Parenting cases involving estranged or alienated adolescents present some of the most agonizing dilemmas in family law. The recent Ontario Superior Court decision in C.B. v. E.G., 2023 ONSC 1571 starkly highlights the tension that can arise between pursuing reunification therapy in the putative “best interests” of the child versus respecting their evolving capacity for autonomous decision-making as a mature minor.
In C.B. v. E.G., the estranged father of a nearly 17-year-old daughter brought a motion seeking a court order requiring the entire family to engage in intensive reconciliation therapy. The goal was to repair their damaged father-daughter relationship before she reached the age of majority. However, based on the evidence before the Court, the daughter firmly opposed participating in any form of therapy involving her father.
Upholding the Court’s Remedial Discretion
Justice Bale’s decision, while specific to the case at hand, reaffirms the Court’s expansive jurisdiction under section 28 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 to mandate counselling and therapy when deemed necessary. In considering the scope and authority of the Court’s authority under the CLRA, the Court relied upon the principles articulated in A.M. v. C.H., 2019 ONCA 764, by the Ontario Court of Appeal:
a. The Health Care and Consent Act is not a controlling factor when a judge decides whether to make a therapeutic order in a parenting case: para. 47.
b. Judges have broad authority under sections 16(a) and 16(2) of the Divorce Act and sections 28(1)(a),(b), and (c) of the Children’s Law Reform Act to make orders for counselling or therapy: paras. 49-51.
c. Under the Children’s Law Reform Act and the Divorce Act, the child’s views and preferences are only one factor among many in determining the child’s best interests. Consequently, a child’s refusal to attend counselling is not necessarily determinative of their best interests: para. 65.
d. There are both risks and benefits to making therapeutic orders which should be considered in the context of the unique facts and specific circumstances of each case: paras. 72-74.
Balancing Child’s Views with Best Interests
Justice Bale recognized the factors to be taken into consideration for purposes of determining the best interests of the child and coupled it with relevant case law regarding the applications of those factors in the context of the request for an Order for reunification therapy. She considered the following guiding principles in Testani v. Haughton (pre-A.M. v. C.H.), 2016 ONSC 5827 – (at para. 19):
1. such orders are to be made sparingly;
2. there must be compelling evidence that the therapy will be beneficial;
3. the request must be adequately supported by a detailed proposal identifying the proposed counselor and what is to be expected;
4. resistance to therapy is an important factor but is not the determining factor whether such an order should be made;
5. where a clinical investigation or assessment is underway, no order should be made pending their conclusion; and
Further shaping the Court’s views, it considered the additional considerations noted in Leelaratna v. Leelaratna, 2018 ONSC 5983:
1. is the cause for the family dysfunction (whether alienation, alignment or reasonable estrangement) clear based on expert evidence or otherwise?
2. at what stage is the therapeutic order sought?
3. are the parents likely to meaningfully engage in counselling despite their initial resistance to the making of the order?
4. is the child likely to voluntarily engage in counselling therapy? (emphasis added)
Weighing the Views and Preferences of Children
The Court gave particular consideration to the extent to which the views of a child should be taken into consideration in the circumstances. The Court recognized Article 12 of the United Nation Convention on the Rights of the Child which requires that the views of children who are capable of forming their own views must be given due weight in accordance with their age and maturity. The Court then provided its own useful guidelines regarding assessing how much weight to give to children’s wishes (at para. 23):
a. Whether the parents are able to provide adequate care;
b. How clear and unambivalent the wishes are;
c. How informed the expression is;
d. The age of the child;
e. The child’s maturity level;
f. The strength of the wish;
g. How long they have expressed their preference;
h. The practicalities of the situation;
i. Parental influence;
j. Overall context; and
k. The circumstances of the preference from the child’s point of view.
The Court Weighs the Child’s Physical, Emotional, and Psychological Well-Being
Having outlined the factors determining what would serve the “best interests of the child” in the context of the requested order for family reunification therapy, the Court took a comprehensive approach, considering the child’s physical health, emotional stability, and psychological well-being.
a. Child’s Views and Preferences
Age and Maturity: How D’s Age (Almost 17) Impacts the Weight Given to Her Views
One of the most pivotal aspects of the CB v EG case was the consideration of the child’s own views and preferences. D, who was then almost 17, was not a passive subject in the proceedings but an active participant whose opinions carried significant weight. The Court recognized that, at her age, D has the maturity to understand the implications of the case and to articulate her own wishes. This is in line with Ontario’s legal framework, which gives considerable weight to the views of older, more mature minors.
Strong Opposition: D’s Unwavering Stance Against Family Therapy Involving Her Father
D’s views were not just acknowledged; they were a decisive factor in the Court’s ruling. She was strongly opposed to the idea of family therapy that included her father, a stance she maintained consistently throughout the proceedings. This unwavering opposition was not taken lightly by the Court. In fact, it served as a substantial reason for the Court’s decision to deny the father’s motion for a family therapy order.
b. Parental Roles and Responsibilities
Father’s Claims: His Belief That the Mother Is Undermining His Relationship With D
The father’s allegations against the mother were a central element in the case. He claimed that the mother was intentionally undermining his relationship with D, leading to the child’s changed behavior and strong opposition to family therapy. These allegations were serious, as they could potentially constitute parental alienation, but the Court found no compelling evidence of parental influence over D’s position.
Court’s Stance: How the Court Views Parental Responsibilities and the Limitations of Its Own Orders
The Court took a balanced approach to these claims. While acknowledging the father’s concerns, it also emphasized the need for concrete evidence to substantiate such serious allegations. The Court made it clear that its role is not to micromanage family dynamics but to make orders that serve the child’s best interests. It also highlighted the limitations of court orders, noting that legal mandates cannot replace genuine cooperation and goodwill between parents.
In this context, the Court underscored that its primary role is to safeguard the child’s well-being, even if that means not acceding to the requests of either parent. The Court’s cautious stance serves as a reminder to family law practitioners that allegations of parental misconduct must be supported by compelling evidence to influence the Court’s decision.
c. Therapeutic Orders
Why the Court Is Hesitant to Force Therapy
The Court in CB v EG exhibited a cautionary approach when it came to issuing therapeutic orders, particularly those that are non-consensual. The Court was acutely aware of the ethical complexities and potential risks involved in mandating therapy, especially for a nearly 17-year-old who was vocally opposed to the idea. This cautionary stance is rooted in the Court’s overarching responsibility to act in the child’s best interests, which includes avoiding any actions that could potentially harm the child emotionally or psychologically.
Risks and Benefits: The Potential Negative Outcomes of Forcing a Child Into Therapy
The Court also delved into the potential risks and negative outcomes that could arise from forcing a child into therapy. Among these risks were:
- Exacerbating Existing Mental Health Issues: The Court noted that forced therapy could worsen any existing emotional or psychological issues, potentially leading to more harm than good.
- Straining Family Relationships: The Court considered the possibility that forced therapy could further strain the already tense relationship between D and her father, thereby defeating the purpose of the therapy itself.
- Ethical Concerns: The Court also touched upon the implications of forcing a mature minor into therapy against her will, emphasizing the need to respect the autonomy of older children in such matters.
By carefully weighing these risks against the potential benefits of therapy, the Court arrived at its decision to deny the father’s motion for a family therapy order. This serves as a crucial lesson for family law practitioners: the Court will not issue therapeutic orders lightly and will consider both the ethical and practical implications of such a move.
Best Interests of the Child: Court’s Analysis and Conclusion
After a comprehensive analysis of various factors—including D’s physical, emotional, and psychological well-being—the Court concluded that a family therapy order was not in D’s immediate best interests. The Court found that the potential risks of forced therapy outweighed the benefits, particularly given D’s strong opposition to it.
In focussing on D’s views and preferences, the Court took particular note of the following and determined that her views and preferences are to be afforded considerable weight:
a. D was almost 17 years of age and at the stage of development where she is moving towards separation from her parents and the development of her own identity;
b. D’s views on family therapy with her father were clear and unambivalent;
c. D’s present views, whether justified or not, were informed and she appeared to have the intellectual capacity, sophistication, and life experience necessary to understand the request before the Court; and
d. There was no compelling evidence of parental influence over D’s position.
Therapeutic Orders: Court’s Final Decision on the Therapy Order and the Rationale Behind It
The Court decision was rooted in multiple factors, including D’s best interests, her strong opposition to therapy, and the lack of compelling evidence to suggest that therapy would be beneficial under the circumstances and the difficulties in enforcing an order for family therapy. Of particular note, the Court stated that:
“In the face of D’s strong articulated objection to this therapy, it is this court’s view that the court is being asked to make orders that will not be complied with by the child and therefore cannot reasonably be obeyed by the Respondent mother. In my view, the court should not be drawn into making orders that cannot reasonably be expected to be implemented.”(at para. 39)(emphasis added)
“…the “why not” argument ignores the cautionary approach articulated in Testani and Leelaratna. That is, that therapeutic orders are to be made sparingly and on the basis of compelling evidence that the therapy will be beneficial.” (at para. 40)(emphasis added)
Implications for Family Law Practice in Ontario
Evidence Requirement: The Need for Compelling Evidence to Support Therapeutic Orders
The case of CB v EG underscores the importance of presenting compelling evidence when seeking therapeutic orders. The Court’s reluctance to issue such an order without substantial evidence serves as a cautionary tale for practitioners. It emphasizes the need for a robust case, complete with expert evidence where possible, psychological evaluations, and other forms of concrete evidence, to sway the Court’s opinion.
Mature Minors: Challenges in Implementing Orders Against the Wishes of a Mature Minor
The case also highlights the challenges of implementing court orders against the wishes of a mature minor. As seen in CB v EG, the Court gave significant weight to D’s views due to her age and maturity. This raises questions about the effectiveness of court orders that go against the expressed wishes of older minors, and it suggests that the Court is likely to respect their autonomy to a considerable extent.
Key Takeaways for Family Law Practitioners:
Prioritize the Child’s Expressed Wishes
When a mature minor clearly articulates their wishes regarding therapy, these should be given significant consideration in line with their developmental stage and understanding.
Assess Maturity with Precision
Conduct a thorough assessment of the child’s maturity, looking beyond age to their ability to understand the implications of the decisions at hand.
Balance Jurisdiction with Autonomy
Understand the limits of therapeutic jurisdiction and ensure that it does not override the autonomy rights of mature minors, particularly in personal medical decisions.
Consider the Efficacy of Court-Ordered Therapy
Recognize that therapy under duress, especially for an older child, may not be effective and could potentially harm family dynamics.
Prepare for Resistance to Therapy
Anticipate and plan for potential resistance to therapy by the child, and discuss with clients the practicalities and potential outcomes of enforcement.
Document the Child’s Views
Ensure that the child’s views are well-documented and presented in court, possibly through an independent children’s lawyer or a psychological expert.
Educate Clients on Legal and Ethical Complexities
Inform clients about the legal and ethical complexities involved in seeking therapeutic orders against a child’s wishes, including the potential for exacerbating family conflict.
Explore Alternative Dispute Resolution
Before resorting to litigation, consider alternative dispute resolution options that might be more acceptable to all parties involved.
Let’s continue to elevate the practice of family law in Ontario!
Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.