Recent Case: Family Reunification Therapy

C.B. v. E.G. 2023 ONSC 1571

This is an interesting decision concerning a father seeking family reunification therapy in order to repair his fractured relationship with his 17-year-old daughter. The mother and father, in this case, had joint decision-making and parenting time of their two children (one who is now 18 and the 17-year-old). The children seemed to have resided with their father from separation in 2016 until May 25, 2020, when the status quo changed.

The father asserts that since his daughter severed contact with him, her life has been in decline and that she has deteriorated mentally, physically, academically and socially. The daughter has been diagnosed with depression, social anxiety and generalized anxiety, PTSD and OCD and has nightmares, low self-esteem and intrusive thoughts.

The mother and the Office of the Children’s Lawyer opposed the request. The OCL clinician advised that the father-daughter relationship was not as positive as the father represented to the court and that his parenting style was overly coercive and controlling. The mother denied any alienating behaviour and stated that she has not interfered with the children’s relationship with their father, she simply wishes to respect her daughter’s views and preferences.

In considering the law, Madam Justice Bale states:

1. The court confirms that it has jurisdiction to order therapy based on section 28 of the Children’s Law Reform Act (para 15-16)

2. The court reaffirms the best interests of the child test and the importance of ensuring that any analysis involving the rights of the child are from a child-centred perspective (para 17-19)

3. The court confirms that when it is considering orders for reconciliation therapy, it should consider the guiding principles summarized in paragraph 18 of Testani v. Haughton. Specifically:

  • Orders for reunification therapy should be made sparingly;
  • There must be compelling evidence that the therapy will be beneficial;
  • The request must be adequately supported by a detailed proposal identifying the proposed counselor and what is to be expected;
  • Resistance to therapy is an important factor but is not the determining factor whether such an order should be made;
  • Where a clinical investigation or assessment is underway, no order should be made pending their conclusion; and
  • Wherever practical, appropriate direction should be given to the counselor/ therapist and a report made to the court

4. The court should also consider paragraph 69 in Leelaratna v. Leelaratna. Specifically:

  • 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?
  • At what stage is the therapeutic order sought?
  • 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 uncooperative parent?
  • Is the child likely to voluntarily engage in counselling therapy?

5. The court suggests that the ‘best interests’ standard must be interpreted in a way that reflects and addresses an adolescent’s evolving capacities for autonomous decision-making. Put more simply, that their wishes should carry greater weight as their maturity increases (para 22).

6. The Health Care Consent Act (HCCA) provides the statutory framework for addressing capacity and consent to treatment. Under the HCCA, a health practitioner is not permitted to administer treatment to a capable person without their informed consent. Treatment includes anything that is done for therapeutic or other health-related purposes (para 26).

In this case, the daughter clearly communicated her opposition to reconciliation therapy. The father argued that this would not only fracture the father/daughter relationship but that it would lead to negative implications for her future. The mother and the OCL felt that the daughter has reached an age of majority where her views and preferences should be the determinative factor in the best interests’ analysis. By not following her wishes, it could result in additional resentment, stress and emotional harm, along with further estrangement between herself and her father.

The judge considered the fact that the daughter is at a stage of development where she is moving towards separation from her parents and developing her own identity (para 34). The judge also considered more practical issues such as how they would be able to compel the daughter’s physical attendance at a therapist’s office citing that the daughter is at an age where “both her feet and her wheels may do the talking” (para 38).

Ultimately the court concluded that it was not in the daughter’s best interests to order her to attend family reunification therapy. While it is clear to the court that the father loves his daughter and wished to re-establish a connection, the court’s ultimate responsibility is to focus on the best interests of the daughter.