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How difficult is it to obtain a court order for family counselling? (CASELAW Update)

Posted on October 31, 2018

If you are divorced, you may have concerns about maintaining relationships with your children.

Upon deterioration of such relations, a parent may consider counselling as an opportunity to mend the issues at hand.

However, problems arise if the former spouse disagrees with counselling as a remedy to the situation. In this event a court order may be obtained to compel family members into treatment, but what will the courts consider?

A family receiving counselling for their court orderIn Barrett v. Huver 2018 ONSC 2322 (‘Barrett’) the Ontario Superior Court of Justice addressed a motion brought by Mr. Huver, a father whose relationship with his children became strained as they grew into adolescence, mostly due to his job requiring him to be absent for extended periods of time.

His son no longer wanted to have overnight visits with him, and Mr. Huver was worried that his daughter would follow suit. Additionally, he was convinced that his ex-wife, Ms. Barrett, was influencing the children in their estrangement of him.

Mr. Huver sought to have his son, daughter, and their mother attend a specialized multi-day counselling program. Ms. Barrett disagreed, and the motion was brought before the court seeking an order to obtain the consent she would not give. The Court did not take the request lightly and detailed several factors involved in its decision.

Alienation

Convinced that Ms. Barrett’s prerogative was to ‘systematically alienate’ the children from him, alienation formed the basis of Mr. Huver’s argument. The Court considered many precedents that dealt with alienation and specifically, ‘Parental Alienation Syndrome’, which arises when complicated family dynamics cause the breakdown of the parent-child relationship. Due to the lack of expert evidence required to support Mr. Huver’s assumption of alienation, the Court could not find in favour of his argument that Ms. Barrett had influenced the children or was the cause of the estrangement between them.

Jurisdiction

On the issue of the Court’s ability to make an order for counselling, it is not a clear-cut process. In Barrett, the Court determined that the Children’s Law Reform Act only infers the ability to order counselling, no provision in the Act expressly allows for a court to order it. Legal precedents also support the notion that the parties must evidence the willingness to submit their disputes to a counsellor and be cooperative for the counselling to be effective. In light of Ms. Barrett’s unwillingness to participate, the Court would not make an order requiring her or the children to attend.

Consent

The Court addressed the issue of consent, as counselling services require it. The Court referred to the Health Care Consent Act, which references the term “treatment” and found that the program sought by Mr. Huver fell within the meaning. As such, not only were both parents required to consent, but the children’s consent to the treatment was also a factor given their ages of 14 and 12.

Thus, without the necessary permission, the Court not only refused to order the treatment but also noted that all parties would be required to consent which seemed unlikely in the circumstances.

Cost

Mr. Huver wanted Ms. Barrett to pay for half the cost of the counselling program, amounting to between $12,000.00 and $20,000.00. The Court noted that even if it were to order the counselling, there would need to be compelling evidence demonstrating the likelihood of meaningful progression as a result of the treatment. The evidence of Ms. Barrett’s ability to afford counselling was non-existent, and she maintained that she could not.

In summary, there is no hard and fast rule for the direction the court will take when determining the necessity of family counselling. The level of difficulty varies based upon the circumstances, as every case will be assessed individually and upon the position of the families involved, making the process complex due to the uncertainty of obtaining a favourable decision. The court will take an objective approach in each scenario, but with the costs of litigation and time involved in getting an order, it is essential to conduct a cost-benefit analysis for the necessity of counselling before considering legal action.


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