What is the test for making a therapeutic order?

Ontario, Canada

The following excerpt is from Leelaratna v. Leelaratna, 2018 ONSC 5983 (CanLII):

In exercising that discretion, courts should consider a number of factors. Borrowing from the factors highlighted in Jarvis J.’s thoughtful decision in Testani v. Haughton, and adding some of my own, I find that the following factors are hugely relevant to a judge’s discretion to make a therapeutic order: a) 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? b) Is there compelling evidence that the counselling or therapy would be beneficial to the child? c) At what stage is the therapeutic order sought (motion based on potentially incomplete evidence vs. trial based on full evidentiary record)? d) 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? e) Is the child likely to voluntarily engage in counselling/therapy?

In some cases, the court’s inability to clearly determine the cause for the breakdown of the parent-child relationship played a significant role in its decision to decline making the therapeutic order. That is because the therapy proposed was specifically aimed at addressing a particular diagnosis which had not yet been made. For instance, in Barrett v. Huver, the father was alleging that the mother was severely alienating the child, and was proposing the Families Moving Forward program as the cure for such alienation (although it appears that the program can address a much wider variety of child-resisting-contact situations). At paragraph 17, the court stated that it was impossible to determine on the “competing, contradictory affidavits, untested by cross-examination, and in the absence of any expert evidence, the reason or reasons for the fractured relationship between the father and the children.”

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