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When Can (or Should) a Court Force Parents to Go to Reunification Therapy?

When Can (or Should) a Court Force Parents to Go to Reunification Therapy?

Reunification therapy is court-ordered counselling, conducted by a court-designated therapist, designed to help bridge the rift between a parent and a child after a divorce or separation.  It can be part of a determination as to custody and access, or may come up as part of a review once these orders have already been made. Reunification therapy can be ordered at a motion or at a trial.

Two recent Ontario cases provide guidance on when these kinds of orders are appropriate.

In Testani v. Haughton, the court considered whether to order reunification counselling for the daughter of two parents who had significant conflict in the post-separation period.  At separation, they had been married about 12 years and had two children together, including a 13-year-old daughter who the father claimed was actively being alienated from him by the mother.  The father had had no access to the daughter for several years, and she wholly refused to see him.

The child had attended counselling as directed by the court, and it resulted in the therapist’s recommendation that – while the daughter loved her father and was looking forward to future access with him – she should not be forced to see him at this point, since it would damage the prospect of any future relationship.  It was also recommended that she should receive individual counselling, as well as joint reunification with the father, to ease his transition back into her life.

The mother claimed she was on-board with these recommendations, but also did not want to force the daughter if she was currently unwilling to see him.

In examining this scenario in the context of resolving the parents’ issues, the court stipulated some of the criteria it must consider, in deciding whether to make an order for reunification therapy in the first place.

First, the court reflected on whether it even had the jurisdiction to make this kind of order at all, and after reviewing the prior cases, concluded it did.  Then it summarized the governing principles to be applied, as follows:

  • Orders for reunification therapy are to be made sparingly.
  • There must be “compelling evidence” that the therapy will be beneficial.
  • The request to the court must be adequately supported by a detailed proposal, identifying: a) the proposed counsellor; and b) what is expected.
  • A parent’s or a child’s resistance to therapy is an important factor in deciding whether to make the order, but it is not a determining one.
  • Where practical, the court should give appropriate direction to the counsellor or therapist, and should receive a report after the therapy is concluded.
  • If a clinical investigation or assessment is already underway, the order should wait until those steps have been concluded.

On the point of a parent’s resistance to participating in therapy, a second recent case called Leelaratna v. Leelaratna stresses that a court must look beyond a parent’s stated refusal to co-operate, and assess how likely the parent would be to actually go.  The court said:

There may be various reasons for a parent’s resistance to therapeutic intervention; the parent may not be satisfied that the cause of the breakdown in the child-parent relationship has been properly identified; the parent may feel that therapy is premature and that other steps must first be completed; the parent may lack the financial resources to retain the recommended therapist, and/or; the parent may not wish to have to physically force a resistant child to attend counselling.  The court should assess the likelihood that a parent will comply with a therapeutic order once it is made, despite that parent’s professed refusal to engage. 

For the full text of the decisions, see:

Testani v Haughton, 2016 

Leelaratna v. Leelaratna, 2018

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

 

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