This is the second article in a series dealing with parental access and non-compliance. In this section, we will take a look at some of the discretionary measures used by the courts to enforce parenting access orders.
Given the proper legal advice, most parties are reasonable enough to follow the parenting terms of a written agreement or court order. However, where a party does not comply, the court may exercise its broad authority to make any order deemed necessary to address the non-compliance, such as an order for extra parenting time, or even for a temporary change in the children’s residence to offset the interference of the non-compliant parent.
As a general rule, judges are pretty good at identifying a party driven by anger, spite, entitlement or flagrant disregard for rules and agreements. However, judges are human beings, too. They can miss important details or just make a bad overall decision despite the facts. That is why it is crucial to understand what they look for and what they consider most important in making their decisions. The first such consideration, above all else, is the best interests of the child(ren).
i. Best Interests
The courts will be unlikely to make non- compliance orders which are against the best interests of the children. Some of the circumstances in which the courts have determined a compliance order not to be in the children's best interests include the unjustified use of a police escort, reassessment of an existing access order after a long period of default, and when the compliance order may interfere with a new professional process with potentially greater benefits to the children.
Police Transportation
Brazeau was an access compliance case involving COVID-19 considerations.[1] After seventeen missed overnight visits, the Court granted the father's request for make-up of skipped access. However, the Court declined the father's requested order that future access non-compliance be addressed through police intervention, citing the burden on first responders and inappropriateness of transporting the children in a police cruiser during the COVID-19 pandemic. The language of the Court in this decision is interesting in that the requested police enforcement was not rejected as an inappropriate response to the non-compliance. Rather, it seemed to be primarily denied on the grounds of current social circumstances and COVID-19 risks.
Long Suspensions and Establishment of Alternative Routine
The Court's decision in Youngman revealed a highly relevant factor for cases involving long-duration suspensions of access.[2] Youngman involved a contempt motion against a custodial father by the children's mother. The mother's access had been previously suspended due to her history of alcoholism and relapse, and was restored by a recent order subject to certain accountability requirements. The father subsequently withheld access on the basis of the mother's non-compliance with the accountability terms per his interpretation of the order.
After ruling that the disputed provisions in the order were not certain enough to support a finding of contempt, the Court nevertheless declined to enforce the prior access terms. The Court reasoned that, given that the access was suspended for a long period of time, it would not be in the children's best interest to simply reinstate the prior access order without further investigation of its continued suitability. The fact that parties in these types of cases face the possibility of new court assessments regarding the continued appropriateness of the existing order further demonstrates the primacy of the children's best interests consideration in family law cases.
Professional Processes
The Courts prefer to first exhaust all reasonable alternatives and will not usually interfere with any potential remedial process that has already been commenced. The courts are therefore less likely to impose a non-compliance or contempt order where parties have engaged a therapeutic or dispute resolution professional.
Ruffolo was an appeal of contempt findings for breach of a consent access order.[3] After reversing the motion judge's contempt findings due to insufficient evidence, the Court of Appeal affirmed the best interests of the children as the main consideration in access cases. The Court noted that the parties had begun to involve professionals to help the children with their relationship with the non-custodial parent, and that all professional assistance should be encouraged in the children's best interests.
This decision indicates the courts' preference that it is in the children's benefit for professional involvement, once initiated, to be seen through before resorting to non-compliance mechanisms. It is unclear, however, which types of professional involvement will render contempt motions inappropriate. This may have significant ramifications for engagement of family professionals such as mediators, parenting coordinators and therapists. It is also unclear at which stages of professional intervention this reasoning would apply. The Court's concern over interfering may have been that the professional involvement had barely commenced, and a non-compliance order could end it before it truly started. If the professional services had been in place for six months with mixed results, would the Court decline to make non-compliance orders for further breaches so long as the parties were still engaged with the professional?
This is a challenging consideration. There are great benefits in most cases to enlisting professional help parallel to family law disputes. However, parties who have good reason to anticipate future non-compliance should perhaps consider the impact of such processes, as they may impact their ability to obtain needed court intervention.
[1] Brazeau v. Lejambe, 2020 ONSC 3117 (CanLII)
[2] Youngman v. Dobney, 2020 ONSC 1292 (CanLII)
[3] Ruffolo v. David, 2019 ONCA 385 (CanLII)