This article is the first in a short series dealing with a thorny issue in family law: violation of “access” terms and how to address them. The purpose of this series is two-fold:
To help parents and guardians understand their access obligations, and avoid unwitting breaches of access, however well-intentioned; and
To provide guidance to parties who have experienced access problems due to the other party's non-compliance.
Note that the terms “access” and “visitation” have been replaced with the less adversarial term “parenting time” (as has the term “custody” been replaced with “decision making”). However, for the purpose of this series, “parenting time” and “access” will be used interchangeably.
A growing body of research unequivocally affirms the importance for children of having regular and significant access to both parents. Bolstered by these findings, the courts have imposed a heavy responsibility on the parents to comply with court-ordered parenting time provisions to their utmost ability, even when a child opposes the access.[1]
Nevertheless, access breaches in the form of occasional skipped visits or longer periods of withholding are not uncommon. Enforcing such orders presents unique challenges and the process required to gain compliance may be a barrier to many litigants.
I will introduce the issues and discuss some recent Ontario Court decisions and their implication for using contempt motions as a means of gaining compliance for access provisions.
Access and Parents' Obligation
Although most divorced and separated parents cooperate with each other to facilitate access, withholding of access occurs frequently. Often, the breaching party believes it to be necessary or justifies it on the basis of the children's interests. Alternatively, they may feel they had no other option or that they did all they could in the circumstances. This is especially common when the child resists visiting the other parent. However, absent concern of immediate harm to the child, the law requires parents to enforce their child's access even when the child seems to be highly agitated and anxious.[2]
While no parent is comfortable when their child is in distress, this stance is founded on a broad and impartial perspective of the child's best interests, a perspective which may be difficult for embattled parties to fully appreciate. The courts acknowledge the importance of considering a child's wishes prior to making an access order. However, once a court determines a given plan to be in the child’s best interests and makes an order accordingly, compliance with the access order cannot be left up to the child.
In Godard, the Court of Appeal clarified the extent of parents' obligations to enforce access visits.[3] The 12 year-old child had persistently refused to see her father despite her custodial parent's attempts at encouragement. The Court ruled that it is not sufficient for parents to passively enable visits or simply coax the children to comply. Rather, parents must do all that they reasonably can using all means of persuasion, consequences and discipline to enforce access just as they would to enforce other non-negotiable endeavors such as school or medical appointments.
The Court in Janowski further clarified the parental obligations, explaining that parents are required to compel the child to follow the ordered access by all reasonable and necessary measures, such as "explanation, exhortation, and the threat and execution of discipline." These compliance obligations apply equally to orders made on consent. Parties who violate consent access orders may be found in contempt of court.[4]
The courts also recognize that negative parental behaviors and attitudes toward the other parent can contribute toward a child's distress and resistance. In Thomson, the child allegedly witnessed a traumatic incident in which a parent assaulted the other during a drop-off. The custodial parent claimed that as a result, the child cries, screams, hits and has severe anxiety during visits. After determining that the evidence did not fully support the custodial parent's narrative, the Court noted that the custodial parent had overtly opposed the access, passively tolerated the child's tantrums, and engaged in "rescuing" behaviors during drop-offs. The Court insisted that she be accountable for the role which her attitude and conduct played in magnifying and reinforcing the child's distress and negative behaviors.
As a general rule, the courts do not condone the withholding of access. Regardless of their duration or the motivation behind them, access violations invite court intervention and may entail serious consequences for the parties. Therefore, barring genuine concerns of imminent harm to a child, parties with legitimate concerns or motivations should instead go through the proper channels, such as renegotiating the terms of an agreement or bringing a motion to change the court-ordered access terms.
[1] Nielsen, L. (2014) Shared Physical Custody: Summary of 40 Studies on Outcomes for Children, Journal of Divorce & Remarriage, 55:8, 613-635, DOI: 10.1080/10502556.2014.965578
[2] Thomson v. Fleming, 2020 ONSC 2036 (CanLII)
[3] Godard v. Godard, 2015 ONCA 568 (CanLII)
[4] Janowski v. Zebrowski, 2019 ONSC 4046 (CanLII) at para. 24(o)