In many of the child custody and access cases I write about, the central dispute boils down to the fact that the parents of the child are at odds in terms of what custody arrangements they want and how much access they should each have to the children.
But even once a court order is in place, the disagreements can continue, because the parents may be at odds over precisely what the order means, and how it should be complied with. In a typical scenario, the custodial parent will have failed to abide by the terms of a court order setting out specific custody or access, perhaps by keeping the child longer than ordered, or else by failing to facilitate the access rights of the non-custodial parent.
But what if the lack of compliance is because it’s the child – not the parents – who won’t co-operate? What if the child outright refuses to spend time with the access parent?
In a recent set of Blogs, I talked about the concept of “contempt of court”, in family law proceedings especially. This remedy can be imposed on a parent who refuses to comply with a court order or otherwise hampers the course of justice.
What may be surprising is that under Canadian law, in some circumstances a parent can still be held accountable for contempt of court even if it’s the child who thwarts the fulfillment of the court order. This is because of the legal principle that if there is a court order in place, the parent is under a duty to do all that he or she reasonably can in order to ensure that it is complied with. And a finding of contempt of court may follow if the other parent can establish, beyond a reasonable doubt, that the other parent failed to take all of those reasonable steps.
In short: the parent cannot simply leave questions of custody and access up to the child; otherwise, it amounts to an abdication of parental responsibility. In an older case called Geremia v. Harb, Justice Quinn put it well when he said:
Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.
With that said, the contempt remedy is not imposed every time a parent is unsuccessful at coercing a child – particularly an older one – to comply with an order. Rather, the outcome on whether to make a contempt finding will be viewed by the court with its broader duty in mind: which is to balance the need to enforce court orders and to encourage a child’s contact with both parents while respecting a child’s own wishes and safeguarding his or her needs, safety and well-being.
For the full text of the decision, see:
Geremia v. Harb, 2007 CanLII 1893 (ON SC)