Parenting Time & Decision Making

Custodial Parent Has Duty to Promote Other Parent’s Access

Written by Russell Alexander / (905) 655-6335

In these Blogs we have often chronicled the stories of separated and divorcing parents who have fought tooth-and-nail to try to block each other’s rights and access to the child they co-parent in some permutation of post-split custody/access.

Although courts openly lament this sort of uncooperative behaviour, there is no strict rule to prohibit either parent from taking a hard-line approach. (And it does seem to be the way many parents approach these matters).

Yet in an older case called Black v. Barnett the court went so far as to essentially impose a positive duty on custodial parents to foster and promote the relationship between the child and the parent with only access rights.

As background, the case involved a custody/access battle over a 3-year old boy, who was currently in the mother’s custody. The father had essentially abandoned the mother during her pregnancy (and had suggested adoption or abortion instead), but then resurfaced to assert his access rights once the child was born. The court described the trajectory of the father’s interest-level this way:

On August 15th, 1988 mother notified father of the birth. He was told [the boy] was not expected to survive, that if [the father] wished to visit [the boy], he’d best do so before it was too late. The father, his mother … and other family members promptly arrived at the hospital. The prior lack of interest was soon marshalled into an avalanche of parental rectitude and outward devotion for [the boy].

Intense conflict and bitter disagreement over visitation soon marked the hostile parental relationships. Thus the stage was set for continuation of this acrimonious access dispute.

The father’s access to the boy had been set by an earlier court, and he now wanted it increased from its current level of once-a-week for four hours. In entertaining the father’s request, the court pin-pointed the human impetus behind many such access disputes, as follows:

Access applications, unlike other proceedings, are often triggered and propelled by instinctive or complex patterns of behaviour that take on a life of their own. This behaviour may disguise the underlying causation for and purpose surrounding the ongoing parental acrimony.

Despite that reality, the court saw fit to impose a positive duty on parents in these circumstances:

The difficulty in ever-increasing protracted access disputes is determination of the extent, if any, of the entitlement of access. Unless shown otherwise, bitter parental relationships ought not to extinguish the opportunity of the child to share in the unique, separate and mutual benefits derived from the custodial and non-custodial parent. It is only logical where more than one parent influences a child’s development in offering affection, comfort and guidance, the greater the benefits for the child.

The court added that custodial parents have greater role and thus a correspondingly larger obligation to foster the child’s relationship with the access parent:

As the influence and direction of a custodial parent on a regular and ongoing basis is far greater than the non-custodial parent, there is an obligation upon the custodial parent to promote and encourage access. Obstacles and unwarranted conditions to the child’s unfettered enjoyment are expected to be minimized, if not eliminated.

Still, the court reverted to its more pragmatic view:

The practical implementation of these principles, having regard to the nature of the human condition, is the difficulty. It is easier said than done.

Ultimately – and despite expressing serious concern at the poor communication between the parents – the court applied these principles and granted the father’s request, finding overall that it remained in the best interests of the child to do so.

It crafted an Order allowed for significantly-increased access to the father; it also rejected the idea that the transfer of the child from one parent to the other needed to take place at a neutral location with the supervision of a third party. The court found this would create a “stumbling block” and hamper the boy’s enjoyment of the visitation, and noted that the attempt to delegate to others “allows the parents to avoid their duty and obligations as parents to act as parents.”

For the full text of the decision, see:

Black v. Barnett, 1991 CarswellOnt 1455, [1991] W.D.F.L. 965, 28 A.C.W.S. (3d) 208

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.