The Courts Authority to Order Therapeutic Intervention in Alienation Cases

ET v LD 2017 ONSC 4870

Background

The parties were married in 1992.  The parties had three sons together. The parties separated in May 2014. They signed a Separation Agreement that provided that the parties would have joint custody of the children and that they would honour their parenting plan.  The parenting plan stipulated that both parents would have equal parenting time with the children.

The Applicant Mother alleged that the Respondent Father was alienating her from the children.  The Applicant Mother brought a motion for an order compelling the family to attend the “Families Moving Forward Program” to help resolve the family conflict. The Respondent Father vehemently opposed the family’s participation in the program. The Respondent Father argued that the “Families Moving Forward Program” constituted “treatment” which required the consent of the participants under section 10 of the Health Care Consent Act of Ontario. Notably, this section is directed to health care practitioners. The Respondent argued that there was no consent.

The Applicant Mother argued that the Court had parens patriae jurisdiction to order that the parties and their children participate in the “Families Moving Forward Program”.

Analysis

Justice Faieta considered two issues before coming to a conclusion:

  1. Is the consent of the children required for them to attend the “Families Moving Forward Program”?; and
  2. Is it in the best interests of the children to require the family to attend the program?

Consent

Justice Faieta found that there was no evidence that the children were refusing to participate in in the “Families Moving Forward Program”.  He further noted, that there is no evidence that Dr. Barbara Fidler, the person in charge of the program, is a “health practitioner” under the Health Care Consent Act of Ontario. Justice Faieta continued to explain that he was not satisfied that the “Families Moving Forward Program” constituted treatment within the meaning of section 2 of the Health Care Consent Act of Ontario.

Notably, section 2 of the Health Care Consent Act defines treatment as follows:

“Treatment” means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health related purpose, and includes a course of treatment, plan of treatment or community treatment plan, but does not include, amongst other things, a treatment that in the circumstances poses little or no risk of harm to that person.

Justice Faieta held that there was no “health related purpose” to the program, consequently, it did not constitute treatment.

Best Interests of the Children

Parens Patriae refers to the inherent jurisdiction of the courts to make decisions concerning people who are not able to take care of themselves. Justice Faieta acknowledged that parens patriae jurisdiction is limited to filling gaps within the legislation. He found that there was nothing in the Children’s Law Reform Act that expressly provided the Court with the authority to make the order sought by the Applicant Mother.  Consequently, the Justice found that parens patriae applied to the order sought.

Justice Faieta considered all the evidence presented and determined that the parenting plan, as set out in the Separation Agreement, was “not being respected in letter or in spirit”.  He continued to hold that the children were suffering as a result.  Consequently, he found that it was in the best interests of the children to grant the order sought by the Applicant Mother.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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