Case law: Family reunification therapy and claims of parental alienation

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Barrett v. Huver, 2018 ONSC 2322: In this case, the father brought a motion for an order requiring the parents and children to attend multi-day family reunification therapy.

The parties were married in July 2001 and separated in April 2009. They had two children, born in 2003 and 2005. In 2012, the mother was granted primary residence and the father access, in accordance with an access schedule, and the parties were to share the children’s holiday time equally.

The father is a paramedic and operates a business providing medical services to companies. The mother is a teacher.

The father’s work schedule changed a number of times, which affected the times of his access. He claimed that the mother refused to change the access schedule despite these changes to his work schedule, such that his time with the children had been reduced from 40% of the time to 10% or 15% of the time.

The mother claimed that she had attempted to compromise, but her proposals were dismissed by the father, who became angry and verbally abusive. The father then alleged that the mother had alienated the children from him. Her position was that it was his behaviour that caused the children to become estranged from him.

The father requested an order that the parties be required to participate in family reunification therapy, using the services of Families Moving Forward, described as “A Multi-Day Intervention for Separated Families When Children Resist Contact with a Parent.”

In coming to its decision, the court considered Testani v. Haughton, 2016 ONSC 5827 (Ont. S.C.J.), which states that the issue of whether the court has jurisdiction to order counselling “is not clear cut” as the Children’s Law Reform Act does not provide specific authority to order counselling except by inference, as per section 28 and as an incident of custody or access, as per section 34. Further, the court in Testani referenced Kaplanis v. Kaplanis, [2005] O.J. No. 275 (Ont. C.A.), which held that the legislation does not specifically authorize the making of an order for parental counselling; while some trial judges have held the court has inherent jurisdiction to make such an order, carrying out the order requires the cooperation of the parents.

The court held that even if sections 24(2) and 28(1) (b) and (c)(vii) of the Children’s Law Reform Act can, by inference, confer jurisdiction to order parents to attend counselling, the father had not satisfied the court that it ought to make such an order in the face of the Court of Appeal in Kaplanis, which requires cooperation of the parents.

With respect to consent, the court held that the Health Care Consent Act, 1996, requires consent to participate in family reunification therapy, pursuant to section 10(1) of the Health Care Consent Act, 1996.  It found that the Families Moving Forward program fell within the definition of “treatment” in section 2(1) of the Health Care Consent Act, 1996 as ” . . . anything that is done for a therapeutic . . . or other health related purpose.”

Since the children were aged 15 and 12, the court also found it would be a presumption under the Health Care Consent Act, 1996 that they, too, would be required to consent to therapeutic treatment. The court cited L. (N.) v. M. (R.R.), 2016 ONSC 809, in which it was noted the Health Care Consent Act, 1996 does not prescribe any minimum age at which a minor’s consent or refusal to consent is to be acted on.

Parental alienation was held to be a serious allegation with serious consequences for the parties, including the children. Therefore, the court was not prepared to conclude that such treatment would pose little or no risk of harm to the children.

The court noted that given the father’s allegations that the children had turned against him, it was likely they would not consent to participate in the program.

With respect to costs of the therapy program, the father asked the costs to be shared equally between the parents. The court held that, issues of consent aside, evidence would be required to show the likely success of the program and of the financial ability of the parties to pay their share of the costs.

The motion was dismissed, on the basis that a court does not have jurisdiction to make an order compelling the parties to attend family counselling. Consent is required of the parties, including the children.

With respect to the allegations of parental alienation, the court held there was no more reason to find alienation on the part of the mother than on that of the father.

This case summary was prepared by Luke’s Place articling student Amanda Smith.