When parents go through a separation, the effects on children can be harsh. Often, children benefit from counselling. Usually, both parents agree and provide their consent for this to occur. But occasionally, one parent will not consent. This leaves the other parent, and the child, in a difficult spot.
Unless a court order says otherwise, both parents are most often the joint guardians of their child. This means that they both need to provide their consent for their child to participate in activities such as counselling. If a counsellor cannot get the consent of both parties, they likely are not able to proceed.
In any application for a custody and access or parenting order, the only consideration the Judge makes is what is in the child’s best interests.
There may be some situations where counselling is not appropriate given the needs of the child. There may be legitimate concerns about the cost of counselling, whether the proposed counsellor is qualified, or if the type of counselling is appropriate. Most parents can work together to determine what is in their child’s best interest. However, there are situations where counselling is in a child’s best interests but one parent will not consent to it for reasons that are less legitimate. This is particularly troubling in cases of family violence. The perpetrator of family violence may not consent to counselling because they do not want the counsellor to discover more about what they have done or they do not want to admit that violence is a real issue in their family. What can the other parent do?
The parent who believes the counselling should occur can apply to the court to dispense with the other parent’s consent for counselling. There are two main routes to obtaining such an order: (1) as part of a custody and access or parenting order; or (2) as part of a Queen’s Bench Protection Order.
Parenting orders, or custody and access orders, can deal with all parenting issues in dispute between separated parents, including decision-making for children. A parent can apply for an order as part of a custody and access order under s. 16 of the Divorce Act, or a parenting order under s. 32 of the Family Law Act. A parent can apply for whatever terms are required such as:
- with whom the child will live;
- what access or parenting time schedule the parents will follow; and
- who makes decisions for the child, including decisions about “health-related treatment”. Generally, counselling is considered “health-related treatment”.
The perpetrator of family violence may not consent to counselling because they do not want the counsellor to discover more about what they have done or they do not want to admit that violence is a real issue in their family. The perpetrator of family violence may not consent to counselling because they do not want the counsellor to discover more about what they have done or they do not want to admit that violence is a real issue in their family. If there is already a custody and access or parenting order in place, a parent can apply to change, or vary, that order to include a term who can consent to health-related treatment, or more specifically, counselling for the child.
In any application for a custody and access or parenting order, the only consideration the Judge makes is what is in the child’s best interests.
A Queen’s Bench Protection Order (“QBPO”) is granted under the Protection Against Family Violence Act (“Act”). An Emergency Protection Order can turn into a QBPO or it can be applied for on its own. QBPOs can provide protection to claimants and their children where there has been family violence. In this Act, family violence is defined specifically as:
- any intentional or reckless act or omission that causes injury or property damage and that intimidates or harms a family member;
- any act or threatened act that intimidates a family member by creating a reasonable fear of property damage or injury to a family member;
- forced confinement;
- sexual abuse; and
- stalking
If there has been this kind of family violence, a Judge may grant a QBPO which may include no contact conditions, area restrictions, and other terms including “a provision authorizing counselling for a child … without the consent of the respondent”. The parent (or “claimant” in this case) must prove the underlying family violence to be granted this kind of order.
Unless a court order says otherwise, both parents are most often the joint guardians of their child.In either situation, the Judge will need evidence to support why it is necessary to dispense with one of the parents’ consent. For example, there should be evidence showing that that someone has made reasonable efforts to get the parent’s consent and that it has been refused. There should be evidence indicating the child would benefit from counselling, for example, that they are struggling at school or have made concerning disclosures about what they have seen or feel. There should also be some information about what kind of counselling is being proposed including who will provide the counselling and their qualifications. The issue of who will pay for the counselling should also be addressed.
It is ideal if parents can speak to a lawyer to get individualized advice about their situation and what kind of application, if any is right for them. It is also ideal to have a lawyer assist in bringing any court application. If a parent cannot afford to speak to a private lawyer, they may be able to access brief advice from an organization such as the Edmonton Community Legal Centre or Calgary Legal Guidance. Parents can get procedural information from Resolution and Administrative Services throughout the province.
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