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Posts from the ‘Children’ Category

You Win Some, You Lose Some: Mother Still Ordered to Pay $400,000 in Legal Costs to Father

Unhappy Depressed Woman

You Win Some, You Lose Some: Mother Still Ordered to Pay $400,000 in Legal Costs to Father

This week’s case is not exceptional on its facts, yet it conveniently illustrates a few important ideas:

1) That Family Law litigation can have many ups and downs in terms of who is “victorious” at any given time;

2) That it’s easy to run up enormous costs in the course of trying to come out ahead; and

3) That courts are mindful of how that back-and-forth of litigation can detrimentally affect the children of the marriage.

The mother and father had three children together, aged 14, 13 and 12. Once the parents separated, they agreed that the children would live with the mother, with access to the father on a specified schedule.

However, a dispute arose as to whether the mother was complying with their deal; this led to the father bringing several motions for contempt. Next, there had to be a separate trial, lasting 19 days, to deal with the unwinding of the parties’ financial affairs; A custody-and-access hearing followed soon after, lasting another 22 days. A later review of those arrangements took a 23-day trial-like hearing that took 10 months to complete.

At this point, the father’s legal costs for these proceedings totaled about $400,000; given that he had been successful in terms of the outcome of the various proceedings, the trial judge made an order making the mother liable to the father for that full amount.

The mother then brought an appeal, not only of that costs award but also of the various unfavourable substantive rulings (including one that adjudged that her children had suffered “emotional abuse” at her hands in the preceding 2.5 years. This involved a finding that the mother fostered the children’s distorted reality of their father, based on her own fear and dislike of him).

The Appeal Court began its judgment this way:

Before dealing with the issues raised on the appeal, it is worth recalling for mother and father the bigger picture. The trial judge devoted 45 hearing days to their custody and access dispute. The 2013 Order reversed the custody of the children. More than two years then elapsed before the parties were ready to argue the appeal. During that time, the children have lived with their father. They are now 14, 13 and 12 years old, and they have lived the last seven years of their lives in the shadow of their parents’ litigation. The children are entitled to a stable childhood, not one marked by uncertainties over their living arrangements and contact with their parents resulting from the bitter dispute between mother and father.

The appeal record filed by the parties is voluminous. In the months prior to the hearing, the parties generated a blizzard of new paper with their competing motions for fresh evidence…

In reviewing the trial judge’s reasons, the Appeal Court found no fault with them overall: for example the trial judge’s factual finding that this was “an extreme case”, and that the children were suffering emotional abuse by the mother, was supported by the evidence. Still, for various complex reasons the Appeal Court did find that a review of the access arrangements was merited at this point (and suggested that the review should take no more than a few days – rather than the 20-plus days such a review had taken in the past). The mother’s access to the children was temporarily increased in the meantime.

This meant that in the appeal portion of the proceedings the mother had won some of her arguments; but the father had come out on top in others. In other words, success was divided; this played into the question of whether either of them should pay the legal costs of the other. Specifically, the mother asked the court to award her the full $207,886 she spent bringing the appeal, while the father asked for his costs totaling $124,440. In ruling on the costs issue, the Appeal Court wrote:

The parties enjoyed mixed success on the appeal and, as a consequence, mixed success in respect of the proceedings below. The fairest disposition of the costs of this matter is that the parties bear their own costs of the appeal, and I would reduce the costs payable by the mother to the father under the Costs Order for the proceedings below from $400,000 to $200,000, inclusive of fees, disbursements and taxes.

So even with a partial victory on the appeal, the mother was still on the hook to the father for more than $400,000. Even on a generous interpretation, it’s hard to call that a “win”.

For the full text of the decision, see:

Fiorito v. Wiggins, 2015 ONCA 729

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Should Mother’s Prolonged Breastfeeding Affect Father’s Access to Child?

breastfeeding

Should Mother’s Prolonged Breastfeeding Affect Father’s Access to Child?

In the context of a straightforward custody and access dispute, the father went to court complaining about the level of access he had to his 2.5-year-old daughter. The court described a rather unique conundrum:

Despite the enormous commitment to this child by [the father], his contact has been restricted by the [mother’s] breastfeeding. He has shown patience with [the mother’s] desire to breastfeed the child, patience that has restricted his time with [the child]. Now, due to the fact that the child appears to be thriving, [the mother] argues that there is no need to alter the status quo in a radical way. While status quo is important, the result for a baby would be to deny the father an equal opportunity to parent a child if he acquiesces to the mother’s request to breastfeed.

The court also explained that the parents’ dispute stemmed from the mother’s stance that the father’s legal rights should be trumped by her view of what was in their toddler’s best interests:

It is clear in [the mother’s] evidence that she has not accepted the provision in [the relevant legislation] that both the mother and the father are equally entitled to custody of a child. In an e-mail she sent to [the father] on September 9, 2006, she states the following:

As time goes on there will be more opportunity for you to spend time with [the child]. But a baby belongs with its mother, and if you had an understanding of the needs of a fully breast-fed baby and truly had [the child’s] interests at heart, you would not be bringing this subject up again.

The court then scrutinized the mother’s rationale:

[The mother] has been unwilling to give a timetable as to when the breastfeeding will end. She believed strongly, through medical advice, in the merits to [the child] of breastfeeding; however, the breastfeeding has a secondary impact upon [the father] in that it is used as an excuse to restrict his access. [The child] is now more than twenty-nine months of age and is still being breastfed. [The child] continues this practice not because of literature that suggests that it is important to breastfeed a child after the age of two, but rather because there is no literature suggesting that it is not in the interests of the child to continue this practice.

Faced with these competing interests, the court took a practical approach – it ordered the mother to pump:

The medical evidence that [the mother] presented supports the practice of breastfeeding until a child has reached his/her second birthday. [The father] respected her views, but now the time has come for [the mother] to have greater consideration for the relationship between [the child] and [the father]. If she used a breast pump and provided the milk to [the father], he would be willing to give it to Kai.

The court added that it hoped the mother would heed her own mother’s (i.e. the child’s grandmother’s) advice, to the effect that the child’s best interests were fostered through contact with both parents, and that the prolonged breastfeeding was interfering with that.

For the full text of the decision, see:

Cavannah v. Johne, 2008 CanLII 65587 (ON SC)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

When a Judge “Breaks Up” with a Squabbling Couple

judge-with-couple

When a Judge “Breaks Up” with a Squabbling Couple

The scenario was not atypical: The parents of a now four-year-old girl had spent the past several years since their separation making numerous trips to court to resolve various custody and access issues. Historically, these disputes had involved significant issues around custody and access, but lately had included clashes over more minor things like whether the girl was getting regular naps when with the father, and whether continued breastfeeding and co-sleeping with the mother was impacting her relationship with both of them.

Indeed, each parent’s complaints about the other sometimes drifted into the more petty and mundane: The mother, for instance, had complained that when the girl was on overnight visits with her father, she was distracted during their bedtime FaceTime sessions, because she had been allowed to watch cartoons immediately beforehand. In turn, the father had objected that the mother routinely sent his emails to her junk folder unread (which the judge decried as “sheer nonsense” which “must end immediately”).

Against the backdrop of these unresolved matters – and after making orders to specifically address those already before him – the judge essentially opted out of making any further rulings in the case between this particular couple. The judge wrote:

I believe the time has come for me to direct that I will not in future hear matters pertaining to these parties, unless there is some emergent situation and no other judge is available. I say this because I now have a real concern that rather than struggle to reach a fair compromise on issues, these parties, and particularly the Father, will elect to have someone who knows all about them resolve the issue. In a sense, I am a known quantity. I believe the time has come for these parties to face perhaps an unknown quantity, a new judge in this court, if they cannot, including with the help of, for example, a parenting coordinator, reach agreement themselves.
I think having to face a new judge who knows nothing about them will add a strong incentive or impetus to their resolving issues outside court, rather than litigating them before a known judge.

In other words, the judge decided that it was in everyone’s best interests, most especially that of the 4-year-old girl, that he step away from adjudicating on the dispute in order to give another judge a “fresh eye”, and to encourage the parties themselves to settled their differences without court interventions.

Was the judge’s idea a good one? What are your thoughts?

Z.S.R. v. R.S., 2016 BCPC 200 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

If Custody Switches Every Day, Where Should Kid Attend School?

Mother seeing son off at bus stop

If Custody Switches Every Day, Where Should Kid Attend School?

The parents had joint custody of their 5-year old son, which arrangement featured each of them having equal time with the boy, as well as equal input into decision-making on health, education, religion and extra-curricular activities. They had agreed to a rotating schedule that had the boy’s residence alternate every single day, with weekends alternating on a set schedule.

The problem was that this schedule made it impossible for the boy to attend school in any one place. The parents lived relatively far from each other; the father wanted the boy to attend a school near his home in Richmond Hill; the mother wanted him to attend school near her residence in Toronto. Although by court order any disagreements were to be resolved with the assistance of a parenting co-ordinator, the parents had not been able to reach an agreement on this issue.

Recognizing that the choice should be governed by whatever was in the boy’s best interests, the parents asked the court to impose a solution. In doing so, the court considered the test set out in another case called Askalan v. Taleb, which provided a useful guideline for whenever this issue was to be considered. Among other things, that task primarily involves:

1) Assessing any impact on the child’s stability;

2) Examining how many years the child has attended his or her current school;

3) Considering whether there is any prospect of one of the parents moving in the near future;

4) Considering where the child was born and raised;

5) Assessing whether a move will mean new child care providers or other unsettling features;

6) Examining the decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling; and

7) Considering any problems there may be with the present school.

The court also added that the choice is not to be guided by the proximity of the school to either parent, or whether it is convenient for the child to attend the nearest school. Rather, the decision has to be made on the merits, with consideration of the child’s needs as well. Finally, the court added:

Of paramount consideration is the school that will give the child the best competitive advantage, or provide the greatest confidence and motivation, or that will facilitate the child’s relationship with others, including his parents and classmates, or best promote his all-around development.

The court evaluated these factors in detail, and found overall that although both schools had their advantages and disadvantages, attending the Richmond Hill school proposed by the father would eliminate the need for the boy to wake up two hours earlier each day. This choice was more consistent with the boy’s best interests.

For the full text of the decision, see:

Hamid v. Hamid, 2016 ONSC 5013 (CanLII)

Askalan v. Taleb, 2012 ONSC 4746 (CanLII)

Wilson v. Wilson, 2015 ONSC 479 (CanLII)

Schloegl v. McCroary, 2012 BCSC 1606 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

Wise Words from an Ontario Judge: A Custody Trial “Speaks Volumes About the Parents”

Custody Battle

Wise Words from an Ontario Judge: A Custody Trial “Speaks Volumes About the Parents”

In a decision from earlier this year called Jackson v. Mayerle, seasoned family court judge Mr. Justice Pazaratz began his judgment with these perceptive and disheartened-sounding comments:

1. Why would we need a 36-day custody trial where the basic facts are pretty straightforward?

a. One child. A delightful eight-year-old girl with minor academic issues but no special needs.

b. She loves both parents equally. She wants to spend as much time as possible with each of them.

c. Both parents are equally capable and dedicated to meeting all her needs.

d. But the parents can’t get along or communicate with one another. Not at all.

2. Not such a tough set of facts, really. Nothing we don’t see in family court every day.

3. So why did we need a 36 day trial?

4. Why did we need 20 witnesses, including teachers, a principal and vice-principal, CAS workers, a family doctor, and a custody/access assessor?

5. Why did parents of modest means choose to impoverish themselves – and their daughter’s future — for a needlessly destructive three-year court battle?

6. For the sake of the child?

7. Not a chance.

8. Custody trials are supposed to be about children. But 36 days – that speaks volumes about the parents.

(And the emphasized words are those of the justice himself).

Indeed, it’s common knowledge that there is no shortage of high-conflict family law disputes in our society, and not merely those that end up in court. Virtually everyone knows someone first-hand – be it a family member, friend or acquaintance – who is embroiled in seemingly-endless and costly divorce or custody litigation. It almost seems to be the rule, rather than the exception these days.

Is Justice Pazaratz right? Is acrimonious child custody litigation more about the parents, i.e. their own egos and latent agendas, rather than the best interests of the child? Is it just a thinly-veiled battle between the parents, in the guise of asserting their respective rights in relation to the care of child?

What are your thoughts?

For the full text of the decision, see:

Jackson v. Mayerle, 2016 ONSC 72 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

Mother Tries to Alienate Child from Father – Court Cuts Off her Access Entirely

Mom with kid

Mother Tries to Alienate Child from Father – Court Cuts Off her Access Entirely

Recently I wrote about a case titled “Kids Live with Mom Their Whole Lives – But Her Alienation Efforts Prompts Court to Transfer Sole Custody to Dad” in which the mother of three children lost sole custody of them primarily because she was trying to alienate them from their father, even though the children had lived with her their entire lives.

In a similar case called A.P.V. v. J.L.R., the Ontario court imposed an even more drastic remedy: The mother was prevented from even have access to her daughter (never mind custody), because she was obviously attempting to cut the father out of both their lives entirely.

In that case, the 10-year old child had been the subject of an intense custody battle between the parents since she was only five months old. Both custody and access had shifted back and forth between the parents throughout that time, sometimes by their agreement, but often by way of contested court proceedings. The father had recently been granted temporary sole custody, with supervised access to the mother; however, the mother’s access had been gradually increased to the point where she spent about 40 percent of her time with the mother.

Then, in violation of a court order, the child ran away from the father’s home altogether, and had been living with the mother ever since. The girl refused to see the father, and the court was asked to resolve the matter of custody and access.

The court summarized its dilemma this way:

At trial, both parties were seeking sole custody. And while each party had a plan for some access to the other; it was clear that the choice before the court was much starker: Whichever parent [the daughter] resided with, she could not, for very different reasons, have access to the other.

The evidence showed that the daughter may have adopted as her own various misimpressions and unfounded conclusions about her father that had actually been fed to her by her mother. This included a story that he had allegedly killed a pet cat that she had, that he was “not a nice person”, and that the father refused to pay child support and that he was taking the mother to court because of it. During access visits the mother also routinely spent her time com-plaining at length about the father’s deficiencies as both a person and a parent.

In light of these kinds of incidents (among many, many others) the court reasoned that to give the mother any form of access to the child would undermine the stability of the father’s relationship with her; indeed it might even rupture entirely as it had in the past, during the episode where the girl had precipitously run away from the father’s home, for example. The court also noted that allowing the mother to have supervised visits while attending counselling had clearly not worked in the past: there had been unfavourable assessment of the mother’s parenting skills by various professionals, as well as complaint-prompted investigations by the Children’s Aid Society and police.

Equally important was that despite claiming to support the child’s relationship with her father, the mother clearly preferred for the child to have no relationship with him at all. This did not bode well for the child’s future well-being and spoke poorly for the mother’s parenting ability as well. As the court put it: “The ability of a person to act as a parent includes their ability to support the child’s relationship with the other parent.”

While noting that the court will not automatically order a change custody if the custodial parent refuses access or otherwise interferes with the development of the other’s parent’s normal relationship with the child, it was within the court’s authority to do so in the right case. The court was also entitled to go further where appropriate and deprive the former custodial parent of access as part of the order. As always, the decision depended on what was in the best interests of the child.

In this case, the child deserved stability, permanence and emotional security and she was most likely to obtain that in the father’s full-time care, since he had proven himself better equipped to meet the child’s emotional needs. The court allowed the father’s application for sole custody, and then went on to forbid the mother from having access to the child whatsoever.

For the full text of the decision, see:

A.P.V. v. J.L.R., 2012 ONCJ 658 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

You Be the Judge: Did Order Require Father to Take Legal Advice from the OCL’s Lawyer?

lawyer with client

You Be the Judge: Did Order Require Father to Take Legal Advice from the OCL’s Lawyer?

In an Ontario Court of Appeal case called Mwanri v. Mwanri, the couple had had two children together, both of whom were eventually in the sole custody of the father, with access to the mother. The parents had been involved in various motions and other court proceedings to settle some of their disputes around custody and access. In the latest round, the father took issue with an earlier order by the motion judge on various custody- and support-related matters.

From among several different grounds of appeal that he raised, the father complained that the motion judge’s order had included the following single line:

The parenting/access schedule in this Order shall be monitored by the Office of the Children’s Lawyer and both of the parents shall cooperate with the OCL’s counsel and follow his direction as to the interpretation of this Order.

This prompted a complaint by the father about whether the “follow his direction as to the interpretation” portion of the order was a legally-appropriate order for the motion judge to make, since it seemed to require him to essentially take legal advice from the OCL’s own lawyer, thus constraining his right to consult a lawyer of his own.

The Court of Appeal disagreed with this line of reasoning (although it ultimately allowed part of the father’s appeal on different grounds altogether). The Court explained its conclusion this way:

…[C]ontrary to the father’s submission, nothing in the direction requires the father to seek or follow legal advice from the OCL’s lawyer. The direction stipulates that the parties are to co-operate with counsel for the OCL in respect of the interim custody and access arrangements ordered by the motions judge. It requires the parties to “follow his direction as to the interpretation” of the motions judge’s order. This language simply obliges the parties to follow the OCL’s direction in the event of any disagreement about the terms of the motions judge’s interim order. It in no way prevents either party from consulting with their own counsel and, if so advised, returning any matter of disagreement before the Superior Court for reconsideration or clarification. The parties remain free to retain, consult and instruct counsel of their choice on all matters in dispute.

It’s a narrow distinction, but do you think it is a valid one? Does the Appeal Court’s logic make sense?

For the full text of the decision, see:

Mwanri v. Mwanri, 2015 ONCA 843

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Kids Live with Mom Their Whole Lives – But Her Alienation Efforts Prompts Court to Transfer Sole Custody to Dad

Good dad

Kids Live with Mom Their Whole Lives – But Her Alienation Efforts Prompts Court to Transfer Sole Custody to Dad

In a recent blog I discussed the concept of “parental alienation”, and in particular how some separated or divorced custodial parents make concerted long-term efforts to influence (one might say, brainwash) a child so that he or she does not want to spend time with the other access parent. In many cases, it’s part of a parental plot to eliminate the access parent from the child’s life entirely.

From the custodial parent’s standpoint, the sanctions and repercussions for that sort of behavior can be severe. In an unusual-but-important case from several years ago, the court ordered that three children, age 14, 11, and 9, who had been in their mother’s custody their entire lives, were nonetheless to be immediately placed in the custody of their father.

The couple had met while working as medical professionals in the same hospital. Even after realizing that they were expecting a child together, the mother and her extended family took steps to distance themselves from the father. Eventually, the couple married and had two more children, and when they later separated, there was no formal order obtained in order to deal with child custody. Instead, they went to live with the mother essentially by default. What followed was a concerted campaign by the mother to thwart the father’s every effort to see or maintain a relationship with them, as the court found.

Still – and despite the mother’s steadfast manoeuvers — the father persisted in asserting his legal rights over the years, culminating in a series of court orders and then a successful application to have custody switched to him outright.

The court explained some of the factual background, as well as its rationale for changing custody in such a dramatic way:

The three children of the marriage have been alienated from the [father] over a long period because [the mother] is unable to accept that it is in the best interests of the children to have a relationship with their father. She has been given several opportunities to change her behaviour over many years, and refuses to do so. I find that her unrelenting behaviour toward the children is tantamount to emotional abuse … The views and preferences of the two older children are not their own. And for the children to have any further contact with the [mother], significant therapeutic intervention is necessary.

It is remarkable that [the father] has not given-in to the [mother’s] persistence in keeping his children from him over the last fourteen years and simply gone on with his life without the children as, no doubt, many other parents in the same situation would have and, indeed, have done. It is now time for his and the children’s fates to be free from [the mother’s] control. She has shown that she cannot be entrusted with it.

The best interests of these children require an order for [the father] to have sole custody of them.

For the full text of the decision, see:

A.G.L. v. K. B. D., 2009 CanLII 943 (ON SC)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Wednesdays Video Clip: How Base Child Support is Calculated

 

How Base Child Support is Calculated

In this video we discuss how the Child Support Table in the Guidelines sets out the amounts of support to be paid, depending on the “gross income” of the paying parent and the number of children that the support order covers. Gross income means before taxes and most other deductions. The amounts to be paid are based on the average amounts of money that parents at various income levels spend to raise a child.

In simple cases, the table alone will determine how much money will be paid. In more complicated cases, the table is used as the starting point. There is a different table for each province and territory.

If both parents live in Ontario, the Ontario table applies. Also, if the paying parent lives outside of Canada and the parent with custody lives in Ontario, the Ontario table applies. But if the paying parent lives in another province or territory, the table for that province or territory is the one that applies.

You can get a copy of the Child Support Table for Ontario by phoning 1-888-373-2222.

Or you can visit the Department of Justice Canada’s web site at www.canada.justice.gc.ca/en/ps/sup and click on “Simplified Federal Child Support Tables” to find the table for each province and territory.

The table sets out the amount of support that must be paid at different income levels from $8,000 to $150,000, depending on the number of children. A base amount is given for every $1,000 increase in income, along with a way to calculate amounts in between.

There is also a Simplified Table where you can look up the paying parent’s income to the nearest $100, without having to do any calculations.

Sometimes, a judge does not accept a parent’s statement of income. Instead the judge uses an amount of income that is reasonable based on things such as the parent’s work history, past income, and education. The judge will then apply the table to that income.

A judge might do this if the parent:

• fails to provide the required income information

• is deliberately unemployed or under employed, or

• is self-employed or working “under the table”, and there is reason to believe they do not report all of their income

Before the Guidelines came into effect, judges had more flexibility in deciding the amount of support. Now, in simple cases, judges must order the amount shown in the table. Judges can order different amounts, but only in special cases. And they must use the table amount as a guide.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Getting Kids to Comply with Court Orders: Parents Must Take Active Steps

Uncooperative Child

Getting Kids to Comply with Court Orders: Parents Must Take Active Steps

In a Blog a little while ago How Far Must Parents Go, to Ensure a Kid Complies with a Court Order?, I discussed the obligation on parents to ensure, to the best of their ability, that a child complies with a custody or access order. Not only does this accord with our general sense of justice, but in some circumstances if an order is breached because a child is uncooperative, his or her parent can even be found in contempt of court.

But as custodial parents will attest, the practical task of ensuring that kids comply with a court-ordered access/visitation schedule can seem impossible, particularly when the child is reluctant, resistant, or downright defiant. Forcing an unwilling child to participate only engenders bad feelings on the part of both parents, not to mention the child him or herself.

Still, Canadian family law principles make it clear that a parent cannot simply leave participation and compliance with custody and access orders up to the child; courts have repeatedly stated that to do so amounts to “an abdication of parental responsibility” and more importantly amounts to a shortfall in the parent’s positive obligation under the court-imposed order.

Over the years, various courts have expanded on this general principle, providing a list of the concrete steps that parents must take in order to fulfill their responsibility to coax an uncooperative child to comply with a custody or access order.

Here are the points to know:

• Although courts do recognize that it may be increasingly difficult, a parent’s obligation to compel a child to comply does not diminish as the child gets older.

• A parent must go beyond simply “accommodating” access (i.e. making the child available and encouraging him or her to comply); rather, the parent must require the child to participate, and must actively facilitate that participation.

• A parent must take concrete measures to apply normal parental authority to have the child comply. In assessing whether those measures are sufficient, the court will consider whether the parent:

o Engaged in a discussion with the child to determine why he or she is refusing to go with the other parent;

o Communicated with the other parent about the child’s resistance, and how to overcome it;

o Offered the child an incentive to cooperate; and

o Stated clear disciplinary consequences for the child, if he or she continues to refuse to comply.

The obligations, steps, and responsive measures will vary with each case, and will also depend on the child’s age and emotional condition.

There are many cases that discuss these principles. See for example:

Geremia v. Harb, 2007 CanLII 30750 (ON SC)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com