Law Times

Law Times • November 12, 2018 Page 15 www.lawtimesnews.com Judge orders therapy in family law battle BY MARG. BRUINEMAN For Law Times A recent decision provides some long-needed clar- ity on when a court can order therapy in a fam- ily law context, say lawyers. But there is some concern that October's interim order in Leelaratna v. Leelaratna over- steps, and it may affect other ar- eas of law. "The issue really relates to whether you can force somebody into this kind of therapeutic pro- cess or whether their consent is really required under the Health Care Consent Act. It has been a long-standing debate in the courts and our appellate courts haven't really fully pronounced on the issue," says Marta Siemi- arczuk, a family law lawyer and partner with Nelligan O'Brien Payne LLP in Ottawa, who was not involved in the case. The high-conf lict custody case centred around the strained relationship between a divorcing father, Visita Leelaratna, and his son, Udara. The ruling indicated the son wanted to stay with the mother, Megha Leelaratna, and he suffered from anxiety and physical illness at the prospect of seeing his father, which he re- fused to do. The father alleged alienation by the mother and successfully asked the court to order coun- selling, which had been recom- mended to help the child cope with the conf lict and emotions surrounding his family situation. Justice Julie Audet of the On- tario Superior Court of Justice found that any hope to rebuild a positive relationship between father and son would forever be lost without an integrated professional therapeutic inter- vention. She found there would be no legal solution without the counselling with its goal of achieving long-term changes in behaviours and that the court would have no power to assist the family without it. "I have concluded that the court has jurisdiction to make a therapeutic order in a family law context, that the particular therapeutic orders sought in this case do not fall within the defi- nition of "treatment" under the Health Care Consent Act and, therefore, that the parties' and the child's consents are not re- quired for the order to be made. Finally, I have decided that it is in Udara's best interest that both he and his parents engage in vari- ous forms of counselling before access between him and his fa- ther resumes," she wrote. Ottawa lawyer Gil Rumstein, principal of Gil D. Rumstein PC, acted for the father. He says the judge had to turn her mind to whether the counselling rec- ommendations made by the as- sessor would be implemented pending trial and addressed the question on whether or not she had jurisdiction. "I think this is a very impor- tant decision for families around Ontario because it opens up the court's ability to look for thera- peutic solutions," he says. The ruling, he adds, de- lineates the circumstances in which consent would have to be provided under the legislation, drawing a distinction between cases where consent is required and not required. "It is a crucial case because for family law you're often deal- ing with situations where there is either estrangement or, in some cases, alienation and, [in] some cases, just very high conf lict be- tween the parents, and the solu- tion to people's problems isn't always a court order telling them how to carve out time," he says. "So, this gives judges the tools that they need to solve the underlying issues. Those tools are some- times in the therapeutic realm, in the hands of counsellors, social workers, child psychiatrists." Siemiarczuk says the deci- sion addresses the issue of a court-ordered therapeutic pro- cess dealing with reunification counselling that is not seen as a medical service but rather one that Siemiarczuk likens to an education piece to assist people in seeing how their behaviour impacts the family dynamics. "[I]t fully canvasses the his- tory of the law, where the divide has been and where the debate has been on the issue, and it ad- dresses very clearly how to deal with the Health Care Consent Act and to what extent is it a medical service or simply some- thing ancillary that the court can order as an incidence of custody and access of children," she says. Ottawa family lawyer Kath- erine Cooligan, regional man- aging partner of Borden Ladner Gervais LLP's Ottawa office, says Leelaratna provides long- awaited clarity. 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