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In some high-conflict divorces, relationships between a parent and child can break down, so that communication becomes strained, and in some instances, the child may cut off any contact with a parent. Reunification therapy is a process that can help the participants to rebuild a positive relationship. Where therapy has been ordered by a court, a spouse who attempts to frustrate this process may breach the court order and face consequences, as courts have wide discretion to hold them accountable, particularly if a child’s well-being is affected.
Mother Seeks Penalty for Father’s Failure to Engage in Reunification Therapy
Hoang v. Huynh involved a motion the applicant mother brought for an order requiring the respondent father to adhere to a therapeutic reunification process, as well as a request that the respondent pay a penalty for his noncompliance. The parties had two children, and the mother claimed that after their divorce, the father stopped permitting her to have contact with the children. Subsequently, an assessment was completed, which recommended a gradual reunification process. Although there were some attempts to explore reunification, all of the clinicians involved had concerns about the father’s obstruction of the children’s relationship with the mother. Subsequently, a court order required the parties to meet with a therapist and to implement a therapy schedule.
Rule 1(8) of the Family Law Rules provides judges with wide discretion to deal with a party’s failure to abide by a court order, including an order for costs, or imposing a penalty or fine. Specifically, the Rule provides that a court may make “any order that it considers necessary for a just determination of the matter”.
In K.M. v. J.R., the judge explained that once a party has failed to comply with a court order, “the court can fashion a substantive remedy providing it is tied to the breached order such that the remedy will encourage compliance with the breached order”. The judge went on to recognize that it is particularly important for courts to impose appropriate remedies when the well-being of children is at issue. However, a request for relief under Rule 1(8) involves a three step analysis:
- First, courts determine if there has been a triggering event of non-compliance with a court order.
- The court then decides whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party.
- If the court exercises its discretion in favour of the non-complying party, it is left with broad discretion as to the appropriate remedy under Rule 1(8).
Court Has Broad Discretion to Deal With a Party’s Non-Compliance
The first step was to determine whether there had been a triggering event. This was not in doubt, as the father had failed to comply with the existing court order. The mother claimed that the father had attended the therapy sessions and had not facilitated the children’s regular attendance either. The mother included a progress report prepared by the therapist, which confirmed that the father had cancelled eight sessions, had rarely attended or facilitated the children’s attendance at sessions, and that the therapist found it difficult to establish a schedule with the father. Based on the therapist’s description, the judge did not believe that the father fulfilled his obligation to encourage and facilitate the children’s participation in therapy and to cooperate with the therapeutic process.
The father admitted that he “paused” reunification therapy based on his concern for the children’s health. But Justice Leach remarked that he had no entitlement to unilaterally stop treatment, as he was subject to a court order which required him to cooperate with the process. The proper approach was for the father to try to vary the court order. The father was also required to provide the mother with weekly updates about the children. But the father did not routinely provide the required information, and the updates he made were vague and lacked detail.
Judge Emphasizes Parties Cannot Unilaterally Choose Not to Comply With Court Orders
The second step required the court to determine whether it should exercise its discretion in favour of the non-complying party by not imposing a sanction. As such, the father had the onus of establishing that he should not face a sanction despite his failure to comply with court orders. Courts have previously held that discretion should be exercised in the non-compliant party’s favour in exceptional circumstances. Additionally, in Bullock v. Bullock, the judge noted that the court’s decision should “take into account all relevant history of the litigation and, more specifically, the conduct of the non-complying party”.
The father pointed to the children’s ongoing health issues to explain his non-compliance and decision not to pursue therapy. In support, he provided letters from the children’s pediatrician expressing concern about how the children were affected by the “court-imposed reunification process”. However, the judge did not give these letters any weight, finding that the pediatrician had no understanding of the orders or the reason for their issuance. Additionally, there was nothing to suggest that the pediatrician had consulted with or was aware of the reports of the other mental health professionals who were also providing services to the family. Accordingly, his opinion was based on only partial information, which largely came from the father, and the judge did not understand how the pediatrician could attribute the children’s medical and psychological issues to the reunification therapy. Instead, the judge found the evidence suggested that it was the father who primarily contributed to the children’s distress.
Apart from that report, the father did not provide any other justification for his breaches. And it was notable that the father originally consented to the court orders and was represented by counsel when they were made. If he had concerns about reunification therapy, he should have raised them at the time rather than consenting to the order. Finally, the judge examined the father’s conduct over the more than five years of litigation. This was not the first time the father had attempted to obstruct a clinician, and he had previously made scheduling appointments difficult. He had also failed to comply with prior court orders. This all convinced the judge not to exercise discretion in the father’s favour.
Penalties Can Help Ensure Compliance
Justice Leach proceeded to consider the appropriate remedy. The mother suggested a series of penalties that would apply to the father if he failed to make arrangements to meet with the therapist or if he failed to attend appointments. The judge determined that a monetary penalty was appropriate. In Cousins v. Healey, the judge explained that the purpose of a penalty or fine was to “incentivize compliance with court orders and to signal to the offending party that the court will not tolerate non-compliance”. Additionally, in Dalla Bona v. Lucas, Justice Mathen considered Rule 1(8)(a.1) and noted that it provides means to hold unresponsive or defiant parties accountable, and provides a remedy to help “maintain the integrity and coherence of the family law system”.
In this instance, the father had been unresponsive and defiant of the court process. The judge did not believe that there was any other means to incentivize him to comply with the reunification therapy process, and consequently, a monetary penalty was an effective way to hold him accountable. The father was to adhere to the next steps in the therapeutic process as recommended by the court-appointed therapist. And, if he failed to select days for each appointment, he was to pay the applicant a fine of $500 per day until he complied. Additionally, if the child did not attend scheduled appointments, he was to pay an additional penalty of $1000 for each missed appointment.
Johnson Miller Family Lawyers: Representation for Court-Ordered Reunification Matters
The complexities of court-ordered reunification therapy require a nuanced approach to protect the children’s best interests while maintaining the integrity of the legal process. At Johnson Miller Family Lawyers, we understand the stakes involved when a breakdown in communication leads to litigation or non-compliance with court mandates. Our team is dedicated to providing the clear, authoritative guidance you need to address high-conflict family dynamics and ensure all parties adhere to judicial expectations. Whether you are seeking to enforce an existing order or need assistance navigating a challenging separation, we offer effective legal strategies tailored to your specific situation. To speak with us about your family law matter, please fill out our online questionnaire or call the office at 519.973.1500 to arrange a consultation.
