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Overview and Assessment of
Approaches to Access Enforcement
2001-FCY-8E
CANADIAN LAWS AND PROGRAMS (cont'd)
Remedies for Access Denial
Children have a right to maintain contact with the non-custodial parent, unless access is not in their best interests. Therefore, adequate remedies for access denial are necessary to protect the rights and interests of children. The issue of access denial may arise when a parent is seeking an initial custody or access order,(64) a variation of custody or access,(65) an order to enforce access(66) or an order for or variation of support.(67)
The distinctive nature of access orders influence the choice of enforcement measure. Denial of access is different from refusal to pay a judgment debt, and different interventions may be appropriate depending on the nature of the case. Some cases of access denial involve custodial parents in conflictual relationships who are hostile to access from the outset and try to thwart it, sometimes using unproven allegations of violence, sexual abuse of the child or other problematic behaviour.(68) Some cases involve custodial fathers who have obtained custody by intimidating the mother and then deny her access,(69) or who deny access in an apparent attempt to control the mother or to punish her for leaving or for forming a relationship with another person.(70) In some cases, access is denied because the non-custodial parent demonstrates hostility to the
custodial parent, does not address the needs of the children during access visits, and causes the children to fear and resist visits.(71) Some cases involve custodial mothers who deny access because of proven abuse or a real concern about abuse by the non-custodial father against the custodial mother or the child or both.(72) As noted above, these high conflict and "difficult"
cases should be identified at the outset and special measures used to deal with them.
In some cases, access is denied on a particular occasion because of a child’s illness or some other temporary situation. Relatively minor grievances, such as failure to return the child’s clothes or medication after an access visit, might precipitate access denial. In some cases, the child may not want to continue with the same access schedule because of a conflict with his or her activities. Some cases of access denial involve custodial mothers who have a new partner who fills the paternal role.(73) Some involve custodial mothers who have an opportunity for a better job, family support or a new partner that the access arrangement would jeopardize.(74) In many such cases, the parents could solve the dispute and work out a new access arrangement, when appropriate, perhaps with some assistance from a mediator or other person.
The different circumstances in which access denial arises call for different legal interventions. Generally, the best interests of the child standard will support an incremental application of enforcement measures, under which alternative approaches are stressed and compensatory remedies are used initially. When access denial persists, remedies become more coercive and punitive. The use of coercive or punitive measures is problematic when there are good reasons for non-compliance (e.g. abuse or hostility by the non-custodial parent that causes the child to fear and resist visits). In such cases, it may be in the best interests of the child to vary the order to reduce or eliminate access; it is open to custodial parents to seek such a variation.(75)
Defining Wrongful Access Denial
Access orders involve ongoing relationships in which flexibility is required from all parties. On occasion, it is appropriate not to comply with an access order. Although access may generally be in the child’s best interests, on some occasions it may not be and denial, therefore, is justified (e.g. because the child is ill or the non-custodial parent is intoxicated).
As noted in Appendix A, Newfoundland, the Northwest Territories, Nunavut and Saskatchewan laws explicitly provide measures to deal with wrongful access denial, and Newfoundland’s statute includes a detailed provision on when access denial is not wrongful. Ontario enacted a provision almost identical to Newfoundland’s but it has never been proclaimed. Alberta has enacted legislation that provides a court to refuse to enforce an access order in cases in which a denial of access is "excusable,"
without defining the term. Alberta’s provision permits a court to enforce an access order with non-punitive measures even when denial is "excusable."
This may be problematic when non-custodial parents use enforcement measures to harass the other parent. Under Alberta’s provision, a custodial parent who has denied access for a good reason (e.g. because the non-custodial parent was intoxicated) may be ordered to provide compensatory access,
attend an educational program or counselling, attend mediation, or reimburse the non-custodial parent for expenses incurred as a result of the access denial. However, in cases of harassment, the court can deal with frivolous or vexatious applications by prohibiting the parent from making any further applications without leave of the court.
Although few Canadian jurisdictions have explicitly dealt with justified access denial in their laws, courts have discretion to excuse denial of access in some circumstances, as discussed in Frame v. Smith by Wilson J:
At times, a perfectly legitimate exercise by the custodial parent of his or her custodial rights or custodial obligations will result in an individual denial of access to the other parent. It is not the role of the court to review this sort of exercise of discretion with respect to the child. It is only when a sustained course of conduct designed to destroy the relationship is being engaged in that there is a breach of the duty. If and when a custodial parent comes to believe that continued access to the child by the other parent is not in the child’s interests or is harmful to the child, the proper course for the custodial parent to follow is not to engage in ongoing wilful violations of the access order but to apply to the court to vary or rescind it.(76)
Some cases suggest that denial of court-ordered access may be justified when the custodial parent reasonably and honestly believes that there is a risk of danger to the child and takes immediate court action to terminate or restrict access.(77) In Salloum v. Salloum, Viet J. said: "Where the court can find that a parent is disobeying a court order out of honest concern for the welfare of the children, a court will be loathe to stigmatize and sanction the parent’s behaviour. One test for the honest concern of the offending parent is whether that parent has promptly moved the court to modify the existing custody or access order."
(78)
There are three problems with this approach to "justified"
denial of access. First, it suggests that access denial is appropriate only when circumstances justifying a variation of the custody or access order exist. Yet in many cases such circumstances do not exist, the access order is still in the best interests of the child, but on a particular occasion denial of access was appropriate. It would be useful to untangle cases where a variation is appropriate (e.g., because access as ordered is no longer in the best interests of the child) from those where access as ordered remains in the best interests of the child generally but denial was appropriate on a particular occasion. In the former, the custodial parents should seek a variation immediately, as the cases suggest. In the latter, an application to vary should not be required or expected, and the court should rule that the denial was justified and dismiss any enforcement proceedings, as suggested in the excerpt
from Frame v. Smith, above.
A statutory guideline such as that provided in Newfoundland’s Children’s Law Act is helpful. The Newfoundland statute makes clear that a remedy is available only when a denial of access is "wrongful,"
and provides a definition of this term.(79) Newfoundland’s statute gives parents a clear statement of their rights and responsibilities related to the exercise of access. The custodial parent knows, for example, that when the non-custodial parent is more than an hour late, he or she need not stand by with the child, ready, willing and able to provide access. The non-custodial parent knows, for example, that when he or she arrives intoxicated, access will be denied. While there will continue to be disagreements on such issues as whether there were "reasonable grounds"
to believe that the child would suffer harm if access were exercised, this provision adds needed clarity to the issue of
justified access denial. In addition, this provision expands the circumstances under which access denial will be justified to include more than immediate risk of harm to the child. This is appropriate because it allows the court to focus on the best interests of the child not simply the risk of harm to the child, and because it clarifies that the custodial parent will not be found in contempt when, for example, he or she has not continued to be ready to provide access after repeated failures by the non-custodial parent to exercise access.
All provinces and territories should enact a provision that defines when access denial is wrongful, and should provide remedies for access denial only when it is wrongful.
Compensatory Remedies
As noted in Appendix A, compensatory access is explicitly provided for in the legislation of Alberta, Newfoundland, the Northwest Territories, Nunavut and Saskatchewan. Amendments to Ontario’s statute that have never been proclaimed include a provision for compensatory access. Even in the absence of such explicit authority, courts have ordered compensatory access under their general power to make or vary custody and access orders under provincial or territorial legislation(80), under the federal Divorce Act(81) or without reference to any specific statutory authority.(82) Orders for compensatory access should be subject to the best interests of the child principle. As Matheson J. said in Hume v. Hume, when rejecting a request for compensatory access, "visitation is for the benefit of the child. It is not a debt owed by
the petitioner to the respondent which must be paid in full."
(83) Most courts explicitly consider whether compensatory access is in the best interests of the child before making such an order(84). Some courts order, or suggest, that there be ongoing compensatory access, as appropriate, leaving it to the parties to arrange it between themselves.(85)
Compensatory access should be explicitly available as an immediate remedy when a wrongful denial of access is proven on the balance of probabilities, subject to the best interests of the child. Civil enforcement of access orders is primarily a matter of provincial responsibility under section 92(13) of the Constitution Act.(86) However, the Divorce Act, as well as all provincial and territorial legislation, should explicitly authorize courts to order compensatory access. This is because such an order may be appropriate when determining access under the Divorce Act, when access as previously agreed to or ordered has been wrongfully denied.
In 1987, the Supreme Court of Canada ruled that tort actions for denial of access are not available in Canada.(87) More recently, the Alberta Court of Appeal held that a non-custodial father had no common-law cause of action against the custodial mother for interfering with his access rights.(88) Some commentators have supported the use of tort actions for access denial (Geismann, 1993: 606-608), but there does not seem to be any evidence that they are effective in re-establishing contact between the child and the non-custodial parent or in supporting the rights and bests interests of the child.
A more effective means of enforcing access while, at the same time, compensating the non-custodial parent is to allow non-custodial parents to bring summary claims for expenses incurred as a result of a wrongful access denial. As noted in Appendix A, compensation for an expense relating to access denial is explicitly available under the statutes of Alberta, Manitoba, Newfoundland, the Northwest Territories, Nunavut and Saskatchewan.
Newfoundland’s statute allows the court to remedy a wrongful denial of access by ordering the respondent "to reimburse the applicant for reasonable expenses actually incurred as a result of the wrongful denial of access."
(89) Saskatchewan’s Children’s Law Act provides that the court may award expenses incurred by the applicant, including "(a) travel expenses; (b) the costs of locating and returning a child; (c) lost wages;... (e) legal fees; and (f) any other expenses the court may allow."
(90) Some Saskatchewan judges have used their jurisdiction to award costs in contempt proceedings to award compensation to the non-custodial parent for expenses incurred while trying to exercise access.(91) Alberta law provides compensation to non-custodial parents for any "necessary expenses actually
incurred as a result of denial of access"
and says that "necessary expenses"
include "(a) travel expenses; (b) the costs of locating and securing access to the child; (c) lost wages; (d) any other expenses the court may allow."
(92) The amendments to Ontario’s statute, which have never been proclaimed, included a provision for compensation of the non-custodial parent for "any reasonable expenses actually incurred as a result of wrongful denial of access."
(93)
Apart from such explicit statutory authority, some judges have used their general powers to award costs(94) or to punish contempt(95) to award the expenses the non-custodial parent incurred trying to exercise access. Some judges order compensation for wasted expenses in the event that access denial occurs.(96) Courts should be given the explicit jurisdiction to award compensation in summary proceedings for expenses incurred in attempting to obtain access or for wasted expenses (e.g. the cost of unused baseball tickets purchased for the access visit) when wrongful denial of access is proven on the balance of probabilities.
Apprehension Orders
When unjustified access denial persists after preventive, alternative and compensatory measures have been taken, more coercive and punitive measures may be called for to protect the best interests of the child.
As indicated in Appendix A, Manitoba, New Brunswick, Newfoundland, the Northwest Territories, Nunavut, Ontario, Prince Edward Island and Yukon have given statutory power to courts to authorize a person entitled to access, or someone acting on that person’s behalf, to apprehend the child to carry out the access order. These same jurisdictions, along with Alberta and Saskatchewan, empower courts to direct a law enforcement officer to locate, apprehend and deliver the child to the person entitled to access.
In some cases, courts have refused to grant an order authorizing apprehension on the grounds that such an order would not be in the best interests of the child. In Kingwell v. Kingwell, the court declined to authorize the non-custodial father, or someone acting on his behalf, to apprehend the child for the purpose of enforcing the access order since there was no danger to the children in leaving them with their mother.(97) Similarly, in D.(R.P.) v. C.(R.), the court declined the father’s request for an apprehension order; rather, the court chose to give the mother an opportunity to comply with the access order. The court was of the view that an apprehension order would be particularly intrusive and potentially upsetting for the child and out of proportion to the good that might be achieved by allowing her to be with her father for the stated periods of access. The court made it clear, however, that the mother could be imprisoned if her contempt of the access order continued.(98)
While courts have granted orders directing apprehension by law enforcement officers,(99) they have also refused to grant such orders on the grounds that it would not be in the best interests of the child. In Whipp v. Racz, the father’s request for an order directing police assistance to enforce access was dismissed on the basis that it would be detrimental to the best interests of the children to see police officers at the time of the access exchanges, and that such an order should be made only as a last resort.
British Columbia’s statute gives no statutory authority for directing apprehension by a law enforcement officer to enforce an access order.(100) In M. v. M., the British Columbia Supreme Court said that an apprehension order would be "traumatic"
for the parents’ 11-year-old daughter, and that the fact that the father had requested such an order reflected negatively on his ability to parent. The Court said that the father was "considering his own parental rights above the interests"
of his child.(101) In Drake v. Cox, a Newfoundland court refused to grant the non-custodial father an "apprehension order"
on the grounds that "it would be particularly intrusive and potentially upsetting for the child, and out of proportion to the good that might be achieved by allowing her to be with the father."
(102)
Non-custodial parents also hesitate to use apprehension to enforce their access rights. In Paton v. Shymkiw, for example, the father, accompanied by an access supervisor, tried to pick up his six-year-old son for an access visit but the child refused. Although the judge "had ordered police assistance if it became necessary, the father agreed at that time that calling the police was not in Tyler’s best interest."
(103) Only after repeated refusals by the child (for which the judge held the custodial mother responsible) did the father seek assistance from the police.
Although an apprehension order is an intrusive and potentially frightening method of enforcing access orders, such an order may be appropriate in some circumstances, when other methods have failed. When unjustified access denial persists after the court has ordered persuasive, educational and compensatory measures, the child’s interest in maintaining a relationship with the non-custodial parent may outweigh the risks involved in using this coercive measure in some cases.
In 1997, an Ontario judge made the following points when upholding a police apprehension order made under Ontario’s Children’s Law Reform Act, s. 36:
It is clear that an order under subsection 36(2) is an order of last resort. Courts must make such orders sparingly and in the most exceptional circumstances. It is an order that can only be made once a court is satisfied that a party is unlawfully withholding a child from a person entitled to custody of or access to the child. It is a finding that can be based on either a single incident of withholding or on a pattern of withholding even where that pattern has been interrupted by some resumed access. Subsection 36(7) provides for a period of time within which the police may be called upon to assist an aggrieved party in enforcing access. The purpose of that subsection is to enable the aggrieved party to avoid the expensive process of returning to court for a finding of unlawful withholding on each and every occasion that the party is being denied access. Ideally, the making of the order should be effective enough to persuade the wrongdoer to co-operate. However, that is not always the case and the aggrieved party must call upon the police.(104)
Law enforcement officers have expressed concerns about enforcing access orders.(105) It has been pointed out that notice of an application for an apprehension order should be given to any third parties, including law enforcement officers, who may be granted rights or have obligations imposed on them. Such notice "can act as a safeguard in cases where, if the court had information in the hands of the peace officers, police departments and/or child protection agencies, there might be concerns about granting an order..."
(MacPhail, 1999: 14). In Allen v. Grenier, the police moved to set aside a police apprehension order obtained by the non-custodial father, arguing that "the order contained insufficient information for enforcement purposes, that it did not specify particular police measures to be used, that it lacked an expiry date, and that it was a drain on resources."
The court ruled that when a
police officer is directed to apprehend a child, the officer must make reasonable efforts to carry out the order or, when the order requires explanation, the officer must immediately bring a motion before the court for directions and then act on those directions. The court rejected the argument relating to resources on the basis of the statutory authority to make apprehension order.(106) The case points to the need for clear access and apprehension orders. Standardized orders clearly setting out the necessary information would alleviate problems. The case also makes clear that there is a need for adequate funding for officers to receive training and be available for apprehension of children who are being wrongfully withheld.
Vince Westwick, representing the Canadian Association of Chiefs of Police, testified before the Special Joint Committee about "doorstep problems"
(i.e. difficulties that arise when an officer tries to resolve a volatile access dispute situation at the doorstep). To avoid disputes about the meaning of orders, he requested that access orders be clarified and written in non-legal language with the dates of access clearly spelled out. As well, he recommended that there be legislative provision for professionals and police to have access to the complete file relating to the case off-hours (Canada, 1998b).
To alleviate the potential trauma, apprehensions should be conducted by trained personnel and the same personnel should be involved when repeat apprehensions are required. Persuasion should be the primary method used, and the apprehension should be an opportunity to provide additional education to the custodial parent on behaviour that promotes the best interests of the child. An apprehension order should be available when unjustified access denial is proven on the balance of probabilities and when such an order is consistent with the best interests of the child.
In most cases, however, apprehension orders should be given or enforced only after less coercive measures have been tried. Apprehension orders should be specific and clearly worded.
Contempt
As indicated in Appendix A, section 127(1) of the Criminal Code, imposes a penalty for criminal contempt "unless a punishment or other mode of proceeding is expressly provided by law."
(107) In R. v. Clement, the Supreme Court of Canada ruled that section 127(1) could be applied when court orders have not been obeyed, and that the inherent power of a superior court to punish contempt does not constitute another "mode of proceeding"
that was "expressly provided by law,"
so as to negate the availability of a criminal contempt charge.(108) The Supreme Court said that section 127(1) was "available as the basis for a charge for disobedience of a lawful court whenever statute law (including regulation) does not expressly provide a punishment or penalty or other mode of proceeding, and not otherwise."
(109)
The Nova Scotia Court of Appeal subsequently ruled in R. v. Dawson that a person cannot be liable for criminal contempt when the order in question was made by the Family Court pursuant to the Family Maintenance Act(110), which expressly provides for punishment for contempt of an order made under the Act.(111) As indicated in Appendix A, legislation in many provinces expressly provides for punishment for contempt of access orders. When access orders are obtained from courts whose jurisdiction derives from provincial or territorial legislation that expressly provides for punishment for contempt, a charge under section 127 of the Criminal Code is available (Wilton & Miyauchi, 1989: 2-25-2-26). For example, a charge under section 127 could not be laid in Ontario for contempt of an access order made by the Ontario Court of Justice because section 38 of the Children’s Law Reform Act expressly provides a penalty. However, a charge under section 127 probably would be available for non-compliance with an access order made by the Superior Court of Justice under the Divorce Act. Ontario’s Rules of Civil Procedure (Rule 60(5)) authorize the judge to order imprisonment, a fine and other penalties for contempt of a court order, but may not provide sufficiently express penalties to satisfy the standard set out in R.v. Clement.
In some contexts, then, a charge under section 127 of the Criminal Code will be available; the question is when is such a charge appropriate? The Manitoba Department of Justice developed charging guidelines for cases of breach of custody and access orders that are based on the policy that parties should generally pursue civil remedies rather than use the criminal justice system, and that take into account "the negative impact on the children involved if criminal charges are brought against one parent"
(MacPhail, 1999: 11-12).(112) These guidelines take the best interests of the child into account according to the circumstances of the case and generally posit criminal sanctions as a remedy of last resort.
The primary method of dealing with denial of access has been civil contempt proceedings, as expanded by provincial and territorial legislation, which provides for fines or imprisonment for violation of an access order.(113) As indicated in Appendix A, most provinces and territories have legislated penalties for non-compliance with an access order, which vary in severity, and have extended to provincially appointed judges the power to punish contempt that is other than contempt of court. British Columbia, Prince Edward Island and Yukon have not enacted such legislation but should consider doing so.(114) In British Columbia and Manitoba interference or non-compliance with an access order is a provincial offence.
Because the contempt remedy is a quasi-criminal remedy, punishable by fine or imprisonment, the standard of proof is beyond a reasonable doubt.(115) The court will not hold a person in contempt unless the person intended to frustrate the order. There must wilful and deliberate breach of the order.(116) It is unusual to do more than issue "a warning, admonition or penalty in costs"
for the first failure to comply with an access order(117), and generally a parent will not be found in contempt unless there has been persistent failure to comply.(118) Courts are reluctant to punish a custodial parent by fine or imprisonment when it is clear that such sanctions will not address the underlying problems and that counselling is needed.(119)
Many courts have stated that the custodial parent has a duty to actively encourage visits with the non-custodial parent.(120) A custodial parent who encourages or condones a child’s refusal of access(121), or who deliberately schedules activities to conflict with access, may be held in contempt.(122)
None of the statutes or regulations addressing the court’s power to punish for contempt requires that the best interests of the child be a primary consideration. Nevertheless, many courts have expressed reluctance to punish the custodial parent for contempt because of concerns about the interests of the child. Veit J. has said the following:
Restraint is appropriate given the twin objectives of protecting both the best interests of the children and the administration of justice. As frustrating as it must be for a parent whose court ordered access is sterilized, the court’s focus is on the interest of the children, not on the behaviour of the parents. Children are better off if the parents are not in jail or paying fines.(123)
Because of concerns about the interests of the child, courts only rarely fine or imprison a custodial parent for contempt. Punishment may increase animosity between the parents and exacerbate access disputes (McLeod, 1987: 458).(124) Therefore, punishment for contempt is not an effective method of enforcing access orders.
To protect the best interests of the child, punishment for contempt generally should be imposed only as a last resort after persuasive and compensatory methods have failed, and not when the punishment would undermine rather than protect the child’s interests. For contempt proceedings to be an effective deterrent, however, a fine or imprisonment should be imposed for persistent non-compliance, subject to the best interests of the child.
Suspension of Child Support and Change of Custody
Two methods of access enforcement should be abandoned on the grounds that they violate the best interests and the rights of the child. They are suspension of child support and transfer of custody.
There has been some academic support for making child support conditional on access (e.g. Kitch, 1991: 318).(125) No provincial or territorial statutes explicitly authorize courts to suspend child support to enforce an access order. However, some courts have suspended child support payments pending resumption of access.(126) The Appeal Division of the P.E.I. Supreme Court stated that cancellation of child support was a measure the court could take if a custodial parent failed to adequately facilitate access.(127) Most courts, however, have rejected this approach, including British Columbia’s Court of Appeal, which stated the following in Lee v. Lee:
I do not consider that even this custodial parent’s reprehensible conduct, in pursuing her personal objective, contrary to the best interests of the child, justifies a diminution of the responsibility of the non-custodial parent for the proper maintenance of the child of the marriage. Accordingly, in my view, the misconduct of the custodial parent does not provide a proper reason for directing that the non-custodial parent pay less than the appropriate amount of maintenance for his child.(128)
Suspension of child support is inconsistent with the best interests of the child principle and should not be ordered as a remedy for wrongful access denial (at the same time, suspension of access should not be ordered as a remedy for failure to pay child support). It results in a violation of the child’s right to access and to support, and implies that the custodial parent may bargain away the child’s rights in order to purchase freedom from an ex-spouse, that his or her right to be let alone outweighs the child’s rights. The Supreme Court of Canada has made clear that "child maintenance, like access, is the right of the child. For this reason, a spouse cannot barter away his or her child’s right to support."
If financial sanctions are deemed appropriate for wrongful denial of access, the court should impose a fine for contempt or order the custodial parent to give security for performance of the obligation to provide
access(129), rather than allow the custodial parent, in effect, to bargain away the child’s right to support.
As noted in Appendix A, Saskatchewan is the only province in which, in the case of wrongful denial of access, the court may vary a custody or access order, provided the court "is of the opinion that it is in the best interests of the child."
Nevertheless, many courts have said that a transfer of custody may be ordered as a remedy for denial of access. Steel J. stated that "there are a number of ways in which a court can deal with a party who is in contempt of an access order to a child including a fine, a period of incarceration, a change of custody, ordering additional access periods or suspending child support payments."
(130) In an appeal from Quebec, the Supreme Court of Canada upheld an order to transfer custody when the mother had taken the child to France in violation of the father’s access order.(131)
England’s Law Commission suggested that "the possibility of a variation in the custody order may prove a more effective sanction,"
for denial of access, but acknowledged that "the cure may be worse than the disease"
(England and Wales, 1986: 2.57). In a similar vein, Wilson J. said the following in Frame v. Smith:
It is sometimes suggested that transferring custody is an appropriate means of punishing the custodial parent for an ongoing denial of access. But again, because of the bonding that takes place between the custodial parent and his or her child over a period of time, such a step may not be in the child’s best interests.(132)
Although some courts justify such transfers on the basis that the custodial parent’s thwarting of access is harmful to the child and shows clear disregard for the interests of the child, too much emphasis on that factor creates the risk that the child’s interests will not be fully considered. A transfer of custody should not be considered a "punishment"
or a remedy for wrongful access denial. In many cases, it will not be an option because the non-custodial parent does not want or is unable to take custody. Even when the non-custodial parent does seek a transfer of custody, it may not be appropriate. If there is persistent wrongful denial of access, or other cause for concern, the non-custodial parent may apply for a transfer of custody. The judge would then have to decide whether a variation was in the best interests of the child given all the circumstances.
As in any application to vary a custody or access order, the non-custodial parent would have to prove "1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; 2) which materially affects the child; and 3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order."
(133) If this threshold is met, the court must then consider afresh what is in the best interests of the child, taking into account all relevant circumstances.(134) Several judges have correctly ruled that applications to vary custody in the context of access denial should be governed by the principles set out in the Supreme Court of Canada decision in Gordon v. Goertz.(135)
The statutory best interests of the child test, the current law of Canada on variation of custody and access orders, and the UN Convention on the Rights of Child do not support transfer of custody as an appropriate remedy for wrongful access denial. That a parent has wrongfully denied access is certainly an important factor to consider, along with all other relevant circumstances, on any variation application but is not, in itself, a sufficient basis on which to order a transfer of custody.
