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Testani v. Haughton, 2016 CarswellOnt 14573 (Ont. S.C.J.)

In this decision of the Ontario Superior Court of Justice, Justice Jarvis canvasses several issues. Primarily, Justice Jarvis undertakes an analysis of reunification therapy amidst allegations of alienation.


The parties were married for twelve years and had two children, but only one child remained a child of the marriage. The child resided with the mother and the father had not had access to the child for approximately one year. The father brought a motion for relief, including reunification therapy.

The father claimed that the mother engaged in conduct that is alienating the child from him. The Office of the Children’s Lawyer (OCL) was formerly involved following allegations of domestic violence within the family. The OCL provided a summary of the family situation which concluded that the child refused to have any access with her father due to anger that she was experiencing. As such, the OCL clinician concluded that forcing access may only damage the child’s relationship with her father and frustrate any potential relationship in the future.

Moving forward, the father argued that reunification counselling for the child should be commenced immediately. However, the wife has denied in engaging in alienating behaviour and challenged the court’s jurisdiction to order counselling. The mother argued that even if jurisdiction is established, there is insufficient evidence to make the Order sought.


Justice Jarvis begins with an overview of the Children’s Law Reform Act (CLRA). He notes that the CLRA is silent with respect to a specific authority to order counselling. However, such authority may be inferred from section 28 (1) (b) and (c) (vii) and 34 as an incident of custody or access, which provide as follows:

28. (1) The court to which an application is made under section 21,
(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,
(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.
34. (1) Where an order is made for custody of or access to a child, a court may give such directions as it considers appropriate for the supervision of the custody or access by a person, a children’s aid society or other body.

However, in Kramer v Kramer [2003] OJ 1418 37 RFL (5th) 381 (Ont SCJ), the court relied on its inherent parens patriae jurisdiction to order family counselling, noting, however, that the power to make such an order should be used sparingly.

Despite Kramer, Justice Jarvis maintained that the court is not required to rely upon inherent parens patriae to make an order that will promote a relationship between the children and their parents. Instead, the jurisdiction to order therapeutic counselling emerges from sections 24(2) and 28(1)(b)(c)(vii) of the CLRA.

After establishing the court’s jurisdiction, Justice Jarvis noted that such jurisdiction must be exercised with caution in considering the circumstances in which such an order would be appropriate, and to specifically define the parameters of third party involvement. In summary, Justice Jarvis set out the following factors to consider when crafting an Order for reunification therapy:

  1. The court may order reunification therapy. That jurisdiction arises from the provisions of sections 24 (2) and 28 (1) (b) and (c) (viii) of the Children’s Law Reform Act.
  2. Such orders are to be made sparingly.
  3. There must be compelling evidence that the therapy will be beneficial.
  4. The request must be adequately supported by a detailed proposal identifying the proposed counselor and what is expected.
  5. Resistance to therapy is important but it is not the determining factor whether such an order should be made.
  6. Where a clinical investigation or an assessment is underway, no order should be made pending the conclusion.
  7. Wherever practical, appropriate direction should be given to the counselor/therapist and a report made to the court.

In this case, Justice Jarvis held that a long period of time had passed without some kind process being implemented to repair the child’s relationship with her father. Justice Jarvis ultimately ordered that it was sensible to ascertain whether or not the family is suitable for reunification therapy and the parent’s must cooperate with the therapist regarding same.