.
In December 2012, a divorce order was made. Among other things, the order granted the parties joint custody of the children. The mother was awarded primary residence, while the father was given reasonable access to the children in accordance with a schedule attached to the order.
The father’s work schedule had changed a number of times since the order was made. According to the father, the mother had refused to change the access schedule (notwithstanding the changes in his work schedule), which resulted in his time with the children being reduced from just under 40% of the time to 10-15% of the time. According to the mother, she had tried to accommodate the changes in the father’s schedule, but it had been extremely difficult to reach any compromise.
C stopped wanting to stay overnight with the father in the fall of 2016, and since August 2017, had refused to see the father or communicate with him.
The father was concerned about the breakdown in his relationship with C and felt that his relationship with R had started to deteriorate as well. He believed that the fractured relationship with his children was a result of the mother’s actions to “systematically alienate” the children from him.
The father brought a motion requesting an order that the parties and their children attend a multi-day family therapy intervention program.
The court began by outlining that the entire construct of parental alienation is a matter of considerable debate. Given that it is a serious allegation, courts in the past have held that expert evidence is required to support a finding of alienation and a finding that a proposed response (including a family reunification program) is in the best interests of the children.
The court also explained that the question of whether it had the jurisdiction to compel someone to attend counselling was not “clear cut”, as the legislation does not specifically authorize the court to make such an order. The court noted that even if the legislation could (by inference) confer jurisdiction to order a party to attend counselling, the court of appeal had held that any order for counselling requires the cooperation of the parents and an agreement on the counselling process.
Furthermore, the court outlined that the Health Care Consent Act, 1996 (the Act), stipulates that a health care practitioner cannot administer any treatment without consent (assuming the party in question has capacity to provide consent).
The Court’s Decision
The court found that the father had not established that the cause of the breakdown in his relationship with the children had been a result of alienation by the mother. Without expert evidence to support the father’s notion that his strained relationships were a result of alienation, it was equally possible that the estrangement arose out of the father’s conduct towards the mother and the children.
The court concluded that, in this case, the father had not established that his request to make an order for counselling could be granted given that counselling required the cooperation of both parties (and in this case, the mother rejected the proposal for family therapy intervention).
The court noted that the mother was not willing to sign the forms required for the proposed program. Furthermore, the court found that even if the program materials did not themselves require the mother’s consent, given that the proposed therapy constituted “treatment” under the Act, the mother’s consent (and presumptively, the consent of the children) would be required for it to make such an order in any event.
Finally, the court indicated that it would require evidence of the likely success of the program and the financial ability of the mother to pay one-half of those costs (in this case, between $12,000 and $20,000) before it could compel the parties to attend counselling.
In dismissing the father’s motion to order the mother and children to participate in the therapy program, the court reiterated the words of another Ontario court judge:
The legal system does not have the resources to monitor a schedule of counselling (nor should it do so). The function of Family Court is not to change people, but to dispose of their disputes at a given point in time. I preside over a court, not a church.
If you are hoping to attend counselling with your spouse, you should ensure you have their cooperation and consent. If you need help or have questions about your separation or divorce, contact Gelman & Associates. Our knowledgeable, results-oriented lawyers seek to empower clients to make informed decisions following the breakdown of a relationship. In addition to our firm’s handbook on separation and divorce and numerous web-based resources, all prospective clients are given a comprehensive family law kit during their initial consultation, with detailed information and resources to help individuals understand and navigate the separation and divorce process.
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