However, lawyers say, case law in Ontario has been inconsistent as to whether or not they have the jurisdiction to do so.
A recent decision at Ontario Superior Court has provided some clarity in its analysis that courts do have jurisdiction to make such orders, say family lawyers.
In October 2018, in Leelaratna v. Leelaratna, Justice Julie Audet of the Ontario Superior Court ruled that the court had the power under the federal Divorce Act and the Children’s Law Reform Act to order reunification therapy for a child that was alienated from his father during a divorce. Audet also ruled that therapy ordered for the child did not meet the definition of “treatment” under the Health Care Consent Act, thus it did not require parental consent, which lawyers say can be a complicating factor in some cases.
Beverley Johnston, founder of Johnston Family Law in Ottawa, says there had been conflicting rulings at the Ontario Superior Court of Justice prior to Leelaratna.
Johnston says Audet went through the case law in a methodical way in her ruling, and it provides guidance to other Ontario courts.
“It’s a very well-written decision,” says Johnston.
She says that, in Ottawa, “judges seem to be routinely making orders for reunification therapy,” but she notes that this is not the case in other parts of the province.
Johnston points to Thunder Bay, where Justice Douglas Shaw stated in Barrett v. Huver, 2018 ONSC 2322 that he didn’t have jurisdiction to make a reunification therapy order.
“This most recent decision of Justice Audet clearly says that [she] has jurisdiction to make this order, and [it] provides a complete analysis as to what the issues are,” says Johnston. She says that when there is contradictory case law at the Ontario Superior Court of Justice, lawyers look to the Court of Appeal to provide direction.
So far, no cases involved reunification therapy orders have been appealed to the Ontario Court of Appeal, she says.
Jim Jeffcott, head of the Family Law Group at Low Murchison Radnoff LLP in Ottawa, says the Leelaratna decision is a strong one, and it should help clear up the confusion in the case law at Ontario Superior Court.
“It certainly gives someone who’s asking for reunification [therapy] a good resource, because [Audet] was really comprehensive in her review,” says Jeffcott. He says that, in his experience, judges don’t like alienation cases because the subject matter is uncomfortable.
“These are high-conflict cases,” says Jeffcott.
“Typically, there’s a whole lot of background that happened before and often since the separation, where the parents are in significant conflict. They’re tougher cases because often there are non-legal issues [such as mental illness] going on.”
Johnston says reunification therapy is generally ordered in one of three situations: when there has been alienation by one parent; where a child indicates an extreme preference to be with one parent and has aligned their views to be consistent with that parent’s; or there can be cases of reasonable estrangement.
She says that reunification therapy is an important tool for lawyers and judges to try to bring children and parents’ relationship back to a healthy place and that the courts have an underlying duty to promote the best interests of children.
“The court and good counsel are always looking for solutions for these families,” says Johnston. “I’ve found the court system is not always the best avenue for fixing those problems, and they really need a professional, clinical approach.”
“These cases are expensive and take a long time because the courts are reluctant to involve a third party where they don’t feel it’s necessary,” says Jeffcott. “You have to convince a court that there’s enough there, especially with the assessments. There need to be significant concerns that gives it more complication.”
Gil Rumstein, a sole practitioner in Ottawa, represented Visita Leelaratna, the child’s father, who was the subject of the alienation. Rumstein says the decision is a shift in judicial thinking. He also notes that, because this is the most comprehensive decision on the issue, it sets a precedent that courts can make therapy orders.
“The decision opens the door for families who are going through this particular situation [to] have therapy ordered so that reconciliation has a shot at taking place,” says Rumstein. He notes that his client is waiting to see where the therapy process leads.
“The issue is still very much open-ended for him,” says Rumstein. “If the therapy opens up the possibility of a better relationship with his son, this will have all been a great success.”
Rodney Cross, a sole practitioner in Ottawa, who represented Megha Leelaratna, the child’s mother, did not respond to a request for comment.