• by Ainsley Doell
Originally published in the OFLM 2023-10 edition
In the September issue of the OFLM, Samantha Rich wrote about parental alienation and the different remedies available to litigants who establish its presence. Through a discussion of the recent decision of C.B. v. E.G. (2023 ONSC 1571), this article will focus in on one of those remedies, namely, reunification therapy. While orders for reunification therapy can be a powerful tool for responding to parental alienation, they are not always appropriate and there may be significant barriers to their enforceability. This article seeks to provide legal professionals with guidance on when it may be appropriate to advance these requests on behalf of their clients.
Therapeutic orders, including orders for reunification therapies, can be powerful tools for repairing parent-child relationships which have been damaged through parental alienation. However, courts have noted that this kind of intervention is not always appropriate even where alienation can be made out, and that such orders are to be made “sparingly”.
This article will be discussing C.B. v. E.G. (2023 ONSC 1571), a decision released earlier this year which provides a useful example of how litigant’s requests for reunification therapy ought to be handled, applying the 2022 Court of Appeal decision in A.M. v. C.H., 2019 ONCA 764.
In C.B. v. E.G., Justice Bale offers an interesting analysis of the role of the views and wishes of mature minors in cases of parental alienation. In providing an overview of the law on therapeutic orders, Justice Bale clarifies the contentious issue of whether the consent of child is required in order to make a therapeutic order.
This article will begin by briefly describing what reunification therapy is. Through a discussion of C.B. v. E.G., it will then address the authority of the court to order it, the perceived role of such an order, the circumstances in which such orders have been made, and the circumstances in which such orders are inappropriate.
This article aims to outline considerations for legal practitioners who are representing clients where parental alienation may be at play, and to help them assess whether a request for reunification therapy is likely to be viewed favourably by the court.
What is an order for reunification therapy?
Orders for reunification therapy are aimed at re-establishing a relationship between children and their estranged parents. They can come in many forms and are often sought in high-conflict family law cases where an access parent is alleging that the primary parent is engaging in alienating behaviours that are damaging the parent-child relationship.
This therapy can take the form of joint counselling sessions, such as was sought in Leelaratna v. Leelaratna (2018 ONSC 5983).
On the other end of the spectrum, depending on the severity of the alienation, reunification therapy could involve a more intensive multi-day intervention. In E.T. v. L.D. (2017 ONSC 4870), the court used its parens patriae jurisdiction to compel the parties’ attendance at the multi-day program Families Moving Forward, led by parental alienation expert Dr. Barbara Jo Fidler.
Cost is an important consideration when judges consider whether to order reunification therapy, and is therefore something that lawyers ought to consider when seeking it on behalf of their clients. Justice Shaw noted in Barrett v. Huver (2018 ONSC 2322) that the Families Moving Forward program is costly, and that he would “require compelling evidence as to the likely success of the proposed intervention therapy, as well as the financial ability of [the respondent] to afford the costs of the program” before making an order compelling participation (at para. 46).
Where a court declines to order participation in a program such as Families Moving Forward, they may opt to order a less invasive therapeutic intervention: In Milne v. Milne (2023 ONSC 27), a father sought an order enrolling his children in Family Bridges; a program involving a four-day workshop, a five-day vacation with the estranged parent, and then a 90-day suspension of contact between the alienating parent and the children. While Justice Steele made an order for reunification therapy to resume immediately, she declined to make the order as requested by the father due to a lack of expert evidence before her demonstrating that an intervention of this magnitude would actually benefit the children.
Where these orders are made, they may be made in tandem with orders for individual therapy for the children or parents.
For example, in Milne, Justice Steele ordered individual therapy for the children, to get to the root of the underlying issues in the parent-child relationship (at para. 63).
In M.S. v. K.A. (2021 ONSC 7853), Justice MacPherson found that the mother had engaged in alienating behaviour and ordered reunification therapy for the father and daughter. It was also ordered that the mother attend therapy herself in order to better understand the value of the daughter having a relationship with her father.
C.B. v. E.G.: case overview
In the recent case C.B. v. E.G., the applicant father brought a motion for urgent family therapy, aimed at mending the relationship between his 16-year-old daughter (“D”) and the paternal family. This motion was opposed by both the mother and the Office of the Children’s Lawyer (“OCL”).
The parties shared two children, ages 18 and 16 respectively. The proceedings only concern the youngest child, D, who is still a minor. Following their separation in 2016, the parties had a written agreement that provided for shared parenting time. However, both children resided primarily with their father from separation until 2020. In May 2020, the parenting status quo was abruptly disrupted when both children refused to return to their father’s care (at paras. 5-8).
The father’s position was that this abrupt change was a result of the mother’s alienating behaviours. He argued that he shared a close relationship with D, and that her mental and physical health have been in decline since leaving his care. He claimed that the mental health issues experienced by D were not present while she resided with him (at paras. 9-10).
The mother denied that she had any role in the decline of the father’s relationship with their children and her position was that D’s views and wishes be respected regarding contact with her father.
The father’s account is starkly contrasted by the statements that D made to the OCL. The OCL report stated that D does not share the same close and loving view of her relationship with her father, and that she believes her father to be coercive and controlling. She did not want any contact with her father.
Justice Bale dismissed the father’s motion. In making her decision, she considered the following issues:
- The jurisdiction of the court to make therapeutic orders;
- The best interests of the child;
- Weighing the views and preferences of children; and
- The implications of making therapeutic orders against the wishes of a mature minor.
Below, I will outline Justice Bale’s analysis of these issues, elaborating on some of the decisions she cites and drawing in additional relevant case law.
There has been conflicting case law on the issue of whether the court has the authority to make therapeutic orders absent the consent of the people subject to them, including orders for reunification therapy.
The case law points to three sources of the court’s jurisdiction: The Divorce Act, the Children’s Law Reform Act, and if all else fails, the court’s parens patriae jurisdiction.
However, some case law rejects this jurisdiction on the basis that the court cannot make an order for therapy without the consent of all subjected parties.
The Health Care Consent Act (SO 1666, c. 2) provides that consent is needed for the delivery of all health care treatments. There has been discord as to whether reunification therapies are captured under the definition of “treatment” and therefore fall under the purview of this legislative scheme.
In Barrett v. Huver, the father was seeking an order that the parties and their two children attend Families Moving Forward — a multi-day family therapy intervention program. Justice Shaw noted that counselling requires the cooperation of all parties involved. Further, he held that given their age, the HCCA applied and the children’s consent was therefore required.
In other cases, it is found that reunification therapies do not fall within the definition of “treatment,” and such orders are within the jurisdiction of the court even absent the consent of the children (see, e.g., Leelaratna v. Leelaratna, 2018 ONSC 5983).
In C.B., Justice Bale notes that the Ontario Court of Appeal decision in A.M. v. C.H. (2019 ONCA 764) speaks definitively on this issue. Writing for the court, Justice Pardu held that the Health Care and Consent Act was not a controlling factor, and that judges have broad authority to make orders for counseling under section 16 of the Divorce Act as well as section 28 of the Children’s Law Reform Act.
In this case, Justice Bale found that the court’s authority to make such an order could be found in section 28 of the CLRA.
Moving forward, it may be tough to argue that the court lacks jurisdiction to make an order for reunification therapy. Practitioners looking to dismiss a claim for such an order would be better served basing their arguments on the best interests of the child or practical issues such as cost or enforceability, as discussed below.
2. Best interests of the child
The best interests factors enumerated in section 24 of the CLRA apply to all parenting orders made under the Act. The analysis under section 24 is very fact dependent. C.B. points to two cases that enumerate guiding principles to apply to the best interests analysis as it relates to orders for reunification therapy.
The first case, Testani v. Haughton (2016 ONSC 5827), is widely cited in decisions regarding reunification therapy. Justice Jarvis provided the following considerations (at para. 18):
- Such orders [for reunification therapy] are to 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.
- Wherever practical, appropriate direction should be given to the counselor/therapist and a report made to the court.
In Testani, an order for reunification therapy was made for a father and his 13-year-old daughter. It is worth noting that the father had proposed a particular therapist to conduct the reunification therapy, and the court had the benefit of being able to assess that that therapist’s approach was well suited to the needs of the family. This suggests that item 3 above requires more than simply proposing a counsellor who has their own methods. As discussed above, reunification therapy could be as simple as ordering joint counselling or as complicated as requiring attendance at a multi-day multi-stage intervention. The moving party and their counsel must turn their minds to finding services that respond to the specific needs of the children involved.
Justice Bale notes that these factors were added to in Leelaratna, where Justice Audet included the following practical considerations in her analysis (at para. 69):
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 (motion based on potentially incomplete evidence vs. trial based on full evidentiary record)?
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 recalcitrant parent?
Is the child likely to voluntarily engage in counselling therapy?
Justice Bale highlights both cases as providing guidance with respect to how to apply the best interests factors to cases of parental alienation where the relief being requested is an order for reunification therapy.
Both Testani and Leelaratna are broadly cited in this context, and practitioners can feel confident looking to these ten factors together for guidance when assessing the strength of their case and deciding whether to proceed with seeking reunification therapy.
3. Weighing the views and preferences of children
Per section 24(3)(e) of the CLRA, a child’s views and preference ought to be considered in conducting a best interests analysis, where they can be ascertained, and given weight in accordance with the child’s age and maturity.
Justice Bale conducts a thorough analysis of the appropriate role of the views and preferences of a mature child.
Her analysis begins with noting that this is a right given to children under the United Nations Convention on the Rights of the Child, Article 12: children must be given a right to express their own views, and those views must be “given due weight in accordance with the age and maturity of the child’ (Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, art 12).
However, despite the presence of this right domestically and internationally, it must be balanced with the court’s duty to “act protectively”— which may be at odds with a teenager’s “strong claims to autonomy” (C.B. v. E.G. at para. 22; discussing A.M. v. C.H.).
In W.C. v. C.E. (2010 ONSC 3575 at para. 139), expert on parental alienation Dr. Fidler presented evidence that if there is a finding that a child has been subjected to parental alienation, little weight should be attached to the child’s wishes.
So, how is this protective duty reconciled with a child’s right to their autonomy?
In C.B., Justice Bale states that the maturity of a child needs to be assessed in light of the severity of the potential consequences of refusing or receiving the reunification treatment (at para. 22).
Bale J. cites factors from Decaen v. Decaen, 2013 ONCA 2018 at para. 42:
Generally, in assessing how much weight to give to children’s wishes in family court proceedings, a court should consider:
- Whether the parents are able to provide adequate care;
- How clear and unambivalent the wishes are;
- How informed the expression is;
- The age of the child;
- The child’s maturity level;
- The strength of the wish;
- How long they have expressed their preference;
- The practicalities of the situation;
- Parental influence;
- Overall context; and
- The circumstances of the preference from the child’s point of view.
When the views expressed are with respect to medical decision-making, C.B. provides a further list of factors from A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30:
- What is the nature, purpose and utility of the recommended medical treatment? What are the risks and benefits?
- Does the adolescent demonstrate the intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences?
- Is there reason to believe that the adolescent’s views are stable and a true reflection of his or her core values and beliefs?
- What is the potential impact of the adolescent’s lifestyle, family relationships and broader social affiliations on his or her ability to exercise independent judgment?
- Are there any existing emotional or psychiatric vulnerabilities?
- Does the adolescent’s illness or condition have any impact on his or her decision-making ability?
- Is there any relevant information from adults who know the adolescent, like teacher’s or doctors?
(See paras. 69-70, citing A.C. v. Manitoba (Director of Child and Family Services), at para. 96).
In the case at hand, Justice Bale affords considerable weight to the views and preferences of the child, D. The following evidence supported this determination:
- D is 17 years old, nearing the developmental stage where she will be separating from her parents;
- Her views are strong, consistent, and well informed: It is clear that D understands her father’s request, as she is familiar with the concept of therapy, having attended in the past, and she has read her father’s motion materials;
- The “obvious hallmarks” of parental alienation are absent in this case; there is no “ongoing warfare” between D’s parents.
It is explicitly noted that D’s strong opposition to reunification therapy was not determinative: It was necessary for Justice Bale to explore the context in which D held these views, how she arrived at them, and how strongly she held them.
4. Implications and additional considerations
It is important to keep in mind that court orders are not made in a vacuum – just because an order for reunification therapy is made does not mean that the child subject to it will readily comply. This is a real practical concern when the child in question is a mature minor. A 17-year-old who does not want to attend therapy may simply just not attend, which leads to the issue of enforceability.
When the children are younger, it may be easy for a court to order that their parents complete the necessary paperwork and take other steps to enroll them in therapies and facilitate their attendance. But if the parents are doing all that they can do, how is a court supposed to enforce an order to compel a teenager to attend and meaningfully engage?
This is discussed by Justice Bale, who states that “the court should not be drawn into making orders that cannot reasonably be expected to be implemented” (C.H. v. E.G. at para. 39).
Other examples, in brief
Given the fact-driven nature of this analysis, what follows is a brief overview of some other cases from the last five years where the court has considered whether to grant an order for reunification therapy.
Reunification therapy ordered:
Rea v. Rea (2018 ONSC 3723): Justice Jarvis orders reunification therapy, stating that the best interests of the children are best served by starting right away, in tandem with the preparation of the CLRA section 30 assessment. The mother sought reunification therapy with the parties’ youngest child, born in 2006. The father argued that a lawyer should be appointed for the child to ascertain his views. Justice Jarvis notes that “where a parent says that a child does not wish to see the other parent, it is not enough for that parent to leave the decision up to the child” (at para. 15). There was no consideration in this case of whether the court had jurisdiction to make a therapeutic order, or reference to where the authority came from.
R.N. v. A.N. (2019 ONSC 163): Father seeking reunification therapy, claiming that the mother and her new partner have engaged in alienating behaviour. Parties share three children: 19, 14, and 12 years of age. Both parents “support an outcome that involves family reunification therapy and counselling”, but the mother thinks that the father should have to attend counselling and anger management classes first. Justice Jarvis ordered reunification therapy for the 14- and 12-year-old, but no access at that time.
M.S. v. K.A. (2021 ONSC 7853): Reunification therapy was not specifically sought as relief. Justice MacPherson ordered reunification therapy, to begin immediately, the cost of which is to be shared as a section 7 expense. The mother unnecessarily minimized the father’s role in their 6-year-old daughter’s life and lacked insight into the impact of her own behaviours. The behaviours of the child clearly indicated the presence of alienation. Because the mother had ignored orders for reunification therapy in the past, Justice MacPherson went as far as to provide the father with sole decision-making authority and primary care, noting that he was better positioned to facilitate the reunification therapy. The mother was also ordered to attend therapy herself in order to better understand the value of her daughter having a relationship with her father.
Milne v. Milne (2023 ONSC 27): Discussed above. The father sought intensive multi-day intervention, but Justice Steele opted to instead order less invasive reunification therapy and individual therapy for the children. This was not a case of “extreme” alienation; there was evidence that the mother had been attempting to facilitate parenting time. The children were 8 and 11 years old, respectively. It was noted that the cause of the relationship breakdown was unclear, and the father seemed “laser focused on re-establishing his time with the children,” rather than on understanding or addressing the underlying causes.
No reunification therapy ordered:
Leelaratna v. Leelaratna (2018 ONSC 5983): The father sought an order for joint counselling for him and his 11-year-old son, as recommended by a child psychologist. The child was experiencing physiological symptoms due to the stress of parenting time with his father. The mother unsuccessfully argued lack of jurisdiction. Justice Audet found that, at this time, any form of access would not in the child’s best interests, but that reunification therapy may be appropriate in the future. In the meantime, she made orders for individual therapy for the mother, father and son. In this case, it was noted that a professional therapeutic intervention may be the only chance that the father and son have to rebuild a positive relationship.
Barrett v. Huver (2018 ONSC 2322): Discussed above. Father sought an order for the parties and their children, 14 and 12 years of age, to attend Families Moving Forward. The evidence presented was contradictory affidavits and there was no expert evidence presented; it was “impossible” to determine the cause of the harm to the relationship or whether the harm could be meaningfully addressed by this costly program.
Cucci v. Cucci (2019 ONSC 1565): The father unsuccessfully sought an order for the family to attend Families Moving Forward. The children in question were 15 and 17 years of age, respectively. The cause of the relationship breakdown was the nature of the parties’ separation, which occurred following a confrontation about an affair. Justice Kumaranayake noted that the evidentiary record before her was deficient: she needed more evidence about the nature of the proposed program and more evidence about the views of the children in relation to the specific relief requested, especially given their ages. What was clear, however, were the children’s consistent views that they did not want to have access with their father.
The breakdown of a parent-child relationship can be devastating, but that does not always mean that therapeutic intervention is appropriate. It is important for parents and legal practitioners to remember that courts will always put the best interests of the child at the forefront of their decision-making, and the outcomes will not always lead to what they feel would be a ‘happy ending’.
Some judges have found that the cause of parental estrangement is relevant to whether reunification therapy is appropriate, and others are less concerned with that as long as it can be found that re-establishing a healthy parent-child relationship is in the child’s best interests.
C.B. v E.G. provides a clear articulation of the state of Ontario courts’ approach to orders for reunification therapy, providing especially helpful guidance on how to appropriately weigh the views of mature minors.
If you think back to when you yourself were 17 years old, as in C.B., consider whether you would have been receptive to being forced not only to attend but to meaningfully participate in this kind of intervention.
Among other practical considerations is the sad reality that the cost of therapy can be prohibitive for many parties. Accordingly, the court may not order reunification therapy where it is clear that the parties do not have the means to pay, even where parties may be able to benefit from the services.
Additionally, it appears that courts are more willing to intervene where children are younger and more directly under the influence of their primary parent.
Finally, the important take away from the above case law is that intervention should be sought as soon as possible, to begin the healing process and avoid irreparable harm.