When a court sets out parenting arrangements, it is important that parents follow that plan. But what should a parent do when the child resists spending time with the other parent? This can place the parties in a difficult situation, as some parents may not want to compel their child to visit if the child does not want to. Even if the parent who has the care of the child wants them to visit, they may be unsure of how to approach the situation. When contact is ordered by a court, a parent who does not try to facilitate contact with the other parent could be in contempt of court if they do not take measures to have the child comply with the court order.
Parents have an Obligation to Enforce Parenting Time
Parents are expected to abide by court orders until the order is terminated or varied; they do not have the option of disobeying orders that they do not like. Parents also have a role in instilling in their children respect for law and legal institutions. In Stuyt v. Stuyt, Justice Aitken explained that parents who do not do so do a disservice to their children which can leave lasting negative ramifications. Courts have warned that misconduct by a parent that impairs the ability of another parent to have contact with the children will be detrimental to the long-term interests of children. This is because children benefit from healthy relationships with both parents. As Justice Price noted in Hosein v. Dhamoon, “children’s positive self-image, crucial to their ability to adjust successfully to the changes in their family, depends in large measure on the positive regard they have toward each of their parents. If their respect for either parent is diminished, their regard for themselves may also suffer”.
Godard v. Godard is a leading case on the obligations of parents to respect a court order concerning contact and parenting time with a child. That case determined that once a court has found that it is in the child’s best interests to have contact with the other parent, the primary parent cannot leave compliance with the order up to the child. The Court of Appeal explained that parents have an obligation to ensure that “a child who allegedly resists contact with the access parent complies with the access order.” Furthermore, leaving it up to the child to decide whether they want to see the other parent and merely encouraging a child’s contact with the other parent is an abdication of their responsibilities and will be a breach of the court’s order.
Compliance with Court Order Cannot be Left up to Children
Courts interpreting Godard have found that parents have a positive obligation to comply with a contact order. In Villeneuve v. Wilson, the court stated that parents do not have to achieve the impossible, but they do have to do all that they reasonably can to comply with the order. When a child is resisting contact, the failure of the parent to take concrete measures and apply normal parenting pressure to have the child comply can constitute contempt of the court order. Courts have consistently held that compliance with court-ordered contact cannot be left up to the child. That would amount to an abandonment of parental authority over the issue. Contempt proceedings that involve an alleged breach of an order relating to contact with children can be complicated, as there may be a dispute whether the problem of facilitating access is attributable to the child’s refusal to comply, or deliberate interference by the other parent.
In Jackson v. Jackson, Justice Chappel explained that there should be a balance between the importance of enforcing court orders and encouraging contact with both parents, while also considering and respecting the wishes of children and the need to ensure their safety and wellbeing.
A parenting or contact order imposes an obligation on the parties to do all that they reasonably can to ensure the order is complied with. Due to this obligation, a party can be in contempt where one party establishes beyond a reasonable doubt that the other party failed to take all the reasonable steps to ensure compliance with the order. This means that a parent must do more than merely encourage a child to comply, and instead must actively facilitate contact.
Courts have held that even though it can be more difficult to compel a child to comply with an order as that child gets older, the obligation on the parent to promote and encourage compliance does not lessen based on the child’s age. The steps that a parent must take to facilitate the child’s access to the other parent can depend on the circumstances. In Jackson, the judge set out a series of considerations to help determine whether appropriate measures were taken:
- Did the parent 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?
Whether reasonable steps were taken will ultimately depend on the particular facts of each case, while looking at the child’s age, their opinions, and their emotional status.
Failure to Require Contact with Parent a Breach of Court Order
In Dunn v. Shaw, the father sought a finding of contempt against the mother in relation to two court orders. The parties had one son, and the first order provided for joint decision-making, primary residential care to the father, and contact with the mother, while the second order set an alternating weekly residential schedule between the parents. The son had moved in with his father full time, but later moved in with the mother and did not see the father at all, with very limited phone and email contact. The mother argued that she encouraged her son to have in-person contact with his father and discussed the matter with him many times. She also encouraged him to see a counsellor, which he refused to do. However, there was only one example of the mother specifically requiring the son to comply with the order, when she emailed the father saying that the son would be available for a phone call at an appointed time. Otherwise, she described no disciplinary measures or incentives. She also did not state that she ever told the son he was required to comply with the order. The father’s lawyer proposed arranging short in-person visits with an activity, but the mother did not respond and did not indicate she discussed the idea with her son. The judge determined that the mother did not do more than encourage her son to comply, and that she left the decision to comply up to him. The mother disobeyed the order respecting the father’s parenting time.
Document Your Efforts to Enforce Parenting Time
When a court has determined that it is in a child’s best interests to have contact with the other parent, the parents have an obligation to facilitate contact. This means that the parent caring for the child cannot leave it up to the child to decide whether they want to see the other parent. Instead, the parties should document the efforts they took in trying to comply with the order. A parent can have a discussion with the child to try to understand why they are refusing visits, but a parent should be prepared to do more than simply encourage their child to spend time with the other parent and comply with the order.
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