Breaching Access Orders: Is a Parent in Contempt if the Kid Won’t Cooperate?
If a court orders one parent to facilitate and encourage access to a child by the other parent, what happens if the child doesn’t want to participate? More specifically, how far does the parent have to go to “encourage” the child to cooperate, before being held in contempt of court themselves?
This was one of the issues in a recent Ontario case. The parents were married for about six years and had two children. One child lived principally with the father; the other stayed with the mother, who brought various unsuccessful motions to limit or terminate the father’s access to that child.
Then, responding to what the father felt was the mother’s attempt to actively thwart his weekend access rights over a six-month period, the father brought a motion asking the mother to be declared in contempt. Although that motion was dismissed, the court expressed serious concerns that the mother was trying to alienate the now-12-year old child from her father.
The father brought a second contempt motion after the mother failed to drop off the child at her paternal grandparents home one Friday, and on several subsequent Fridays. In her defence, the mother claimed that she had done her best to allow the father to have access, but the child herself had persistently refused to see him.
The motions judge found the mother was indeed in contempt, after concluding she had met the established legal test of being in “deliberate” and “willful” disobedience of a court order. The judge added that the mother had “effectively abdicated her parental authority on the issue of access” because she had not taken steps to ensure the daughter complied.
The mother appealed. She asked the court to consider whether, in light of the daughter’s own refusal to participate in seeing her father, the motions judge had erred in concluding that the mother had deliberately and willfully breached the access order.
The Ontario Court of Appeal did not think any error had been made by the previous judge on the contempt motion. It wrote:
Although a child’s wishes, particularly the wishes of a child of S.’s age, 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. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order” …
No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant’s failure to do do all that she reasonably could: she failed to “take concrete measures to apply normal parental authority to have the child comply with the access order”.
As the motion judge noted, the appellant had been put on notice in prior proceedings that more than mere encouragement was required.
The Appeal Court also endorsed the following observations of the motion judge:
[W]hat does the mother do when this child doesn’t want to go to school or doesn’t want to go to the dentist? What are her mechanisms? Right? … Does this child have an allowance? Does she have a hockey tournament that maybe she’s not allowed to go to if she doesn’t go to see dad before? Are there things she could do to force her to go short of the police attending at her house and physically removing her?
Here, there was ample evidence – including emails between the parents — that the mother had essentially left it up to the daughter to decide whether she wanted to see her father. The Appeal Court concluded:
It is possible that nothing short of physical force could have brought S. to the access visits. However, this does not excuse the [mother] given the motion judge’s finding that she has not done all that she could to attempt to comply with the access order. The motion judge found that despite being on notice that attempts at stronger forms of persuasion may be required, the [mother] did not go beyond mere encouragement. In these circumstances, the motion judge properly concluded that deliberate and wilful disobedience was established beyond a reasonable doubt.
The mother’s appeal was dismissed; the finding of contempt against her was allowed to stand.
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