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Allegations of non-compliance with parenting orders can arise when a parent refuses to facilitate parenting time and claims that a child’s resistance to having contact with the other parent should guide parenting arrangements. The parent may explain that they are not preventing contact, but that the child’s decisions should be respected. But courts have been clear that these explanations will not absolve a parent from their responsibility to follow the terms of a parenting order. Parents cannot simply leave compliance up to the child.
Mother Cites Children’s Wishes in Refusing to Follow Parenting Schedule
In Hamid v. Hamid, the parties separated in 2019. They had two children, and a final order stipulated that they shared joint decision-making responsibility over the children, with the children spending a week at a time in each parent’s care. The parties initially followed the order, but the father began to experience challenges picking the children up for his parenting time. At one point, the mother emailed the father and advised him that she had not prevented the children from having contact with him, but that it was their choice, and that she would not force them to do anything that made them uncomfortable. The father retained counsel, who informed the mother that the father did not accept the unilateral termination of his parenting time. The counsel further stated that if the children expressed those views, they did not determine whether the court order should be followed or not.
By March 2023, the father filed a Notice of Contempt Motion, alleging that the mother was in contempt of court because she had failed to facilitate the shared parenting schedule. The mother denied the allegation and explained that the children did not want to visit the father for their own reasons, which she attributed to his own behaviour. The father requested that the court find the mother in contempt and impose a penalty.
Mother Intentionally Disobeyed the Court Order
The judge first considered the test for determining whether a party is in contempt of court for breaching a court order. In Moncur v. Plante, the Ontario Court of Appeal set out the principles and a three-part test:
(1) The order alleged to have been breached must state clearly and unequivocally what should and should not be done;
(2) The party alleged to have breached the order must have had actual knowledge of it; and
(3) The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
In Hamid, the first two requirements were clearly met. With respect to the third requirement, this was also met as the mother did not provide any evidence that she attempted to comply with the order. She merely stated that she suspended the father’s parenting time based on the children’s wishes. Her actions were intentional, and she breached the order. The question was whether the children’s alleged resistance to having contact with their father absolved the mother of her breach of the contact order.
In Hatcher v. Hatcher, the court explained that parents have a positive obligation to comply with parenting orders, even when a child allegedly resists contact with the other parent. The parent must understand that they are not entitled to leave the decision up to the child. Courts have also pointed out that parenting children extends to ensuring that children perform tasks they may resist. In Godard v. Godard, the Ontario Court of Appeal agreed that courts should consider children’s wishes before they make a parenting order. However, once a court has determined that contact is in the child’s best interests, parents cannot leave compliance up to the child’s discretion. The Court acknowledged that it may become difficult to comply with an order as children get older. Yet, the Court explained that,
“Parents are not required to do the impossible to avoid a contempt finding. They are, however, required to do all that they reasonably can.”
In Godard, the mother needed to do more than merely encourage the child to visit her father. However, she did not take any further steps and failed to go beyond mere encouragement, applying other forms of persuasion. In that instance, the Court concluded the mother’s actions constituted deliberate and wilful disobedience of the court order.
Parties Must Use Their Parental Authority to Ensure Children Comply
In Jackson v. Jackson, Justice Chappell reviewed the principles concerning a parent’s obligation to comply with a parenting order. It was clear that parents need to facilitate compliance, which can require them to “take concrete measures to apply normal parental authority to have the child comply”. And the judge set out several considerations that courts can review when weighing whether a parent took appropriate actions, which included addressing the following:
- Did they engage in a discussion with the child to determine why the child is refusing to go?
- Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them?
- Did they offer the child an incentive to comply with the order?
- Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?
However, in this instance, the judge found that the mother had taken no steps to ensure that the children saw their father. For example, she allowed a young child who was only 9 years old to decide whether to visit his father. She failed to assert her parental authority over the child, which supported the finding that the mother failed to do what she reasonably could to comply with the final order, thereby justifying the conclusion that she was in willful disobedience of the court’s order. Yet, the judge found that a finding of contempt at that time was not appropriate. Instead, an enforcement motion could ensure the parenting terms in the final order were reinstated. But the judge cautioned the mother that if she did not comply, the father could then bring a contempt motion, exposing her to additional penalties.
Parties Cannot Claim Lack of Compliance is in a Child’s Best Interests
Justice Sager looked broadly at the frequency with which courts encounter parents who argue that a child resists contact with another parent. The judge concluded that there are too many cases where parents improperly permit children to decide whether they will see the other parent. Often, these are cases where the parent has decided not to “apply normal parental authority” to ensure they comply with court orders concerning parenting time. The judge also recognized that in many cases, the party who has not complied proceeds to argue that they are “justified due to the child’s resistance to contact and that they are just acting in the child’s best interests”. In McCarthy v. Murray, Justice Braid considered this framing. It determined that it was an unacceptable stance and that it would be “irresponsible for counsel to suggest” in those circumstances that the parents’ actions were appropriate or aimed at meeting a child’s best interests.
Here, Justice Sager reiterated that litigants must understand the importance of complying with court orders. Alternatively, if they have evidence that an order is no longer in a child’s best interests due to a material change in circumstances, they must seek to vary that order. She also suggests that there is a role for counsel, who need to advise their clients that orders dealing with parenting time must be complied with and cannot be unilaterally changed. Ultimately, if a parent believes that a parenting order needs to be changed to support a child’s best interests, they have the burden of presenting evidence to the court and explaining why the change is warranted.
Deferring to a Child’s Wishes May Result in a Breach of a Court Order
When a child is reluctant to visit the other parent, the “preferred” parent cannot defer to the child’s wishes when doing so would breach a parenting order. Parents have obligations to comply with court orders, which may require them to exercise their parental authority. Failure to do so can result in the court finding a parent in contempt for breaching the order.
Experienced Windsor Family Lawyers Assisting with Decision-Making Responsibility and Parenting Time Arrangements
Failing to facilitate court-ordered parenting time because of a child’s resistance can lead to serious legal consequences, including a finding of contempt. As Ontario courts have repeatedly affirmed, parents have a positive obligation to exercise their parental authority and take concrete steps to ensure compliance with final orders. If you are facing challenges with a shared parenting schedule or believe a material change in circumstances warrants a variation of your current order, it is essential to seek professional legal advice rather than taking unilateral action. To speak with an experienced Windsor family lawyer at Johnson Miller Family Lawyers about divorce, decision-making responsibility, or child support, call 519.973.1500 or contact us online.
