Among the more difficult aspects for parents to deal with when they get separated or divorced are issues related to parenting time. For a parent who does not have primary parenting time, it can be emotionally difficult to be away from their children. If there is a breakdown between the children and the parent who does not have primary parenting time, the parent with primary parenting time may find it challenging to maintain a harmonious household when the children are unwilling to visit the other parent. What obligation does a parent have to enforce parenting time when the children are not willing participants? Can teenagers impose their will on parenting arrangements ordered by the court? These questions were recently addressed in a decision from the Ontario Superior Court of Justice.
Children decide they do not want parenting time with their father
The parents involved in the dispute began cohabitating in 2005 and separated in 2012. They had two children while they were together. The eldest child was born in 2007, and her younger sister was born in 2010. After their separation, the parents maintained an informal co-parenting arrangement for a short time, but it eventually broke down. In 2017 the parties were subject to a Final Order which stipulated the mother was to have primary parenting time. The decision does not say how often the father had parenting time.
In May 2020, one of the children began experiencing stomach pains and refused to attend the father’s home for scheduled parenting time. By that September, both children were refusing to see their father.
The father told the court the mother had wilfully disobeyed a court order and implied that parental alienation was at play. The mother’s position was that the parenting schedule should be reviewed to reflect what the children would prefer instead of what the Final Order stipulated.
Can or should the court vary the parenting time order?
Rule 1(8) of Ontario’s Family Law Rules states that a court can make “any order that it considers necessary for a just determination of the matter” if one party fails to obey an order. In applying this rule, the case law has established a three-step inquiry that the court must follow:
1. The court must ask whether there is a triggering event of non-compliance with a court order that would allow it to consider the wording of Rule 1(8).
2. If the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under Rule 1(8).
3. In the event the court determines it will not exercise its discretion in favour of the non-complying party,
it is then left with the extensive discretion as to the appropriate remedy under Rule 1(8).
The Court noted the importance of parenting orders to help foster positive relationships between parents and children and demonstrate to children that it is important to follow the law. The Court wrote that one of the major sources of security for children who have separated families comes from a strong and healthy relationship with each parent. The Court quoted a 2017 decision from the same court, that stated
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”
In referring to a 2015 decision from the Ontario Court of Appeal, which is the leading case on the responsibilities of parents with primary parenting time, the Court wrote that parents have a positive obligation to encourage access beyond simply encouraging compliance. Parents are not expected to do the impossible, but they are expected to do everything they reasonably can to ensure compliance with the order.
Furthermore, common law has established that the parent with primary parenting time cannot allow children to decide whether a parenting time order should be followed. In quoting a 2016 decision, the Court wrote,
A parent cannot hide behind the child’s purported wishes as a reason not to comply with a parenting order. A parent who does this abdicates his/her role to the child because the parent does not want to be responsible for the violation of the order, or to suffer the consequences of breaching to order. Whether the parent or the child agrees or disagrees with that order, both must comply with it. It is the responsibility of the parent to show that she is the adult, she is the parent, and she will take appropriate steps to comply with an access schedule.
The mother claimed she had supported the father, encouraged compliance with the order, and impressed upon the children the need to comply with it. However, text messages provided by the father in which the mother made statements such as “I have left it to them to decide if and how much they want to see you”, suggested otherwise. Relying on these text messages, and in the absence of any evidence to the contrary, the Court determined the mother had failed to meet her positive obligation to ensure the children complied with the parenting time order.
The Family Lawyers at Howie Johnson Barristers & Solicitors in Windsor Can Assist with Parenting Time Disputes
If you have found yourself involved in a matter related to family law, the divorce lawyers at Howie Johnson Barristers & Solicitors can help. We provide legal advice and representation for all issues pertaining to family law, including parenting time, post-separation agreements, and child support. Contact us online or by phone at 519-973-1500.