Canadian Lawyer

FEATURE quires the participating parties in whatever it is they're doing consent, where does that leave them? They have a court order to provide re- integration or reunification therapy, but not all of the parties consent. Those are tricky is- sues for people providing the service and for the lawyers, Pawlitza says. There are also other areas where consent is specifically required — for example, in On- tario's Child, Youth and Family Services Act, there are provisions where consent is specif- ically required in certain circumstances, and there are other areas where children are enti- tled to consent in other capacities that are not under the Divorce Act or the Children's Law Reform Act, says Heather Hansen, a partner at Martha McCarthy & Co. LLP. "I'm not minimizing the seriousness and importance of consent, but it is tangled up in, what do we do about these children who are at really extreme risk?" she asks, pointing to research about the long-term consequences to children who are in these circumstances. Hansen says there were two streams of case law prior to the appeal court decision that characterize the way previous lower courts had navigated the consent issue. One stream of case law is characterized by judges who identify the work being done as not therapeutic in nature, and if it's not ther- apeutic, it doesn't require consent under the HCCA. The other stream identified the work as therapeutic and grappled with "all the things that flowed from that on the complex issue of consent, and that is where it can be argued the Court of Appeal resolved the issue with its ruling," says Hansen. "In a number of cases, the HCCA wasn't even mentioned — judges have gone ahead and ordered reunification therapy, but at a certain point alienating or estranging par- ents, and their lawyers got wind of it and said you need the consent," Pawlitza says, noting that she thinks the trial judges real- ly didn't know what to do. "They knew what they wanted to do — they wanted to order reunification or reconciliation therapy that includes a change of custody often in order for that to happen, but nobody had dealt with the HCCA. The Court of Appeal dealt with that squarely." While Pawlitza says the Court of Appeal decision made a lot of practical sense, dis- tinguishing what the HCCA was meant to do and how it applies specifically in family law, Hansen says the issue is going to continue to crop up. "Part of it is there's an underdevelopment of the law on this complicated issue, but also when dealing with parent/child contact prob- lems and the courts are tasked with the re- sponsibility of creating interventions that are going to be effective, unfortunately, even in the best of circumstances, there are actually very few tools that judges have. It's very chal- lenging for judges to deal with these things and they are very fact based," Hansen says. A.M. was a very fact-specific case, and the Court of Appeal did allow fresh evidence that "revealed a very complex set of circumstances for this child," she says. "I'm not saying every case turns on its facts and that what the Court of Appeal said isn't going to become part of the ongoing dialogue, but I don't think the conversation is over on this issue," says Hansen. "I think we're going to continue to see judges trying to stretch to do what's best for children, consistent with their mandate and the direction of the legis- lation, and deal with these challenging issues." Pawlitza says that, while the decision does clarify the court's jurisdiction, things will still be determined on a case-by-case basis, and "the issue of a child's maturity and whether it 24 www.lawtimesnews.com "We all tend to use reintegration therapy as a fallback when we've got a very difficult position — this is the relief we're going to seek — but the Court of Appeal said something wise family lawyers should be passing on: The court cannot fix every problem." Laurie Pawlitza, Torkin Manes LLP FEATURE FOCUS ON FAMILY LAW

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