2023 ONSC 1571, 2023 ONSC 1571

CITATION : C.B. v. E.G., 2023 ONSC 1571 COURT FILE NO.: 1305-18 DATE: 2023-03-13 SUPERIOR COURT OF JUSTICE - ONTARIO RE: C.B., Applicant AND: E.G., Respondent BEFORE: The Honourable Madam Justice L. Bale COUNSEL: B. Ludmer, Counsel, for the Applicant D. Zeldin, Counsel, for the Respondent J.

Winter, Office of the Children’s Lawyer, Counsel, for the child HEARD: January 26, 2023 ENDORSEMENT OVERVIEW [ 1 ] This is the Applicant father’s motion for family therapy in support of the relationship between the subject-child, D (age 16), and the father and paternal family. [ 2 ] The Respondent mother and the Office of the Children’s Lawyer, on behalf of the child, oppose this request. [ 3 ] The motion was argued on Affidavit evidence filed on behalf of both parties and the child.

BACKGROUND [ 4 ] The parties were married on September 27, 2003 and separated on November 1, 2016. [ 5 ] There are two children of the relationship: a. T – who is now 18 years of age; and b. D – the subject child of this motion, who will turn 17 years of age in April. [ 6 ] Shortly following separation, the parties entered into a Separation Agreement which provided that the parties would have joint and shared custody of the children.

The time-sharing arrangement was to be determined ‘from time to time’ with the children having their primary residence in both homes. [ 7 ] Notwithstanding their written agreement for shared parenting time, it appears that both children resided more so in the primary care and home of the Applicant father than the Respondent mother from separation until May 25, 2020. [ 8 ] On May 25, 2020 the status quo residency arrangement suddenly changed.

The father advises the court that on this date, without warning, both children refused to transition back into the father’s care: there was no triggering event or obvious reason for this significant change.

Unfortunately, the relationship between D and the Applicant father has continued to deteriorate since that time, such that he has not had any parenting time with D since July 2020. [ 9 ] The father asserts that his relationship with D has been undermined by the Respondent mother by denying the father’s parenting time, her refusal to support the father/daughter relationship, and her refusal to consent to and promote reconciliation therapy for D.

The father’s Affidavit materials provide detailed past evidence of a strong and loving bond between himself and D, and a strained relationship between the child and the Respondent mother. He describes the significant efforts he made to promote a healthy relationship between D and her mother during the time she was in his primary care.

By contrast, he asserts that the Respondent mother has undermined his present relationship with D through a refusal to co-parent with him, encouraging the child to sever her relationship with her paternal family, and other serious gate-keeping and marginalizing behaviours. [ 10 ] The father asserts that since D’s severed contact with him her life has been in decline: she has deteriorated mentally, physically, academically, and socially. He is very concerned about her overall health and well-being and advises that he is never consulted, nor informed, about D’s treatment and care.

He is advised through D’s counsel that she has been diagnosed with depression, social anxiety and generalized anxiety, PTSD and OCD and has nightmares, low self-esteem and intrusive thoughts. He emphatically asserts that D did not experience any of these issues while she was in his primary care. The father explains that D, who previously enjoyed significant academic success, has dropped out of her academic courses, refuses to attend school in person, and has a poor (online) attendance record. He believes that she has withdrawn from her previous circle of friends to her social detriment.

The father asserts that urgent family reunification therapy would assist D in regaining the stability that she previously enjoyed.

[ 11 ] An Affidavit has been filed by the Office of the Children’s Lawyer clinician, Ms. Heim. The Affidavit shares D’s strong opinion that she does not want contact with her father at present, and does not wish to participate in any form of therapeutic counselling that involves him. D’s perspective is that the father-daughter relationship was not as positive as the father has represented to the court. She appears to believe that his parenting style was overly coercive and controlling, and that their shared history is what has led to some of the mental health issues that she is presently facing.

D advised that the present litigation, and this motion in particular, is causing her an elevated level of stress and anxiety that has, at times, caused a physical flare-up of her autoimmune disease. D is working with a medical team at Toronto’s Hospital for Sick Children in relation to her physical and mental health issues. She is compliant with the treatments and medications prescribed to her and meets with a therapist bi-weekly.

She disputes the father’s allegations that she is suffering academically and socially and is comfortable with the state of both. [ 12 ] The Respondent mother denies that she has engaged in any alienating behaviours. She asserts that it was the Applicant father who historically engaged in both explicit and subtle gestures designed to undermine the parties’ intended equal parenting regime. The mother emphasizes that she does not interfere with the children’s relationship with their father, and that at this point in their lives their relationship with their father has little to do with her.

She asserts that the father’s portrayal of the children as excelling in his care, and declining since in hers, is an unfair generalization. D is now receiving comprehensive treatment for her illnesses and mental health issues at Toronto’s Hospital for Sick Children. The Respondent mother wishes to respect D’s views and preferences as it relates to her relationship with the Applicant. [ 13 ] The father’s Notice of Motion requests orders for the following relief: 1. An Order that the parties shall engage in family therapy in support of the relationship between the child, D, and her father and paternal family. 2.

An Order that the cost of family therapy shall be split equally between the parties. 3. An Order that the Applicant father shall select one of the following available therapists for the family therapy: (

i) Shazeeda Haroon; or (ii) Deborah Alton. 4. An Order that both parties shall facilitate the child’s prompt registration by providing any consent and documentation required by the clinician on a timely basis as well as ensure that the child attends her scheduled therapeutic sessions with the Family Therapist. 5. An Order that the parties shall sign the Family Therapist’s retainer contract on a timely basis. Subject to court approval, neither party may terminate such services.

Both parties shall use their parental authority to compel the child’s attendance and good faith participation until the services are completed. 6. An Order that the parties and the child shall engage fully in the process of family therapy in good faith, with urgency, and with a view to its successful reconciliation of healthy and involved family relations and a healthy family structure, and in that regard follow he direction of the Family Therapist on a timely basis. 7.

An Order that the parties and the child shall attend all therapy sessions and other events/sessions as directed by the Family Therapist on a timely basis. 8. An Order that the parties and the child shall engage in the family reconciliation process on the basis that they are prepared to surrender past narratives and focus on a healthy basis for future relations and shall not use the family therapy process for purposes of airing or debating past grievances. The Family Therapist shall be responsible for guiding the process with a future-focus, informed by past difficulties. 9.

An Order that the Family Therapist shall have the ability to convene meetings of counsel for the parties and/or write interim reports to the parties/counsel as they determine in their discretion. 10. An Order that the Family Therapist shall have the ability to directly initiate a court case management meeting, by requesting same through counsel to the parties, in the event that they determine that they need further direction, powers or advice to the parties and the child or if they determine that their process is being frustrated or impaired by the actions or inaction of any party or the child. 11.

An Order that in the event of any issue or complaints or concerns raised by a parent as to the conduct of the therapy process, the

Family Therapist shall have the right to convene meetings of counsel to resolve the matter outside of the therapeutic process itself and tomake determinations as to the conduct of their process. The family therapy process shall continue through such parallel discussions andany proceeding brought in court related thereto. 12.An Order for Costs on a full recovery basis, plus disbursements, applicable H.S.T., and interest. 13.Such further and other relief as may be requested and this Honourable Court may deem just.

THE LAW [14] The parties are divorced, however parenting issues were not raised in corollary relief to the divorce action, and as such thegoverning legislation over this case is the Children’s Law Reform Act, R.S.O. 1990, c. C.12. A. Jurisdiction to make an Order for Therapy [15] In A.M. v. C.H. the Ontario Court of Appeal was asked to consider, amongst other things, whether the trial judge hadjurisdiction to order a 14 year-old child to participate in reconciliation therapy: 2019 ONCA 764 .

The Court of Appeal clarifiedconflicting lower court decisions on this topic with the following conclusions and guiding principles: a. The Health Care and Consent Act is not a controlling factor when a judge decides whether to make a therapeutic order in a parentingcase: 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’sLaw 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 indetermining the child’s best interests. Consequently, a child’s refusal to attend counselling is not necessarily determinative of their bestinterests: para. 65. d. There are both risks and benefits to making therapeutic orders which should be considered in the context of the unique facts andspecific circumstances of each case: paras. 72-74. [16] Therefore, making a therapeutic order in this case is authorized by

section 28 of the Children’s Law Reform Act (“CLRA”): Parenting orders and contact orders 28

(1) The court to which an application is made under

section 21, (

a) may by order grant, (

i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (

a) orsubsection 21 (2), (ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or (iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection21 (3); (

b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as thecase may be, with respect to a child; and (

c) may make any additional order the court considers necessary and proper in the circumstances… B. Best Interests Factors [17] Application of the best interests test is a flexible and fact-driven exercise, tailored to the needs and circumstances of the childwhose well-being is under consideration – “case by case consideration of the unique circumstance of each child is the hallmark of theprocess”: Van de Perre v. Edwards, 2001 SCC 60 at para 13. The analysis must remain centered on the rights of the child,from a child-centred perspective – the ‘rights’ of a parent are not a criterion: Young v.

Young, (SCC) at para. 42. Sinceparenting decisions are “pre-eminently exercises in discretion, the wide latitude under the best interests test permits courts to respond tothe spectrum of factors which can both positively and negatively affect a child”: Young, at para. 74.

[18] The applicable parts of

section 24 of the CLRA are as follows: Best interests of the child 24

(1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of thechild in accordance with this section. Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doingso, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Factors

(3) Factors related to the circumstances of a child include, (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any otherperson who plays an important role in the child’s life; (

c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (

d) the history of care of the child; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particularwith one another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issuesaffecting the child; and (

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [19] In considering whether an Order for reconciliation therapy should be made in the best interests of a child, it is helpful toconsider the (pre-A.M. v. C.H.) guiding principles summarized by Jarvis J. in Testani v. Haughton: 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 6. Wherever practical, appropriate direction should be given to the counselor/therapist and a report made to the court: Testani v.Haughton, 2016 ONSC 5827 at para. 18. [20] In Leelaratna v. Leelaratna, Justice Audet suggested the following additional considerations: 1.

Is the cause for the family dysfunction (whether alienation, alignment or reasonable estrangement) clear based on expert evidence orotherwise? If not, does it matter in light of the type of therapy proposed? 2. At what stage is the therapeutic order sought (motion based on potentially incomplete evidence vs. trial based on full evidentiaryrecord)? 3. Are the parents likely to meaningfully engage in counselling despite their initial resistance to the making of the order? Will a strongjudicial recommendation compel participation and cooperation by the recalcitrant parent? 4.

Is the child likely to voluntarily engage in counselling therapy? Leelaratna v. Leelaratna, 2018 ONSC 5983 at para. 69.

C. Weighing the Views and Preferences of Children [21]

Article 12 of the Convention on the Rights of the Child requires state parties to ensure that children who are capable offorming their own views must be given the right to express those views in matters which affect them and that those views must be givendue weight in accordance with their age and maturity: Convention on the Rights of the Child, 20 November 1989, UNTS, vol. 1577,Article 12 (entered into force 2 September 1990). [22] Notwithstanding the court’s jurisdiction to order therapy, the Court of Appeal in A.M. v.

C.H. acknowledged that in the case ofmature adolescents, a tension exists between their strong claims to autonomy and the duty of the court to act protectively. The ‘bestinterests’ standard must be interpreted in a way that reflects and addresses an adolescent’s evolving capacities for autonomous decision-making. Their wishes should carry greater weight as their maturity increases, and scrutiny of their maturity level should intensify inrelation to the severity of the potential consequences of the treatment or its refusal: at para. 66-68, citing A.C. v.

Manitoba (Director ofChild and Family Services), 2009 SCC 30, at paras. 81-88. [23] Generally, in assessing how much weight to give to children’s wishes in family court proceedings, a court should consider: 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: Decaen v. Decaen, 2013 ONCA 2018 at para. 42. [24] The degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the childand will be subject to the judge’s discretion as she seeks to determine the child’s best interests: R. G. v. K.G., 2017 ONCA 108 at para. 67. [25] Where the autonomous medical decision-making authority of adolescents is challenged, the court must conduct a sensitiveassessment of their level of maturity in determining best interests: see A.C. v.

Manitoba (Director of Child and Family Services), 2009SCC 30 . In the context of ‘medical treatment’ cases, the following factors have been articulated by the Supreme Court ofCanada as relevant to the assessment of maturity and the extent to which the purported wishes reflect true, stable, and independentchoices of the child: i. What is the nature, purpose and utility of the recommended medical treatment? What are the risks andbenefits? ii.

Does the adolescent demonstrate the intellectual capacity and sophistication to understand the informationrelevant to making the decision and to appreciate the potential consequences? iii. Is there reason to believe that the adolescent’s views are stable and a true reflection of his or her core valuesand beliefs? iv. What is the potential impact of the adolescent’s lifestyle, family relationships and broader social affiliationson his or her ability to exercise independent judgment? v. Are there any existing emotional or psychiatric vulnerabilities? vi.

Does the adolescent’s illness or condition have any impact on his or her decision-making ability? vii. Is there any relevant information from adults who know the adolescent, like teacher’s or doctors? See paras.69-70, citing A.C. v. Manitoba (Director of Child and Family Services), at para. 96. D. Implications/Additional Considerations Re: Making Therapeutic Orders that are Contrary to the Views and Preferences of MatureMinors [26] Briefly, the Health Care Consent Act (“HCCA”), amongst other things provides the statutory framework for addressing

capacity and consent to treatment. Under the HCCA a health practitioner is not permitted to administer treatment to a capable personwithout their informed consent: s. 10. “Treatment” specifically includes anything that is done for therapeutic or other health-relatedpurposes: s. 2(1). [27] Whether reconciliation therapy is properly classified as ‘treatment’ was not explicitly decided in A.M. v. C.H. The questionof ‘forcing treatment’ on an informed and unwilling participant did not directly arise, and as such the Court of Appeal declined to furtherexplore the applicability of the Health Care Consent: para. 77.

The court noted both: a. The value of broad remedial options to courts in parenting cases: …time and time again, experienced family court judges have emphasized the value of access to a broad variety of remedial measures. Again, in Leelaratna, the trial judge observed, there are often no legal solutions to family problems. Therapeutic orders can be veryeffective tools to help the family move forward, reduce the parental conflict, and help children transition through the emotional turmoilof their parents’ litigation in a healthier way”: para. 73; and b.

The practical limitations of such remedial options: “There are of course risks in making therapeutic orders. The child may refuse to comply. A health care practitioner may consider thatthe child is capable and that he or she cannot override the child’s refusal. The attempts at therapeutic intervention may fail. Courtscannot fix every problem”: para. 72. [28] With respect to the practical implications of making a therapeutic order that runs contrary to the views and preferences of amature minor, I am mindful that: a.

Parents are not required to do the impossible – they are however required to do all that they reasonably can. They must take concretemeasures to apply normal parental authority: Goddard v. Goddard, 2015 ONCA 568 at paras. 26-33; and b. “Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform theymust. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go toschool or otherwise misbehaves. The job of a parent is to parent”: Geremia v. Harb, (ONSC) at para. 44; but c.

The older the child, the less likely it is that she will comply with an order that she is strongly opposed to. As such, the older thechild, the more a parenting order requires the cooperation of the child and consideration of her wishes: Kaplanis v. Kaplanis, (ONCA) at para. 13. ANALYSIS [29] The court’s clear authority to order the family, including D, to participate in reconciliation therapy, should not be interpretedin a manner which suggests that the court has the authority to take away D’s primary right to accept or refuse therapeutic treatment underthe HCCA.

Although D has not yet communicated a refusal to participate in treatment directly to the applicable health practitioner, thisis not a case where D’s position on reconciliation therapy is unknown to the court. The court is very aware, through her legal counsel,that D is strongly opposed to participating in family therapy treatment with her father.

While the HCCA is not a controlling factor in thiscourt’s decision, D’s opposition to family therapy is likewise not a factor which should be ignored. [30] The Applicant father argues that the loss associated with the fracture of the father/daughter relationship will lead to long-termnegative implications in D’s future life. He argues that family therapy is a “win/win” solution, with no downside: the long-term benefitsof repairing the relationship will outweigh any short-term discomfort of the child.

He states that at this age, immediate family therapy isD’s last chance to exit childhood with strong bonds with both of her families, and the court should not give up simply because D isnearing the age of majority. He urges the court to consider not “why?” but “why not?” order reconciliation therapy in the circumstancesof this case. [31] By contrast, the Respondent mother and the Office of the Children’s Lawyer, on behalf of D, argue that D has reached an ageand level of maturity where her views and preferences should be the controlling and determinative factor in the best interests analysis.

They assert that making an order contrary to D’s expressed views and preferences, at her current age and level of maturity, would causeher additional resentment, stress and emotional harm and that the threat of forced therapy is serving to cause further estrangementbetween herself and her father. [32] Both parties have been able to produce multiple examples of cases where the courts both order and decline to orderreconciliation therapy for mature minors. It remains that each case must be decided on its own unique facts and circumstances: the bestinterests of D, are unique to D.

Her individual physical, emotional and psychological safety, security and well-being must remain thiscourt’s primary focus. [33] A comprehensive analysis of D’s best interests is made more difficult in the circumstances of a short motion, argued on thestrength of Affidavit materials alone: a. It is difficult for this court to assess whether there is a rational or realistic basis for D’s present feelings towards her father, and/orwhether the Respondent mother has engaged in any misconduct or marginalizing behaviours which have contributed to the deteriorationof the father/child relationship.

The court is left in doubt as to the true cause of the current contact issues – there is no obvious answer. The father urges the court to note multiple cognitive distortions in D’s views, as reflected within the Affidavit filed by the Office of theChildren’s Lawyer, and to find his version of facts to be more credible. With respect, I can make no such finding. I am not satisfied, on

the basis of the Affidavit materials alone, that D’s present negative feelings and beliefs towards her father are completely unjustified, or disproportionate to her actual past experiences. b. The father believes that D was stable in his care, and has been in a state of physical and emotional decline since her disassociation from him. By contrast, D asserts that she suffered from undiagnosed depression and anxiety while residing with her father and that she did not receive the medical care and attention that she required.

The father and D disagree about whether D attempted suicide while she resided in his primary care. D asserts that her physical and mental health have stabilized, with the assistance of a supportive medical team, prescription drugs, and regular therapy since she moved in with the Respondent mother. D has expressed to her counsel and her therapist that this litigation is causing her extreme stress and anxiety. c. It appears to this court that historically D enjoyed a close bond with her father. Today, it appears that D enjoys a close bond with her mother.

The court is unable to conclude with confidence, on the strength of the Affidavit materials filed, that either parent has engaged in behaviour or conduct which has overtly discouraged D’s connection to the other parent. Likewise, the court is not confident that either parent has made a genuine and continuous effort to support the development and maintenance of D’s relationship with the other parent. Rather, it appears that the ability and willingness of each of D’s parents to support the other parent, and to communicate and cooperate with one another on matters affecting D has been rather non-committal.

Neither party is without reproach. d. Historically, the father appears to have provided able care for D. Today, despite the father’s allegations to the contrary, it is my impression that D’s somewhat complex medical and emotional needs are being satisfactorily met with the support of the Respondent mother. The disruption to D’s education caused by her medical issues appears to have been remedied, although supporting documentation at least with respect to D’s academic progress, should be provided to the father which confirms this representation.

D appears to have a clear understanding of her medical treatment plan. Her plan includes continued treatment by her medical team at Toronto’s Hospital for Sick Children, including ongoing counselling and compliance with medication. She perceives the Applicant’s attempts to obtain medical information from her medical team as an effort to exert undue control over her medical autonomy, and an unreasonable intrusion into her privacy. [ 34 ] What is plain and obvious from the Affidavit materials filed are D’s views and preferences. She clearly does not want to be forced into family therapy which involves her father.

She has continuously expressed this strong position to her counsel. The weight to be assigned to these views and preferences, must be assessed in the context of D’s age and maturity, and considered against the more neutral best interests factors reviewed above. In that regard, I note the following: a. D is almost 17 years of age. She is at the stage of development (late adolescence) where she is moving towards separation from her parents and the development of her own identity: see AFCC-Ontario, Parenting Plan guide, January 2020 at page 24. b.

D’s views on family therapy with her father are clear and unambivalent. Her instructions to counsel have been direct, detailed, and unwavering during the period of her legal representation. She does not consent to therapeutic treatment as sought by the father. c. D’s present views, whether justified or not, are informed. She has carefully reviewed the father’s Notice of Motion and supporting Affidavit and has provided a line-by-line response through the Office of the Children’s Lawyer clinician.

She is not unfamiliar with the concept of therapy: she has participated in counselling with her father in the past, and is currently engaging in bi-weekly sessions with her own individual counsellor. She appears to have the intellectual capacity, sophistication, and life experience necessary to understand the request before the court. d. There is no compelling evidence of parental influence over D’s position. In fact, there is a notable absence of many of the obvious hallmarks of parental alienation that one often sees in high-conflict/parental alienation cases.

These parties do not appear to be engaged in ongoing warfare with one another. [ 35 ] I am of the view that D’s views and preferences must be afforded considerable weight. [ 36 ] D’s strong opposition to therapy also poses a practical problem of enforcement.

The court is asked to impose such terms as: a. “Both parties shall use their parental authority to compel the child’s attendance and good faith participation until the services are completed”; b. “The parties and the child shall engage fully in the process of family therapy in good faith, with urgency, and with a view to its successful reconciliation of healthy and involved family relations and a healthy family structure, and in that regard follow the direction of the Family Therapist on a timely basis”; and c. “The parties and the child shall engage in the family reconciliation process on the basis that they are prepared to surrender past

narratives and focus on a healthy basis for future relations and shall not use the family therapy process for purposes of airing or debating past grievances”. [ 37 ] It is now settled law that the court has the discretion to make therapeutic orders in the best interests of children, even in the absence of the consent of a mature minor. However, this authority should not be conflated with the practical considerations of how the court would compel compliance with such an order. [ 38 ] As indicated above, the cause of this family’s dysfunction is not clear to the court.

It is possible that the fracture of the parent-child relationship is a result of marginalizing behaviours. It is equally possible that the current state of the relationship results from realistic estrangement. It is however evident that D is very unlikely to voluntarily engage in counselling therapy. This raises practical issues with respect to her compliance with any court-ordered therapy. First, it is difficult to imagine how the Respondent will compel the physical attendance of D at the office of a family therapist – D is of an age where both her feet and her wheels may do the talking.

Second, it is possible that a therapist will be unwilling to force D’s treatment in the face of her mature objection under the HCCA . Third, even if D does agree and does attend the therapy, it is unlikely that she can be compelled to approach the therapy from the state of mind sought by the Applicant in his Notice of Motion. [ 39 ] 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. [ 40 ] I do not agree that focusing on “why not?” is the appropriate approach to consideration of the subject-matter of this motion. Generally, most people would acknowledge that there are positive benefits which can be achieved through therapy, regardless of the presence or absence of underlying issues which favour treatment. However, 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. [ 41 ] The obvious general benefit of family therapy is the potential for a stronger, healthier relationship between D and her father and all of the corresponding long-term benefits that may be associated with a secure attachment to her family. I accept that family therapy has the potential to facilitate a positive result, regardless of the cause of contact issues. However, the possible risks of forcing D’s participation are (

i) further entrenchment of D’s current position arising from a perceived attack on her developing autonomy and independence, and (ii) the potential exacerbation of her physical health issues (i.e. symptoms relating to her autoimmune disorder) and mental health issues (i.e. anxiety and depression), triggered by the stress of being forced into unwanted therapy.

The mental health vulnerabilities described by D within the clinician’s Affidavit should not be minimized (e.g. nightmares, low self-esteem, intrusive thoughts, etc.), nor should D’s representation that she feels that her mental health has greatly improved with the assistance of her medical team and that she is presently in a stable place. D has specifically emphasized that the subject of this litigation is extremely upsetting to her, and is causing her additional stress and anxiety.

I accept that, in the face of D’s unique views and vulnerabilities, that a cautious approach is preferable. [ 42 ] In the specific circumstances of this case, I find that it is not in the best interests of D to make an order requiring her to attend family therapy. I am not satisfied that the potential benefits outweigh risks associated with an order for treatment in the context of D’s mature opposition to same. D is engaged in individual therapy. I encourage her to continue.

If she has not already raised the topic of her estrangement from the Applicant with her therapist, I encourage her to do so - so that together they may discuss the long-term benefits of healthy attachments to both of her parents, and explore how she might move towards repairing her relationship with the Applicant when she is ready. [ 43 ] It is clear from the materials filed that the Applicant loves D and genuinely wishes to reestablish their connection. The court has the utmost sympathy for the sense of loss that the father is experiencing as a result of this fractured relationship.

However, this court must not lose focus: it is the best interests of D, and D alone, that the court must be concerned with. It is understandable that the Applicant did not wait to address this issue at trial, with the benefit of more fulsome viva voce evidence. Time was not on his side. This court remains hopeful that D will accept that the father’s motion was brought from a place of good intention - to work towards repair, and that she will one day return to a place where she is open to a relationship with the Applicant.

If and when D wishes to engage in future therapy with her father, I expect that it will likely fall to him to fund the cost of same. As a result, I am not inclined to order any costs against the father for pursuing this motion, despite his lack of success. [ 44 ] I thank counsel for their very helpful and informative oral submissions and written materials. ORDER [ 45 ] On the basis of the above, there shall be an Order to go as follows: 1. The Applicant father’s motion dated January 18, 2023 is dismissed. 2. The parties will bear their own costs of this motion.

Bale J. Date: March 13, 2023