Overview and Assessment of
Approaches to Access Enforcement

2001-FCY-8E

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EXECUTIVE SUMMARY

In February 2000, the Child Support Team of the Department of Justice Canada commissioned an overview and assessment of legal approaches to access enforcement. The purpose of this project was to produce a comparative review of legal approaches to the problem of enforcement of access orders, and to investigate and analyze Canadian case law and legislation.

METHOD

Information for this report was collected through a review of the legislation governing access in Canada, Canadian and international literature on access issues, and Canadian case law on access. In addition, the author contacted researchers, academics, government officials and practitioners for information and comment, visited Michigan’s Friend of the Court program and conducted interviews with government officials and members of fathers’ rights groups in Michigan.

FINDINGS

Nature and Scope of Access Denial and Failure to Exercise Access

Most custodial parents support continued access by the non-custodial parent. Many custodial parents deny access occasionally for reasons such as illness of the child. Denial of access is much more prevalent in conflictual access cases than in the majority of access cases, which are not conflictual. Within the court system, there are far more cases relating to failure to pay support than to access denial.

Some non-custodial parents fail to exercise access or fail to maintain a positive relationship with their children. The disengagement of non-custodial parents seems to increase in the years following separation. The reasons for disengagement are varied. Most custodial parents would like more contact between their children and the non-custodial parent.

Canadian Laws and Programs

The best interests of the child standard is widely accepted and implemented across Canada. However, some laws and judicial decisions are inconsistent with children’s right to have custody and access determined according to that standard, to have their views when they are capable of providing them, heard and given due weight, to be protected from parental abuse, and to have their best interests considered in relation to enforcement of access orders. Successful enforcement of access orders requires that these rights be honoured.

Various preventive and alternative measures are available across Canada, including assessments, parental education, mediation and supervised access. However, these measures are not available in all parts of Canada and government funding for them is sporadic. No government requires these services to be provided, except Quebec, which mandates mediation services. It is widely accepted that mediation should be voluntary but some jurisdictions provide for court-ordered involuntary mediation.

Most provinces and territories do not legally define wrongful access denial, so that the circumstances in which a remedy should be available are unclear. Most jurisdictions do not explicitly provide for compensatory access, but judges order this even without explicit authority. In addition, jurisdictions do not explicitly provide for compensation for expenses the non-custodial parent incurs as a result of wrongful access denial, but judges also order this even without explicit authority. Most jurisdictions authorize judges to order that a party may apprehend a child or allow judges to direct law enforcement officers to apprehend a child who is being wrongfully withheld from an access visit. Parties, judges and law enforcement officers have concerns about such orders, and there is wide agreement that apprehension is a remedy of last resort that requires clear orders and trained personnel.

Criminal contempt is an available remedy for some cases of access denial, but there is wide agreement that it should be resorted to only when civil remedies fail and in keeping with the best interests of the child. Civil contempt proceedings are the most common remedy for access denial but are not very effective, and imposing penalties for contempt is often inconsistent with the best interests of the child. Despite the lack of explicit legislative authority, some courts have suspended child support or transferred custody as a remedy for access denial. Many courts, however, reject these approaches and point out that they are inconsistent with the rights and interests of the child.

Most Canadian jurisdictions have enacted measures aimed at preventing parental child abduction, legislation authorizing courts to order the release of information from persons or governments to help locate a child for the purpose of enforcing an access order, and legislation authorizing courts to order the return of a child who has been wrongfully removed from another province, territory or country or where the court lacks jurisdiction. Every province and territory has implemented the Hague Convention on the Civil Aspects of International Child Abduction. It is not clear in Canada whether a non-removal agreement, final order or law gives rise to rights of custody within the meaning of the Convention. Most parties to the Convention have ruled that they do, but obiter dicta in two Supreme Court of Canada decisions suggest otherwise. The Criminal Code provisions on parental child abduction have occasionally been invoked in cases of abductions by custodial parents.

Almost every Canadian jurisdiction has enacted legislation to provide for unilateral recognition and enforcement of foreign and extra-provincial access orders.

Most jurisdictions do not provide any remedies for failure to exercise access and do not define wrongful failure to exercise access. A few jurisdictions provide for compensation to the custodial parent for expenses incurred as a result of the non-custodial parent’s failure to exercise access. A few provide that mediation or supervised access may be ordered. In one jurisdiction the court may order the non-custodial parent to give security for performance of the obligation or to provide his or her address and telephone number.

No jurisdiction provides for a government office with responsibility for enforcing access orders.

Foreign Legal Models

The United States pays relatively little attention to the rights and interests of the child in relation to access and access enforcement, while parental rights are protected by the Constitution. Civil contempt proceedings against the custodial parent are the primary method of dealing with access denial. Children who refuse access have been found in contempt in a few cases.

Michigan is the only state with a state-wide agency that enforces access orders. Fathers’ rights groups in Michigan have been active in lobbying for stronger enforcement and, now, a presumption of joint physical custody. Michigan’s Friend of the Court program provides preventive, alternative and enforcement services in relation to custody and access, and also enforces support orders. The Friend of the Court’s emphasis on prevention and non-adversarial dispute resolution, and its rigorous, integrated approach to enforcement, are features that Canadian jurisdictions may want to adopt. However, the Friend of the Court program is not adequately funded, caseload levels are high, and many complaints are filed about the office each year. American states generally do not provide remedies for failure to exercise access, but parental education programs aimed in part at encouraging continuing parental involvement are widespread.

Australia has paid significant attention to the rights and best interests of the child in recent legislative reforms. However, application of a strong presumption that contact with the non-custodial parent is in the best interests of the child has led to concerns about orders that do not protect the best interests of the child or protect children from parental abuse and conflict. Australia has created supervised contact centres in some parts of the country, and these have been helpful for some families who have had access problems. Remedies for failure to exercise access are not in place. A Bill currently before Australia’s parliament is aimed at improving access enforcement through a three-stage process of preventive, remedial and punitive measures. The Bill has been criticized because it eliminates judicial discretion with regard to punitive sanctions and because of its rigidity. Australia’s Attorney General is currently considering suggestions for amending the Bill.

European countries attend to the rights and interests of the child. Most presume that access is in the best interests of the child, but there are varying opinions on how strong that presumption should be. Some countries provide for apprehension of a child to enforce access, while some provide for a fine or for imprisonment of the custodial parent; many provide for variation of the access order. A couple of countries posit access as a duty of the non-custodial parent. In some countries withdrawal of access rights or parental authority may be ordered for failure to exercise access, and Belgium provides for compensation to the custodial parent in such cases. A couple of countries provide that children may apply to enforce an access order against the non-custodial parent. In England and Wales there is concern about the failure to adequately address the problem of domestic violence in the context of custody and access arrangements and debate on the best method of doing so.

CONCLUSIONS

Access enforcement is a matter of provincial and territorial legislative jurisdiction for the most part. The major questions for provinces and territories are whether or not they want to assume responsibility for enforcement of access orders, as they have for support orders, and whether or not they want to mandate that preventive and alternative services be provided. Providing enforcement, preventive and alternative services will require significant resources.

In order to improve the current system of access enforcement, 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 provide a screening system for contested custody and access cases, undertake 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 custody and access disputes;

11. All provinces and territories provide 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 provide that supervised access may 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 provide 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 provide for 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 provide 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 providing courts with 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/her passport, the child’s passport or other travel documents;

26. All provinces and territories provide that courts may 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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