Overview and Assessment of
Approaches to Access Enforcement

2001-FCY-8E

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CANADIAN LAWS AND PROGRAMS (cont'd)

Enforcement Against the Non-custodial Parent

Failure to exercise access arises in cases dealing with custody applications⁽¹⁵⁵⁾, applications to rescind access⁽¹⁵⁶⁾ or applications for support or some form of compensation for expenses related to failure to exercise access.⁽¹⁵⁷⁾ As well, failure to exercise access is an issue in relocation cases, because a non-custodial parent seeking to prevent the custodial parent from moving with the child must have an ongoing relationship with the child in order to satisfy the threshold test of a "material change in circumstances."⁽¹⁵⁸⁾ In addition, there are many cases in which the custodialparent has supported access and actively encouraged more access.⁽¹⁵⁹⁾ Even in cases of domestic violence, the custodial mother has supported or agreed to access, often with supervision to safeguard the child.⁽¹⁶⁰⁾

It is important to examine the circumstances that lead to failure to exercise access in order to develop effective approaches to this problem. Failure to exercise access may follow from denial or discouragement on the part of the custodial parent. For example, in Dombroski v. Dombroski, the father stopped exercising access because the custodial mother unreasonably required that all access visits take place at her residence.⁽¹⁶¹⁾ In McNair v. Tetrault, the mother failed to fully exercise her interim access rights but this was not held against her in the custody determination because the father was at fault for failing to facilitate the access visits—when the father stopped providing transportation for the access visits, the mother was unable to exercise access without substantial difficulty.⁽¹⁶²⁾

Some non-custodial parents, on their own initiative, exercise access inconsistently or gradually withdraw or simply disappear from their children’s lives, often causing pain and disappointment to their children.⁽¹⁶³⁾ In some of these cases, the non-custodial parent’s interest in access is reinvigorated when the opportunity to exercise access is threatened.⁽¹⁶⁴⁾ Very often a failure to exercise access coincides with failure to pay child support, and the interest in access is sometimes revived when child supports orders are enforced.⁽¹⁶⁵⁾ The explanations given by non-custodial parents for their disengagement are varied, and sometimes unconvincing. For example, in Martin v Matruglio, the court said the following:

It was common ground at the trial that the wife was anxious for the husband to have more contact than he was having with the children but that the husband took the view that he was unable to do so, firstly, because of restrictions placed upon him by the nature of his employment, and secondly, because he did not want to spend all of his spare time with his children at the expense of his relationship with his second wife.⁽¹⁶⁶⁾

Some non-custodial parents pursue the right to custody or access but in the meantime fail to exercise access regularly, apparently because the terms of access or the current custody arrangement is not acceptable.⁽¹⁶⁷⁾ In H.A. v. D.M., for example, the father blamed his failure to exercise access on the travel distance and the custodial parent, but the court stated that the father himself was to blame for maintaining a distance from the child "if he could not be assured of success in his pursuit of custody."⁽¹⁶⁸⁾ In MacLeod v. MacLeod, the father, who did not effectively exercise his access rights after separation, was seeking custody. The trial judge said that there were some valid reasons for his failure (the custodial mother moved with the child and access was diminished as a result of the cost of travel and the increased difficulty of communication), but that the failure to exercise access was also partly due to the father’s "stubbornness" or "injured feelings."⁽¹⁶⁹⁾

In some cases, non-custodial parents, usually fathers, who are angry, hostile, violent and often substance-abusing, fail to exercise access but pursue their access rights or other claims in court to harass or control the custodial mother.⁽¹⁷⁰⁾ For example, in Chan v. Spencer, the father was described by the judge as an angry, hostile individual who presented himself in a threatening and intimidating manner. The court commented that the father did not show any real interest in pursuing his claim for custody or access, that he failed to exercise access as ordered, and that his "greater interest appeared to be to harass Ms. Chan and impede the timely hearing of this action."⁽¹⁷¹⁾

Persuasive Measures

The child’s right of access is undermined by failure of some non-custodial parents to exercise access. The disengagement of non-custodial parents, usually fathers, is a serious concern because of the negative impact of this withdrawal on the children. Researchers have found that a continuing positive relationship with both parents is one factor associated with positive outcomes for children following parental separation (Wallerstein & Kelly, 1980), although later studies indicate that absence of conflict and a well-functioning custodial parent are more important factors (Furstenberg & Cherlin, 1991). Mothers are encouraged and disciplined to facilitate paternal access, just as fathers are both encouraged and disciplined to honour their child support obligations. With regard to access, however, the law’s treatment of the non-custodial parent, usually the father, is encouraging but not disciplinary. The operating presumption is that the law could not force a parent to maintain nurturing contact with his or her child and that any effort to do so would be misguided.

Whether more vigorous attempts to enforce the duty to exercise access should be made is questionable. Most commentators agree with Maccoby and Mnookin, who wrote as follows:

Should the law be used to create a legal obligation on the part of a non-custodial parent to stay in contact with the children? Although some commentators have argued for such a legal obligation, we are very sceptical... [and] we doubt whether law can effectively sustain a relationship when the parent himself is not motivated to do so (Maccoby & Mnookin, 1992: 288).

It is unlikely that fines, imprisonment or coercion would cause the non-custodial parent to adopt positive parenting behaviour. Different solutions are necessary that take into account the research on the reasons behind disengagement of non-custodial parents.

The futility of trying to force a positive access relationship on an unwilling non-custodial parent is one reason for the current emphasis on preventive and alternative approaches to access and access enforcement disputes. Introducing parental education programs at the outset of all contested custody or access disputes would probably help efforts to persuade non-custodial parents to exercise access consistent with the best interests of the child. It is probable that even earlier parental education programs are needed in order to foster long-term positive parent-child relationships that can survive parental separation. It does not seem likely that forcing non-custodial parents who have already disengaged from their children to attend such programs will lead to significant improvements, but additional research on this issue is needed.

As noted in Appendix A, no province or territory has enacted legislation that expressly encourages non-custodial parents to maintain contact with their children, although legislative remedies for non-exercise of access may be viewed as indirect attempts to do so. Parental education programs typically address this issue and are available in some parts of the country; however, no jurisdiction has assumed responsibility for providing such programs or other measures to encourage ongoing contact.

Defining Wrongful Failure to Exercise Access

As noted in Appendix A, Alberta, Manitoba, Newfoundland and Saskatchewan have enacted remedies for failure to exercise access. Ontario has done so as well but its provision has never been proclaimed. Most of these jurisdictions make remedies available when the non-custodial parent fails to exercise access without giving reasonable notice or without reasonable notice and excuse. Manitoba, however, provides remedies for "wrongful" failure to exercise access without defining the term. This province should amend its statute to clarify that remedies are available when the failure to exercise access was without reasonable notice and excuse.

Remedies for Failure to Exercise Access

As noted in Appendix A, Alberta, Manitoba and Newfoundland provide that a court may order the non-custodial parent to reimburse the custodial parent for any reasonable expenses actually incurred as a result of failure to exercise access. Ontario has made similar provision but never proclaimed its provision. All provinces and territories should provide that courts may order the non-custodial parent to pay compensation to custodial parents for expenses incurred as a result of wrongful failure to exercise access. Compensation would reduce the unfair treatment of the custodial parent, who must, for example, incur babysitting costs or forego opportunities to earn income because of the access parent’s conduct.

There is no provision for compensation in Nova Scotia; however, the province does allow judges to award additional child support to compensate for failure to exercise access. One judge reasoned as follows:

• The failure to regularly exercise access means the custodial parent provides for/to the child(ren) virtually all meals, recreation, transportation, entertainment, special occasions, holidays, and educational and emotional support. In addition, the custodial parent lacks any "break"—any personal interests or demands, be they employment, dating, recreational, educational, can be pursued only after the children’s needs are addressed and looked after.
  
  
• I see no reason not to consider the failure to exercise access in circumstances where, as here, it is available, encouraged, and sought, as a factor in the assessment of child maintenance.⁽¹⁷²⁾

As noted in Appendix A, Newfoundland and Saskatchewan provide that courts may order mediation in cases of failure to exercise access. Ontario has also provided such an order but its provision is not in force. As noted above, there is widespread agreement that mediation should be voluntary. Therefore, provisions allowing courts to order involuntary mediation are problematic, and those allowing courts to order mediation when the parties agree are unnecessary. The provinces should repeal provisions for court-ordered mediation.

As noted in Appendix A, Manitoba and Saskatchewan provide that courts may order supervised access in cases of failure to exercise access. Ontario has done this also, but its provision is not in force. Saskatchewan’s law also provides that the court may order the non-custodial parent to give security for performance of the obligation or provide his or her address and telephone number. Other provinces and territories should consider enacting such provisions.

Non-custodial parents who do not comply with the access order may be liable for punishment for contempt. In practice, contempt proceedings against the non-custodial parent usually relate to failure of the parent to return the child on time or to other types of non-compliance with the terms of access.⁽¹⁷³⁾

Cases involving attempts to force a non-custodial parent to exercise access are very unusual. When 11-year-old twin boys tried unsuccessfully to "sue" their father to force him to spend time with them or pay a penalty, their effort was reported as a rarity (Schmitz, 1996: 1).

Responsibility for Access Enforcement

Although governments are involved in access enforcement, as outlined above, and provide some services relating to access disputes, the enforcement of access orders is largely the responsibility of individual parents. Except in the case of criminal proceedings, individual parents must retain their own lawyers and initiate enforcement proceedings, which do not often yield positive results. In general, preliminary evaluation and screening of custody and access disputes are not widely available; when an assessment is needed, parents must seek an agreement or order for the assessment and must often arrange and pay for it themselves, or do without. When they are not lucky enough to live in an area where mediation and supervised access services are provided, they often must do without or arrange and pay for mediation and organize supervision of access themselves.

As indicated in Appendix A, no province or territory currently provides for a government agency to enforce access orders. The central question for governments in Canada is whether or not they are willing to take on the responsibility of enforcing access orders as they have for enforcing support orders and, in some cases, custody orders.⁽¹⁷⁴⁾ Perhaps more important is the question of whether or not governments are willing to mandate that important services such as evaluation, parental education, mediation and supervised access be provided, rather than continue with a system in which services may or may not be provided and many areas are without services. While most provinces and territories provide services, such as parental education, mediation, supervised access and evaluation, to people with custody and access issues, these services are not necessarily focused specifically on the enforcement of access orders. As well, in some provinces and territories, civil Legal Aid may be available to parents to enforce access orders, depending on the merits of the case and financial eligibility.

Provinces and territories could each establish a court-connected office with responsibility for providing these services and for enforcing access orders when preventive and alternative measures fail. A model for such an office is Michigan’s Friend of the Court program, discussed in the next part of this report, which is mandated to provide all these services and to enforce support and parenting time (access) orders.

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• ¹⁵⁵ H.A. v. D.M., [1995] O.J. No. 4021 (Q.L.) (Ct. Justice (Prov. Div.): father who had failed to exercise access sought custody but was granted access.

• ¹⁵⁶ Vandebyl v. Belko, [1992] O.J. No. 3091 (Q.L.) (Ct. Justice (Prov. Div.)).

• ¹⁵⁷ Mackinnon v. MacKinnon, [1988] N.S.J. No. 517 (Q.L.) (N.S. Fam. Ct.) at paras. 35 and 36.

• ¹⁵⁸ Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 14. Failure to exercise access may also be an issue in international abduction cases, in which there is the question of whether or not a parent was exercising "rights of custody" at the time of the abduction or had "acquiesced" to removal of the child.

• ¹⁵⁹ See, for example, A.B. v. N.R., [1998] Q.J. No. 3904 (Super. Ct. (Fam. Div.)).

• ¹⁶⁰ See, for example, Matheson v. Sabourin, [1994] O.J. No. 991 (Ct. Justice (Prov. Div.)).

• ¹⁶¹ Dombroski v. Dombroski, [1993] A.J. No. 243 (Q.L.) (Q.B.).

• ¹⁶² McNair v. Tetrault, [1995] O.J. No. 3044 (Q.L.) (Ct. Justice (Prov. Div.)).

• ¹⁶³ Vandebyl v. Belko, [1992] O.J. No. 3091 (Q.L.) (Ct. Justice (Prov. Div.)): father failed to "maintain even a modicum of contact"; Isfeld v. Daniels (1995), 103 Man. R. (2d) 312 (Q.B.): father failed to exercise access or make any inquiry about children for three years; Butson v. LaCombe (1984), 41 R.F.L. (2d) 222 (Ont. U.F.C.): father's persistent failure to exercise access hurt the child; Surette v. Thomas (1996), 13 O.T.C. 219 (Gen. Div.): father had become stranger and had "allowed that attachment to wither away".

• ¹⁶⁴ See, for example, Martin & Matruglio [1999] Fam. C.A. 1785 (December 23, 1999) (Full Court of the Family Court of Australia): father who had failed to exercise access fully tried to stop mother from relocating within Australia; Lund v. Gabe, [1995] B.C.J. No. 1903 (S.C.): father exercised access inconsistently but did not want mother to move away.

• ¹⁶⁵ See, for example, A.B. v. N.R., [1998] Q.J. No. 3904 (Super. Ct. (Fam. Div.)).

• ¹⁶⁶ Martin & Matruglio, at para. 78.

• ¹⁶⁷ Evin v. Evin, [1997] B.C.J. No. 2201 (S.C.): non-custodial father sought sole or joint custody and stated that if the mother retained sole custody he would stop seeing the child.

• ¹⁶⁸ H.A. v. D.M., [1995] O.J. No. 4021 (Q.L.) (Ct. Justice (Prov. Div.).

• ¹⁶⁹ MacLeod v. MacLeod, [1996] N.S.J. No. 578 (Q.L.) (N.S.S.C.). See also, C.A.R. v. L.G., [1998] Q.J. No. 1987 (Sup. Ct. Fam. Div.): non-custodial mother refused to see her son but sought custody.

• ¹⁷⁰ Koch v. Mitchell, [1999] B.C.J. No. 52 (B.C.C.A.).

• ¹⁷¹ Chan v. Spencer, [1998] B.C.J. No. 1317 (B.C.S.C.). See also Rheaume v. Leclair, [1993] O.J. No. 2380 (Q.L.) (Ct. Justice (Prov. Div.)).

• ¹⁷² Mackinnon v. MacKinnon, [1988] N.S.J. No. 517 (N.S. Fam. Ct.) at paras. 35 and 36.

• ¹⁷³ S.E.H. v. S.R.M. [2000] B.C.J. No. 786 (S.C.): the non-custodial father was fined $2,000 for failure to comply with the terms of access but contempt could be purged by completion of a parental education program and counselling.

• ¹⁷⁴ See, for example, Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31: Ontario eliminated the statutory responsibility for enforcing custody orders and the Director of the Family Responsibility Office is now responsible for enforcing only support orders, although section 6(5), which says that "the Director shall not enforce custody orders made by a Canadian court, even if they were filed with the Director before this section comes into force" has not yet been proclaimed; Maintenance and Custody Orders Enforcement Act, R.S.Y. 1986, c. 108: Yukon's Director of Maintenance and Custody Enforcement is responsible for enforcing support and custody orders.

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