Overview and Assessment of
Approaches to Access Enforcement

2001-FCY-8E

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CONCLUSIONS

The major question related to access enforcement is whether or not governments will take on the responsibility to provide preventive, alternative and enforcement services for access disputes. If a court-connected office similar to Michigan's assumed these responsibilities, this would help parents and children who are experiencing difficulty with access. A system that ensured that preventive and alternative measures were used before the matter was taken to court would address the problem of courts having to deal with access disputes for which they are not the appropriate forum,⁽²⁴⁰⁾ and presumably would reduce the number of disputes that would proceed to a hearing. Assigning enforcement responsibility to a court-connected office may also alleviate the problem identified in Australia of non-custodial parents using enforcement proceedings to harass the custodial parent--the office would be responsible for filtering out unfounded or frivolous claims.

Providing preventive, alternative and enforcement services would require significant resources, however, and, therefore, governments may not want to assume responsibility. If governments took responsibility for providing preventive, alternative, and enforcement services, and then did not provide adequate resources for these services, there would almost certainly be considerable dissatisfaction among clients. This has been the experience in Michigan, where the Friend of the Court office is underfunded, caseload levels are unmanageably high, and there are large numbers of complaints filed each year about the office. Even a properly funded office would likely generate complaints because of the nature of the custody and access issues.

Apart from creating a court-connected office with responsibility for custody and access disputes, the federal, provincial and territorial governments may wish to take some smaller steps to improve the way in which access disputes are dealt with by making some statutory amendments and providing some additional services. Some suggestions for these are outlined below.

Based on the review of the literature, statutes and case law relating to access disputes, the following are suggested:

1. Implementation of the UN Convention on the Rights of the Child be part of the law reform process in relation to access enforcement;
   
   
2. The custody and access statutes of each jurisdiction include a list of factors that the court should consider when determining the best interests of the child, and the principle of maximum contact be only one of the factors to consider;
   
   
3. The legislation of all jurisdictions require that all access orders and variations of access orders be based on the best interests of the child;
   
   
4. The legislation of all jurisdictions require that the views of the child be considered, when the child is capable of providing them, and given due weight when determining what access arrangements are in the best interests of the child;
   
   
5. The legislation of all jurisdictions provide that domestic violence is a factor that negatively affects the ability of the abuser to parent and that should be considered when determining custody and access;
   
   
6. The legislation of all jurisdictions provide that the best interests of the child be a primary consideration in any proceedings for enforcement of access orders, including contempt proceedings and applications for apprehension orders;
   
   
7. Provinces and territories set up a screening system for contested custody and access cases, early identification of difficult cases, and provide services to address issues that are likely to give rise to ongoing access enforcement problems;
   
   
8. Specific access orders that the parents and enforcement officers can easily understand be made when ongoing access problems are likely in order to prevent disputes and facilitate enforcement actions;
   
   
9. Provinces and territories set up a system for evaluating complaints of access denial and failure to exercise access to determine the appropriate course of action;
   
   
10. Provinces and territories provide either mandatory or voluntary parental education for all contested custody and access disputes;
    
    
11. All provinces and territories give courts the explicit authority to order parental education in cases of access denial or failure to exercise access;
    
    
12. Provincial and territorial legislation authorizing courts to order mediation be repealed;
    
    
13. All provinces and territories provide voluntary mediation services for custody and access disputes and set standards for those services;
    
    
14. All jurisdictions authorize courts to order that access be supervised when necessary to protect the best interests of the child;
    
    
15. All provinces and territories allow supervised access to be ordered in cases of wrongful denial of access or failure to exercise access;
    
    
16. All provinces and territories provide supervised access facilities and the necessary services to address the problems that created the need for supervision;
    
    
17. All provinces and territories develop a statutory definition of wrongful access denial and provide remedies for access denial only when it is wrongful;
    
    
18. All jurisdictions authorize courts to order compensatory access;
    
    
19. All provinces and territories authorize courts to order compensation for expenses incurred as a result of wrongful access denial or wrongful failure to exercise access;
    
    
20. All provinces and territories allow apprehension and delivery of a child by a law enforcement officer or other person to a person entitled to access;
    
    
21. All provinces and territories provide training for enforcement officers, and allow only trained enforcement officers to apprehend wrongfully withheld children;
    
    
22. All provinces and territories extend to inferior courts the power to impose specific penalties for non-compliance with access orders;
    
    
23. All provinces and territories provide that suspension of child support and transfer of custody may not be used as remedies for wrongful access denial;
    
    
24. No province or territory require that the custodial parent be ordered to provide the non-custodial parent with notice of an intended move and information on the new address when this would lead to harassment, abuse, serious harm or injury of the custodial parent or child;
    
    
25. All provinces and territories consider giving courts the authority, in the context of likely violation of a non-removal order or agreement, to order a person to a) transfer property to a trustee to be held subject to terms and conditions, b) make any child support payments to a trustee, c) post a bond payable to the applicant, or d) surrender his or her passport, the child's passport or other travel documents;
    
    
26. All provinces and territories allow courts to order that information needed to enforce an access order be given to the court, and that the court may then give the information to such person or persons the court considers appropriate;
    
    
27. All provinces and territories authorize courts to order the return home of a child who has been wrongfully removed to or retained in the jurisdiction, or when the court does not have jurisdiction;
    
    
28. All provinces and territories consider extending Legal Aid to qualifying parents who are attempting to enforce a right to access in cases governed by the Hague Convention on the Civil Aspects of International Child Abduction;
    
    
29. Central authorities continue to treat non-removal orders, agreements and laws as giving rise to rights of custody within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction, and leave it for the courts to determine otherwise;
    
    
30. All provinces and territories provide for unilateral recognition and enforcement of foreign and extraprovincial access orders;
    
    
31. All provinces and territories consider creating a court-connected office responsible for providing intake of custody and access disputes, evaluation, parental education, mediation and supervised access, and for enforcing access orders when preventive and alternative measures fail.

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²⁴⁰ See, for example, Reithofer v. Dingley, [2000] O.J. No. 1132 (Sup. Ct. Just.).

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