Custody & Access
Ensuring Your Child Complies With An Access Order
Parents will know that it can be a battle to get your child to do something that he or she does not want to do. Even after convincing, bribing and threatening to take privileges away, your child sometimes just won’t budge. It’s important to learn to choose your battles, because some things are just not worth fighting over. But as a recent Court of Appeal decision demonstrates, complying with a court order is definitely one of those situations which require you to assert your parental authority.
In Godard v Godard, 2015 ONCA 568, a husband and wife separated in 2005 after 6 years of marriage. They had two children: I., who is presently 15 years old and S., who is 13.
In June 2014, the husband brought a contempt motion alleging that he had been deprived of his access to his daughter S. since January, 2014. Although the motion judge dismissed the contempt motion, he nevertheless noted that the mother’s pattern of behaviour indicated that she was attempting to alienate S. from her father. The motion judge made an order for summer access with a return to weekend access every second week after the summer ended. Despite the order, the father did not have access to S. during the summer or thereafter. The mother justified this by claiming S. refused to attend her visits with her father.
In October, 2014, the father brought a motion for an updated order. An order was granted on November 3, 2014 requiring S. to be dropped off at her paternal grandparents’ house every other weekend. The mother did not comply with the terms of the order.
The father then brought another motion to hold the mother in contempt. The judge found that the mother had left it up to S. to decide whether or not she would visit her father, and that by doing so was in contempt of the order of November 3, 2014.
The mother appealed the motion judge’s decision.
The Court of Appeal found that the mother had a history of trying to limit the father’s access to S. Even though the motion judge accepted the mother’s uncontested evidence, her evidence in fact supported the conclusions that she left it up S. to decide whether she would visit her father or not, and that the mother has therefore “effectively abdicated her parental authority on the issue of access” [para 25]. The Court of Appeal also noted,
“Although a child’s wishes… should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child” [para 28].
The Court of Appeal cited numerous decision in which Ontario courts have 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” [para 28]. The Court of Appeal noted that parents are not required to “do the impossible” but they are required to do “all that they reasonably can” [para 29].
The mother’s appeal was dismissed, and costs were awarded against her.
To speak with an experienced family lawyer, please contact Jason P. Howie online or at 519.973.1500.
To read the full decision, click here.