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Mandated counselling

Sometimes the solution is not legal but psychosocial
By Steven Benmor
February 17 2017 issue

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It has always been thought that counselling can only be beneficial if the person voluntarily selects a counsellor, books the appointments, wishes to benefit from counselling and, most importantly, attends willingly. But with the increased incidence of family breakdown which, at its heart, are relationship, behavioural and communication problems, judges are realizing that the solution to the problem is not necessarily legal in nature, but psychosocial. If the solution to the family problem that has been presented to a family court judge involves the use of a mental health professional, such as a psychologist or social worker, then it is sensible that the court should have the jurisdiction to direct a parent or family into counselling, even if one of the parents resists. In the end, the goal is an improvement in the overall emotional health of the family.

But family counselling mandated by a judge is controversial. Many judges, lawyers and therapists will argue that counselling will only be successful if it is voluntary. However, there is a growing volume of cases where a child is estranged from the one parent at the time of, or because of, the parents’ separation. In extreme cases, the custodial parent deliberately manipulated the child through a campaign of denigrating the other parent, thus causing the child to believe that parent to be wicked or evil. The estranged parent may even become the scapegoat for all that was considered bad in the family home. If the child has witnessed years of verbal disputes such as parenting arguments or even violence between the parents, the child may adopt the favoured parent’s subjective image of the estranged parent following separation.

Proponents of mandated counselling argue that it is necessary to help the child heal from, and overcome, the estrangement from a parent. Some professionals view this treatment as deprogramming a child from false messages inculcated by the other parent. Various forms of this type of treatment have been introduced over the last decade. The simplest version involves regular therapy sessions with the child and/or the parents. This sometimes includes the other siblings. These sessions may occur in the therapist’s office, in the parents’ home or in the community. The more intensive version involves removing the child from the favoured parent and confining the child to a location away from home, while conducting intensive sessions with the rejected parent. Whatever model is used, most professionals will agree that a pathology exists when a child has no relationship with a parent and some form of intervention is needed.

This issue of family counselling, in the simplest form, was addressed by Justice David Jarvis in the case of Testani v. Haughton 2016 ONSC 5827. In this case, the court considered whether it had the jurisdiction to order counselling between the child and the parent. The mother argued that the court had no jurisdiction to order counselling and, even if it did, the evidence was insufficient to make the order sought. Justice Jarvis gave the mother’s argument considerable thought and stated:

“… [T]he jurisdiction to order therapeutic counselling can be found in sections 24(2) and 28(1)(b) and (c) (vii) of the CLRA but caution must be exercised when considering the circumstances in which any such order would be appropriate and, if so, to define the parameters of such third party involvement.”

In summary:
  1. The court may order reunification therapy. That jurisdiction arises from the provisions of sections 24 (2) and 28(1) and (c)(vii) of the Children’s Law Reform Act.
  2. Such orders are to be made sparingly.
  3. There must be compelling evidence that the therapy will be beneficial.
  4. The request must be adequately supported by a detailed proposal identifying the proposed counsellor and what is expected.
  5. Resistance to therapy is  important but it is not the determining factor whether such an order should be made.
  6. Where a clinical investigation or an assessment is underway, no order should be made pending their conclusion.
  7. Whenever practical, appropriate direction should be given to the counsellor/therapist and a report made to the court.
This case, and this approach, signals the recognition by the judiciary that not all family law disputes have a legal remedy, but rather that legal remedies can be used in order to access the real solution to the problem. It may be that more experienced and committed Family Court justices such as Justice Jarvis are needed to breathe air into the very language of the Family Law Rules which state that their primary objective is to actively manage cases by “encouraging and facilitating use of alternatives to the court process.” Justice Jarvis refused to allow more time to pass by promptly using his jurisdiction to remedy the child’s fractured relationship with the father. He ordered the parents to complete the counsellor’s intake forms and begin therapy right away.

Steven Benmor is a fellow of the International Academy of Matrimonial Lawyers and a certified specialist in family law.

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