Jurisdiction to Make a Therapeutic Order
Health Care Consent Act of Ontario, Divorce Act and the Children's Law Reform Act Leelaratna v. Leelaratna, 2018 CarswellOnt 16633 (Ont. S.C.J.)
The parties separated in May of 2017. They had one child together, who at the time of separation was 11 years old. The child was very resistant to attending access visits with the father. The family went to counselling together, where the counsellor recommended that the child see a psychologist.
The counselling was short-lived, as the counsellor terminated her services with the family in March of 2018. She cited escalating concerns relating to in-session and between-session events. It was her belief that the sessions had become a source of strain and turmoil for the child, rendering them more damaging to the father-child relationship than helpful.
A psychologist was retained on consent of both parties. He made several recommendations for therapeutic intervention for the family, including an anxiety management program for the father, therapy for the mother to help her gain self-awareness, private counselling sessions for the child, and joint sessions for the father and child.
Justice Audet was then faced with the task of determining whether the court had jurisdiction to Order and enforce compliance with these recommendations.
Justice Audet points out that the case law can be divided into three distinct groups:
(i) cases where the court has found that it did not have jurisdiction;
(ii) cases where the court found that it did have jurisdiction and;
(iii) cases where the court has assumed jurisdiction without any analysis of its right to do so.
Justice Audet, after a thorough review of the case law, concludes that the court does indeed have jurisdiction to make a therapeutic order pursuant to section 28(1)(b) and (c) of the Children’s Law Reform Act as well as pursuant to section 16(1)(6) of the Divorce Act. These sections confer power on the court to make orders respecting any aspect of custody or access. She determined that counselling does not engage the Health Care Consent Act (HCCA) and that counselling did not meet the definition of ‘treatment’ under the HCCA.
Psychologists and psychotherapists are regulated health professionals governed by the Health Care Consent Act. However, registered social workers are not governed by the HCCA. Therefore, a court has power to make an order to engage in therapy without the consent of the party. Her Honour seems to acknowledge that therapeutic orders sought in the context of family law proceedings assist parents and children in resolving their disputes, improving their relationships, managing stress, and helping to transition to their new family reality. As such, such therapeutic interventions would not be "health-related" and, if they were, they would usually pose little to no risk of harm. The risk to parties and their children will often reside in a lack of counselling intervention.
Once established, the Court does have jurisdiction to make a therapeutic order and that it can be done in the face of the HCCA. The Court then discusses the factors relevant to the decision to make a therapeutic order.
Justice Audet sets out some additional factors, including:
(a) 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?
(b) Is there compelling evidence that the counselling or therapy would be beneficial to the child?
(c) At what stage is the therapeutic order sought (motion based on potentially incomplete evidence v. trial based on full evidentiary record)?
(d) 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 recalcitrant parent?
(e) Is the child likely to voluntarily engage in counselling/therapy?
Justice Audet recognized that children are not parties to the proceeding and the courts do not have the power to make orders compelling them to engage in therapy or counselling. However, courts can order parents to ensure their attendance and punctuality to these programs. It must also be considered in such an order, that the older a child is, the less likely that he will meaningfully engage in a therapeutic process that is imposed upon them, despite explicit 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.
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