Family

Therapeutic orders to be encouraged in family law

By AdvocateDaily.com Staff

Therapeutic orders should be encouraged in family law cases to help individuals recover and move on from separation, says Markham family law lawyer Andrew Feldstein.

In a recent decision, Ontario Superior Court Justice Julie Audet ordered the parents of a 12-year-old boy — as well as the child himself — to attend various types of counselling recommended by a psychologist who assessed the family.

Feldstein, principal of the Feldstein Family Law Group, welcomes the ruling but says case law remains divided on whether courts have the jurisdiction to make orders for therapy or counselling.

“In my view, counselling and therapy is the right way to fix families, rather than having them move along in the dysfunctional way that so many do following a separation,” he tells AdvocateDaily.com. “If courts can’t order counselling as a means for families to create solutions, then what options are they left with?”

The recent case arose out of a temporary access request brought by the father of the 12-year-old following the breakup of his marriage.

According to the decision, matters were complicated by the son’s reluctance to see his father, and a psychologist was ultimately retained to perform an assessment under s. 30 of the Children’s Law Reform Act (CLRA). His recommendations touched on each member of the family:

  • The father should attend a structured anxiety management program to help reduce his anxiety over losing his child and interact better with the mother, as well as therapy aimed at developing self-awareness and insight into the contribution he makes to the problem.

  • The mother should undergo therapy aimed at developing self-awareness and insight into her contribution to the problem, including intentional — or otherwise — influence of her son against the father, and to help her build her co-parenting skills.

  • The son should attend private counselling sessions aimed at coping with the issues regarding his father and managing his own stress. Separately, the boy should participate in joint counselling sessions with his father in an attempt to rebuild their relationship.

After referencing a large body of case law on the issue, Audet found that she had the power to make a therapeutic order regardless of the parties’ consent, concluding that her approach was “entirely consistent with the courts’ duty to promote the best interests, protection and well-being of children.”

“Therapeutic orders can be very effective tools to help the family move forward, reduce the parental conflict, and help children transition through the emotional turmoil of their parents’ litigation in a healthier way,” the judge said.

Addressing the impact of the Health Care Consent Act (HCCA), Audet found the counselling ordered fit an exception to the law’s definition of “treatment,” as would “most therapeutic orders sought in the context of family law proceedings” — where the aim is 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.”

Having found she had the jurisdiction to make the therapeutic order and that the HCCA didn’t apply to the case, the judge went on to find that such an order was appropriate in the circumstances.

Following the example of an earlier decision, she laid out a series of factors that she took into consideration when making her decision:

  • Whether or not expert evidence supports that the family is dysfunctional, and would be relevant based on the type of therapy proposed

  • The existence of compelling evidence that the counselling or therapy would benefit the children

  • Whether the order requested is on a temporary or final basis, by motion or at trial

  • How likely the parents are to engage in a meaningful way with the therapy, even if they are resistant

  • The likelihood the children will engage in the therapy voluntarily

If courts can’t arrive at a settled position on the issue of consent, Feldstein says governments at both levels should step in, amending the provincial CLRA and the federal Divorce Act to explicitly empower judges to make therapeutic orders.

“We want families to be able to recover and move forward following a separation, and counselling is something that should be allowed to happen, so they can learn to fix any dysfunction that exists,” he says.

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