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Page 16 November 12, 2018 • Law Times www.lawtimesnews.com FAMILY LAW BOUTIQUES © 2018 Thomson Reuters Canada Limited 00250JA-91754-NP Be aware of the changes in environmental law and policy Order # L7798-8563-65203 $151 Softcover December 2018 approx. 150 pages 978-0-7798-8563-3 Annual volumes supplied on standing order subscription Multiple copy discounts available Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. New Edition Publishing Soon Key Developments in Environmental Law 2018 Editor-in-Chief: Stanley D. Berger Key Developments in Environmental Law 2018 features an insightful collection of articles written by renowned environmental lawyers and environmental professionals. Included in this release are the following: • Preface To 12th Edition of Key Developments in Environmental Law, by Stanley Berger • Can Canada's Impact Assessment Act Work for Controversial Projects? 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Chevron Corporation: Should Equity Displace Canadian Corporate Law Permitting Environmental Justice? by Bruce McMeekin Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 orders, leaving parties with dif- ferent positions, armed with cases to support those different positions, she says. This case, she adds, confirms that the court has jurisdiction to make therapeutic orders, albeit sparingly, and it reformulated and added to the factors previ- ously laid out. "She used the test that was out there, but there were decisions going both ways and she's refor- mulated and added the factors, but she's made it a definitive test," she says. "Now going forward, counsel and parties have this test to apply to their arguments for or against an order for counselling." Cooligan also believes this case allows courts to generate creative legal solutions for fam- ily problems. In Leelaratna, counselling is seen as a way to repair relationships and help family members cope with dif- ficult emotions that surface with changes in a family and the con- f licts that can arise. But, she adds, this decision also demonstrates the courts' increas- ing willingness to engage in mon- itoring and case management, although the initial monitoring may require the court's resources. But the biggest hurdle, she says, is whether the counselling will be a meaningful experience when someone is compelled to attend through a court order. A younger child, says Cooligan, may be more positively impact- ed than an older child who may be less inclined to attend and participate in the counselling. "There's the theoretical intent and then there's the practical re- ality," she says. "So, the strength of the impact will be dependent upon that practical reality in each individual family." And she points out that this is the first case that specifically deals with the Health Care Con- sent Act, specifying when con- sent is and isn't necessary. Ron Shulman, principal of Shulman Law Firm in Toronto, sees the decision as a significant one that will have ripple effects. Its significance, he says, is that it tackles head on the issue of ju- risdiction and giving therapeutic orders in the family law context. "The issue itself was the sub- ject of quite a bit of controversy in family law because the court has correctly pointed out that the court decisions on this have been either courts rejecting ju- risdiction, saying that the court cannot make such orders or some courts finding jurisdiction or some courts ordering it with- out explaining," says Shulman. "What's significant in this particular decision is that the court has acknowledged all those decisions and went through a very detailed analysis and con- cluded that the courts do have jurisdiction to order therapeu- tic intervention, not only for the child but also for the family." The issue, he says, is very nar- row, focusing on the family law context and turning on the anal- ysis of what is in the best interest of the child. "It's very clear that the evi- dence for the court was that without professional therapeutic help for this family there would be no hope to rebuild a positive relationship of the child with the father and the relationship would be lost forever." The evidence before the court, says Shulman, was that without professional therapeutic help, there would be no hope to rebuild the positive relationship of the child with the father, resulting in a decision the judge found to be in the best interest of the child. Decisions that follow will undoubtedly f lush out the exact boundaries of how far this will go, he says. Kim Whaley, of Toronto es- tates law firm WEL Partners, sees the potential for this deci- sion to have an impact beyond family law, which she says could be problematic. "I think the judge's decision here could have potentially far- reaching effects," says Whaley. She says ordering therapeutic counselling qualifies as a treat- ment decision under the HCCA and, therefore, does require con- sent from those involved. "Given that the definition of treatment and health practitio- ner under the HCCA is so broad, it arguably includes all the disci- plines contemplated by the court in this decision," she says. She believes there is potential for this ruling to open the door for courts to mandate certain treatments in select circum- stances and impact litigation where health-care treatments are sought for those who are un- able to consent or who are with- holding their consent. In comparable estates law circumstances, attorneys and guardians may consider "treat- ment decisions" in their capac- ity as substitute decision-makers where the subject person cannot consent, she says. Whaley adds the HCCA en- capsulates the Charter provi- sions regarding the right to life, liberty and security of the per- son as those provisions relate to health care, which is within provincial jurisdiction. She says that compelling treatment, even treatment that does not require a physical touching of a person, has always been viewed as breach of Charter rights except possibly under the Criminal Code. LT Continued from page 15 No legal solution without counselling Marta Siemiarczuk says a recent Ontario Superior Court of Justice case 'fully can- vasses the history of the law.' Now going forward, counsel and parties have this test to apply to their arguments for or against an order for counselling. Katherine Cooligan

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