Case law: Encouraging children to have access time with the other parent

Case law: Encouraging children to have access time with the other parent

Godard v Godard 2015 ONCA 568 tackles the question of how hard a custodial parent is expected to work to encourage a child to have access with the other parent. Here, there were two children, one living with each parent. The father brought a contempt motion against the mother in which he alleged that he had been deprived of his weekend access for 6 months. While initially his motion was dismissed because the judge found that the access arrangements differed from the access order, Justice Cornell noted “serious concerns that the applicant [mother] is engaged in a pattern of behaviour designed to alienate S. [the child] from her father.

Subsequent to this contempt motion, the child (who was 12/13 years old as this was unfolding) continued not to see her father and so he brought a second motion for contempt. He was successful this time, and the mother appealed from that motion, but unsuccessfully.

The mother took the position that she had done her best to facilitate access but that the daughter persistently refused to see her father.

In denying the mother’s appeal, the Court of Appeal considered what is expected of a custodial parent with respect to encouraging and supporting access. In doing so, it reviewed findings by the motions judge that:

  • The mother had left it up to the child to decide whether or not she would see her father
  • There were sometimes positive consequences for her (from the mother) when she did not see her father
  • The mother had “effectively abdicated her parental authority on the issue of access”
  • There were many avenues open to the mother short of physical force to encourage the daughter to see the father and “[had] these measures been utilized and proved unsuccessful, the mother would likely not have been found in contempt of the court order.”

The Court of Appeal wrote:

In our view, the history of this case belies the adequacy of alternate approaches. The appellant has a history of trying to limit or terminate the respondent’s access to S. The respondent has brought numerous motions asserting his access rights in the face of the appellant’s persistent non-compliance with access orders.

According to the Court of Appeal, once it has been determined that access is in the best interests of the child, while the wishes of a child, especially a child of S’s age, are to be considered, a parent cannot leave the decision entirely up to the child. Ontario courts have consistently held that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order.”

As noted in the decision:

No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not expected to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant’s failure to do all that she reasonably could: she failed to ‘take concrete measures to apply normal parental authority to have the child comply with the access order.

More than encouragement is required, and this decision sets out some other situations where parents routinely use their authority even when a child objects: going to school and going to the dentist are two of them.

The decision also suggests ways in which a parent could entice a child into access time with the other parent: withholding allowance or perhaps permission to attend a social or extracurricular event the child wishes to participate in.

Are there things she [the mother] could do to force her [the child] to go short of the police attending at her house and physically removing her?

In its decision to uphold the contempt order, the Court of Appeal confirms that the duty on a parent to support and encourage access time with the other parent is high, and that parents who do not meet this standard run the risk of being found in contempt.

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