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Decision provides guidance on therapeutic orders in family law

A recent ruling by the Ontario Superior Court of Justice provides clarity on how and when family courts should use therapeutic orders compelling parents and children to participate in counselling, Toronto family lawyer Erin Chaiton-Murray tells AdvocateDaily.com.

In the case, the judge discussed the various approaches courts have taken in recent years, before deciding the court has jurisdiction to make a therapeutic order in a family law context, she says.

“This particular matter is a good summary of the existing and conflicting case law around therapeutic orders, and what factors the court needs to consider when being asked to make them,” says Chaiton-Murray, partner with Fogelman Law.

In her decision, the judge wrote, “There is significant controversy at this time in Ontario about whether or not courts have jurisdiction to make therapeutic orders … the case law appears to be divided into three distinct groups: cases where the court has found that it did not have jurisdiction; cases where the court found that it had jurisdiction; and cases where the court has assumed jurisdiction (whether or not it made the order), without explanation.”

Chaiton-Murray says the judge found that a “minority of cases” fall into the first group, where the court ruled it did not have the authority it needed to make that decision.

More cases fell into the second group, she says, where courts had ruled they had the authority to make the orders.

“According to the judgment, they usually found that authority within the Children's Law Reform Act or the Divorce Act,” Chaiton-Murray says.

“Broadly speaking, it seems the court has said that it can make any order that it considers necessary in the circumstances to determine custody and access,” she says.

As for the third group, Chaiton-Murray says those cases are a minority, where it “sounds like the court just went ahead and did it, without providing a basis for making that decision.”

She says this judgment provides a list of factors for courts to consider when deciding whether they can compel parties or child into a therapeutic process.

“It's a really detailed decision, and it provides a good framework for judges or parties in dealing with a similar set of facts around how the decision could or should be made,” says Chaiton-Murray, who was not involved in the matter and comments generally.

She says that the judgment states “such orders should be made sparingly” after considering a number of factors.

According to court documents, these include a clear cause for the family dysfunction, compelling evidence that the counselling or therapy would be beneficial to the child, parental willingness to participate in counselling, and the willingness of the child to take part.

Chaiton-Murray says the judgment also references how the word “treatment” is defined in the Health Care Consent Act.

“What is interesting is that in most family law cases where this type of counselling is being proposed, it's not likely to have to fall within the definition of ‘treatment’ in the way that the Health Care Consent Act contemplates it,” she says.

She explains the Act envisions “treatment” as having some potential risk of harm to the person receiving it.

“In the type of treatment or counselling we're talking about in these particular family law cases it’s the opposite,” Chaiton-Murray says, “where there is not likely to be a risk of harm, and in fact, the risk is that there will be harm if something isn’t done.”

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