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Overview and Assessment of
Approaches to Access Enforcement
2001-FCY-8E
CANADIAN LAWS AND PROGRAMS
This part of the report assesses the laws, judicial decisions and programs of Canada and the provinces and territories. Canada’s third territory, Nunavut, came into existence on April 1, 1999, created from the northern and eastern parts of the Northwest Territories. The laws of the Northwest Territories in existence on April 1, 1999 apply in Nunavut.(11)
In keeping with the child-focused strategy the Canadian government adopted for reform of custody and access laws, this section first reviews access laws and judicial decisions to determine whether they are based on the rights and best interests of the child. Secondly, this section looks at the extent to which preventive and alternative measures for dealing with access disputes are in place. This is followed by a review of legal remedies for access denial and an assessment of the case law to determine how judges are actually dealing with access denial. Measures to prevent and deal with abduction by a custodial parent are then considered. The laws dealing with enforcement of foreign and extra-provincial access orders are briefly discussed, followed by a review of measures to deal with non-exercise of access. Finally, the extent to which access enforcement is a government responsibility is addressed.
Rights and Best Interests of the Child
Access is a right of the child, and access enforcement laws and decisions should protect the rights and best interests of the child. The rights and interests of the custodial parent and the non-custodial parent do not have priority over the best interests of the child. To protect the rights and best interests of the child, access orders should be based on the best interests of the child, and should protect children from parental abuse or violence, the views of the child, when he or she is capable of providing them, should be considered and given due weight, and the best interests of the child should be the primary consideration in access enforcement decisions.
The rights and best interests of the child are protected by the UN Convention on the Rights of the Child, which the General Assembly of the United Nations approved on November 20, 1989. The Convention sets out internationally accepted standards; every country in the world except the United States and Somalia is now a party.(12) Canada ratified the Convention on December 13, 1991, and became bound by it on January 12, 1992, subject to two reservations and one statement of understanding that were deposited at the time of ratification.(13)
Canada’s ratification of the Convention means that Canada is now under an ongoing obligation to report every five years to the UN Committee on the Rights of the Child on its compliance with the Convention.(14) The Convention has not yet been implemented in domestic law in Canada. Although many federal, provincial and territorial laws reflect Convention principles, some do not (see for example, Bailey, 1999; Pellatt & ACLRC, 1999; Society for Children and Youth of B.C., 1998; Fanjoy & Sullivan, 1999). The Convention imposes obligations on states to take legislative, administrative and other measures to implement the rights recognized in the Convention. Implementation of Convention principles should be part of the law reform process in relation to custody and access.
Best Interests of the Child Standard for Access Orders
Under the Convention, a child has the right to maintain contact with the non-custodial parent unless contact is not in the best interests of the child. Parents have a right and duty to maintain contact with their children unless contact is not in the best interests of the child. Governments have a responsibility to respect the child’s right of access.
The Convention states the following:
- Article 9(1): States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
- Article 9(3): States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
Under article 9(3), the best interests principle must not only be a primary consideration in access decisions but must govern the result.
Frequent, regular and unrestricted access may be in the best interests of the child in many cases. However, a wide body of academic research in various disciplines makes it clear that a strong legal presumption in favour of access may undermine the best interests of the child. In addition, this research shows that it is important to assess the needs and family situation of each child (Cantwell et al., 1999). In some cases, the best interests of the child may be served by permitting the custodial parent to relocate with the child, even if this means a drastic reduction in access.(15) When the only choices are no contact or infrequent, erratic visits that distress the child, then no contact may be in the best interests of the child.(16) If the non-custodial parent has no existing relationship with the child, lacks parenting skills, suffers from a mental illness, abuses substances, presents a risk of abduction, or has been violent or abusive, supervised access or no access may be in the best interests of the child.(17) If the parents have a conflictual relationship or the custodial parent has previously denied access, access visits with supervised pick-up and drop-off may be in the best interests of the child (Bala et al., 1998: 35).(18) In cases of continuing high conflict, no access may be in the best interests of the child.(19)
A necessary pre-condition for improving access enforcement is to ensure that access orders meet the best interests of the child standard. This point is worth emphasizing because access orders that do not meet this standard are more likely to give rise to enforcement problems. Researchers in Australia found that after enactment of the Family Law Reform Act 1995, which emphasizes the principle of continuing involvement by both parents, there were serious enforcement and other problems, with several causes:
- a considered decision on the best interests of children does not occur;
- the issue of domestic violence is not adequately taken into account; and
- there are frequently inappropriate unsupervised contact [access] orders made (Submission of the Faculty of Law, University of Sydney, quoted in Australia, 1999: 9).
Many custodial parents will find it difficult to comply with orders that are not in the interests of their children. Judges and law enforcement officials are unlikely to enforce access orders vigorously and whole-heartedly unless they assume that the access ordered is in the best interests of the child.
Another reason to emphasize this point is that law reform initiatives to improve access enforcement are often driven by fathers’ rights groups, who demand stricter access enforcement when governments actively enforce child support orders. This is the case in Canada, in particular at the Special Joint Committee on Child Custody and Access:
A number of witnesses, including a large number of support-paying non-residential parents, objected to the fact that Canadian governments had created a state-financed support enforcement system, present in every province, in which government resources are spent on collecting child support. These witnesses felt that equal government attention and resources should be devoted to access enforcement and that there should be a no-fee enforcement agency at their disposal to deal with access disputes (Canada, 1998b).(20)
There is a risk that the fundamental principle of access being a right of the child that should be based on the best interests of the child will be lost in this context. Thus, in considering reform of access enforcement laws, the first question to answer is whether access orders being made currently are based on the best interests of the child standard.
As indicated in Appendix A, every jurisdiction except Alberta requires that access orders be based on the best interests of the child. Alberta simply requires that the best interests of the child be taken into account. Legislation in British Columbia, New Brunswick, Newfoundland, the Northwest Territories, Nunavut, Ontario, Quebec, Saskatchewan and Yukon includes a list of factors to consider when determining what access order is in the best interests of the child. The federal government (in the Divorce Act), and British Columbia, Newfoundland, the Northwest Territories, Nunavut, Ontario, Saskatchewan and Yukon specifically provide that the past conduct of a parent should not be considered in access decisions unless it affects the ability to parent.
Canadian case law reflects the principle that access is a right of the child, not the parent. In Frame v. Smith, Wilson J. (dissenting but not on this point) said, "The access right has become the child’s right, not the parents’ right."
(21) Many judges have since adopted the following principles: "access is a right of the child to be exercised when it is in the child's best interests"
(22) and "access is the right of the child, and if it is not in the child’s best interests, it cannot be forced upon a child."
(23)
Despite the acceptance of the principle that access is a right of the child and that every Canadian statute requires that access orders be based on the best interests of the child, courts have often applied an explicit or implicit presumptive parental right to access that cannot be rebutted by evidence that access is not in the best interests of the child. In the words of one judge, "I start with the premise that a parent has the right to see his or her children and is only to be deprived of that right if he or she has abused or neglected the children."
(24) Some judges have modified this approach, taking the view that the non-custodial parent should be granted access unless access would create a threat of harm to the child or would be of no benefit to the child.(25) Klebuc J.stated that the notion that access is the right of the child must be coupled with a presumption in favour
of access in order to comply with the principle of maximum contact enshrined in section 16(10) of the Divorce Act, saying that "there exists a rebuttable presumption favouring the granting of access unless there is solid evidence confirming a real risk of danger or harm to the child, or no possible long-term benefit to the child."
(26)
In 1992, the Ontario Court of Appeal equally addressed the issue of whether to apply the best interests of the child test or a presumptive right to access absent proof of risk of harm to access orders. The Court upheld an order, made under the Children’s Law Reform Act, terminating the father’s access because there were unproven allegations of sexual abuse on his part, continuing tension relating to access, and insensitivity on the part of the father to the child’s emotional needs.(27) The father claimed that he had a right to access unless harm to the child was proven. The Court disagreed, stating that "it is not a question of what standard should be used to deprive a parent of access, it is a question of what standard should be used in deciding what form of access, if any, should be ordered. The answer is clear from the statutes: the standard is the child’s best interests."
(28)
The Supreme Court of Canada has rejected, in contrast with the decisions of some lower courts, the application of strong presumptions and has stated that access orders under the Divorce Act should be based on the best interests of the child. In Young v. Young, McLachlin J. made three points about the Divorce Act provisions:
- First, the
"best interests of the child"
test is the only test. The express wording of s. 16(8) of the Divorce Act requires the court to look only at the best interests of the child in making orders of custody and access. This means that parental preferences and"rights"
play no role.
- Second, the test is broad. Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful. Rather, it has been left to the judge to decide what is in the
"best interests of the child,"
by reference to the"condition, means, needs and other circumstances"
of the child.
- Third, s. 16(10) provides that in making an order, the court shall give effect
"to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child."
This is significant. It stands as the only specific factor that Parliament has seen fit to single out as being something that the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase"as is consistent with the best interests of the child"
means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent.(29)
In Gordon v. Goertz, McLachlin J., for the majority, said the following of section 16(10) of the Divorce Act:
- The
"maximum contact"
principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact.(30)
The Supreme Court of Canada has clarified that the "maximum contact"
principle does not displace the best interests of the child standard, but some lower courts have applied this principle to rule that there should be a presumptive right of parental access absent proof of harm. The Special Joint Committee on Child Custody and Access recommended that section 16 be amended to include a list of factors that the court should consider when determining the best interests of the child, and that the "maximum contact"
principle be only one of the factors to consider (Canada, 1998b, Recommendation 16). This recommendation should be implemented to clarify the relevant factors that courts should consider and that the "maximum contact"
principle is only one such factor. Implementation would also keep judges from making access orders that are not in the best interests of the child, which are more likely to give rise to access enforcement problems.
Alberta’s legislation should be amended to require that access orders be based on the best interests of the child
Views of Capable Children
To ensure that the rights and best interests of the child are protected, article 12 of the UN Convention on the Rights of the Child provides that children who are capable should be given the right to express their views on matters affecting them, that children’s views should be given due weight, and that children should have the opportunity to be heard in any proceeding that affects them, either directly or through a representative. Access arrangements are "matters affecting children;"
therefore, access laws should require that the views of capable children be taken into account when determining the best interests of the child. There is wide recognition of the importance of hearing and giving due weight to the views of capable children in relation to custody and access arrangements (Johnston & Roseby, 1997; Canada, 1998b; Smart & Neale, 2000).
It is important to stress that the views of capable children should be considered in relation to access arrangements when reforming the legal framework for access enforcement. It is difficult to enforce an access order against the custodial parent, when the order does not take into account the views of a capable child who then refuses access (Murray, 1999). When a child refuses access because of manipulation or other reasons that require counselling or other interventions, that problem should be addressed. In other cases, the child’s views on whether access should take place and the terms of access should be considered and, in the case of older and mature children, given significant weight.
In their study of 52 children of divorced parents, Smart and Neale found that most of the children did not wish to decide themselves on custody and access arrangements but to participate in a "democratic process"
in which their needs and wishes are taken into account. These authors found that for some children "an irrebuttable presumption in favour of contact or of shared parenting runs entirely counter to the views and feelings they would express if they were properly consulted,"
and noted the following:
It is perhaps ironic that we are now increasingly interested to hear what children have to say but, if they say things we do not like, we tend to assume that they have been manipulated by a malcontent parent. It may be that we need to safeguard against the tendency of being prepared only to hear what we regard as palatable whilst remaining deaf to the less palatable (Smart & Neale, 2000: 168, 166-167).
As indicated in Appendix A, British Columbia, New Brunswick, Newfoundland, the Northwest Territories, Nunavut, Ontario, Prince Edward Island, Quebec, Saskatchewan and Yukon require that, when the child is capable of providing them, his or her views be considered and given due weight when determining what access arrangements are in the child’s best interests. The Divorce Act and the legislation in Alberta, Manitoba and Nova Scotia should be amended to add this requirement. Despite the fact that the Divorce Act does not require consideration of the views of capable children, the Supreme Court of Canada has ruled that their views are a factor to be considered when determining what access arrangements are in the best interests of the child.(31) Lower courts have also stressed that the views of the child should be considered and given due weight.(32) Courts have appropriately refused to give significant weight to the views of children when it is clear that the custodial parent is encouraging them to refuse access.(33)
Although the issue of representation of children in custody and access disputes is beyond the scope of this report, it should be noted that currently there is no adequate legal framework nor financial support to provide children with legal representation in contested custody and access cases (Canada, 1998b).
Protection from Parental Abuse
Pursuant to article 19(1) of the UN Convention on the Rights of the Child, states have an obligation to enact laws to protect children from violence and abuse at the hands of their parents. Most difficult access and access enforcement cases are those in which there is a history of high conflict or abuse.(34) Abuse of the child or the mother is harmful to the child (e.g. Jaffe et al., 1990). There is a particular risk of violence when women leave a relationship, especially if there are children (Barnett, 1999: 105; Bala et al., 1998: 7-8). Custodial mothers who leave a violent relationship are at risk of being assaulted when dropping off or picking up children for access visits (Hester & Radford, 1996). These facts raise the questions of what, if any, access arrangements will be in the best interests of the child and whether access orders can be enforced without undermining the best interests of the child in the presence of parental violence and abuse.
In cases of abuse, supervised access may be in the best interests of the child (Strauss, 1995). Strauss and Alda state that "even where a parent has been abusive, contact in a safe setting allows a child to come to terms with the abusive parent and may serve to avoid destructive repetitions later in life"
(Strauss & Alda, 1994: 234-235). In some communities, however, adequate supervised access facilities are not available and, in some cases, access would not be in the best interests of the child even when supervised (Strauss & Alda, 1994; Peterson-Badali et al., 1997: 74-75). Lamb and colleagues comment as follows:
Adults who have a history of chronic spouse abuse or battery also represent threats both to former partners and children. When such histories exist, the potential costs of terminating the children’s relationships with their violent parents need to be evaluated thoroughly by trained and impartial professionals whose recommendations concerning the termination of parent-child contact should be made and implemented expeditiously (Lamb et al., 1997: 401).
Other jurisdictions have enacted legislation requiring courts to take domestic violence into account when determining custody and access applications (Bala et al., 1998: 47-55). In Canada, as indicated in Appendix A, only Newfoundland, the Northwest Territories and Nunavut expressly require that a court hearing an access application take domestic violence into account when determining what is in the best interests of the child. Ontario has enacted legislation to this effect that has never been proclaimed in force. The statutes in the other provinces and territories and the federal Divorce Act should be amended to explicitly provide that domestic violence and abuse is a factor that negatively affects the ability of the abuser to parent and that it should be considered when setting up custody and access arrangements (Bala et al., 1998).
In the absence of explicit legislation, many courts have ruled that domestic violence is relevant to determining which custody and access arrangements are in the best interests of the child.(35)
Best Interests of the Child Considered in Enforcement
The UN Convention’s "umbrella"
provision, article 3(1), requires that "in all actions concerning children"
the best interests of the child be "a primary consideration."
Access enforcement concerns children in a very direct way. Therefore, the best interests of the child must be a primary consideration for legislators, judges and others making decisions about access enforcement, but other factors may be considered and may be the determining factors in some circumstances.
The Criminal Code provisions on criminal contempt and parental child abduction have occasionally been invoked to enforce access orders. Although the criminal law is not aimed at protecting the best interests of the child, criminal provisions dealing with actions directly concerning children should support children’s interests. At the same time, penal sanctions for conduct relating to children should be imposed only when the sanctions support, not undermine, the children’s rights and interests. The extent to which criminal law, in addition to civil remedies, should be applied to enforce access rights should be reconsidered in light of children’s rights and interests.
As indicated in Appendix A, only Alberta, Manitoba and Saskatchewan provide that the best interests of the child should be a consideration when making an access enforcement order. In the absence of explicit statutory provisions, courts generally take into account the best interests of the child when deciding whether to punish a custodial parent for contempt(36), or whether to order apprehension of the child.(37) Some courts, however, have punished custodial parents for contempt or made other orders to enforce access without considering the best interests of the child.(38) In the context of contempt proceedings, the best interests of the child may not be the paramount consideration because the proceeding is also aimed at protecting the administration of justice; however, it should be a primary consideration.(39) The best interests of the child should be explicitly included as a primary consideration in provincial and territorial statutes on access enforcement.
