Putting Children's Interest First - Federal-Provincial-Territorial Consultations on Custody and Access and Child Support

Part 1: Parenting after Separation or Divorce (continued)

MEETING ACCESS RESPONSIBILITIES

Further Reading

  • Overview and Assessment of Approaches to Access Enforcement, Martha Baily, Faculty of Law, Queen's University
  • The Problem of Access: Legal Approaches and Program Supports, Pauline O'Connor, Policy Research Consultant
  • Use of Dispute Resolution in Access Enforcement Effectiveness, Description of Models, and Policy Issues, prepared for the British Columbia Ministry of the Attorney General
  • Forthcoming 37

Problems arise when parents fail to abide by the terms of their written agreement or court order and deny access or fail to exercise access rights. This may happen for many reasons, including a misunderstanding about what the agreement or order requires parents to do.

Access problems can range from relatively minor incidents of access being denied on a particular occasion, because the children are ill, for example, to serious high-conflict disputes between parents. Disruption of the parent-child bond through a parent's failure to exercise access is also a significant problem. Research shows that serious problems with access are much more likely to occur when there is a history of abuse or high conflict between the parents.

While approaches differ, many provinces and territories have specific laws regarding access enforcement. Provincial and territorial enforcement rules apply to court orders made under the federal Divorce Act.

There are several ways to deal with access problems. These include supervised access, mediation, court-ordered assessment reports, scheduled time to make up for lost access time, reimbursement of expenses, variation of the custody order, and fines or imprisonment to respond to deliberate, unreasonable non-compliance. However, judges rarely imprison parents as they do not see it to be in the children's best interests.

Currently, applying the "best interests of the child" principle appears to be an important factor in how judges decide on appropriate enforcement measures. Responding to access issues is generally acknowledged to be very different from enforcing a support or judgment debt.

Similarly, there is reluctance to link the obligation to pay support to the entitlement to or exercise of access because it is not usually considered to be consistent with the best interests of children. The prevailing view appears to be that it is not generally in the best interests of children to force an unwilling parent to visit them.

Access is the children's right. Parents' interests should not take priority over children's best interests when it comes to enforcing access. This section looks at how laws and services dealing with access enforcement can protect children's rights and best interests most effectively.

Looking at Services

Please check any one or more of the following services that you think would be most effective in encouraging parents to live up to their parenting responsibilities.

Parent education:
these programs help improve communication between parents and help them better understand their respective responsibilities to their children at the time the access order is made.
Parenting skills courses:
these programs help alleviate concerns about the capacity of parents to properly care for their children, and help parents establish an ongoing support network.
Counselling:
counselling sessions can help parents deal with underlying problems.
Model access orders:
these help people develop clear and appropriate access orders.
Public education:
these courses teach people the consequences of not complying with court orders.
Early identification, screening and assessment of difficult cases: these procedures help identify difficult cases and refer parents to appropriate services.
Assessment:
this service helps determine the children’s current needs and circumstances.
Supervised access and exchange centres:
these offer a safe, supervised environment for children’s access and for parents to pick up and drop off their children.
Legal aid:
this service provides legal advice or representation to financially eligible parents.
Special courts: these deal only with family and children’s matters.

If you have had any personal experience with any of these services, please comment in your feedback booklet on how useful the services were in ensuring parents lived up to their parenting responsibilities.

Please describe in your feedback booklet any other family law services that you think would be useful to help ensure parents fulfill their parenting responsibilities.

Looking at the Law

Please check any one or more of the following legislative approaches that you think would be most effective in encouraging compliance with access orders.

  • Require the non-complying parent to give the other parent access to the children to make up for the time he or she missed.
  • Require the non-complying parent to deposit money or other valuables with the court, which the parent would forfeit if he or she fails to allow access.
  • Require either parent and/or the children to attend an educational seminar, parenting course, counselling or other similar type of session, and provide proof that they did.
  • Allow the judge to appoint a mediator to help resolve the dispute.
  • Require the non-complying parent to reimburse the other parent for any costs he or she has as a result of the denial of access.
  • Fine the non-complying parent an amount for each day that access has been or is being denied, up to a maximum. If the parent does not pay, the judge may order that he or she be sent to prison for up to a maximum time.
  • Imprison the non-complying parent continuously or intermittently, up to a maximum time, for denying access.
  • Direct an enforcement officer to help a parent obtain access to the children when the judge is satisfied, based on the non-complying parent’s history of denying access or other grounds, that he or she will deny access.
  • Direct either or both parents to do anything the judge considers appropriate in the circumstances to encourage them to comply with the access order.

Please describe in your feedback booklet any other legislative approaches that you think would be useful to encourage parents to fulfill their parenting responsibilities.

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