Overview and Assessment of Approaches to Access Enforcement: An Update

Appendix A: Summary of Federal, Provincial and Territorial Statutes

1) Best Interests of the Child

Every Canadian jurisdiction requires that access orders be based on the best interests of the child.

The Divorce Act, s 16(8) provides that, when making an access order, “the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.” Section 16(9) specifically provides that past conduct of an applicant shall not be considered as conduct relevant to the ability to parent. The only specific factor to be considered is set out in s 16(10): “the court shall give effect to the principle that a child... should have as much contact with each spouse as is consistent with the best interests of the child.

In Alberta, the Family Law Act, s 18 provides that when making orders relating to children, including access orders, a court shall consider only the best interests of the child, and further provides that in determining the best interests of the child the court shall

  1. ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and
  2. consider all the child’s needs and circumstances, including
    1. the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development,
    2. the history of care for the child,
    3. the child’s cultural, linguistic, religious and spiritual upbringing and heritage,
    4. the child’s views and preferences, to the extent that it is appropriate to ascertain them,
    5. any plans proposed for the child’s care and upbringing,
    6. any family violence, including its impact on
      1. the safety of the child and other family and household members,
      2. the child’s general well-being,
      3. the ability of the person who engaged in the family violence to care for and meet the needs of the child, and
      4. the appropriateness of making an order that would require the guardians to co-operate on issues affecting the child,
    7. the nature, strength and stability of the relationship
      1. between the child and each person residing in the child’s household and any other significant person in the child’s life, and
      2. between the child and each person in respect of whom an order under this Part would apply,
    8. the ability and willingness of each person in respect of whom an order under this Part would apply
      1. to care for and meet the needs of the child, and
      2. to communicate and co-operate on issues affecting the child,
    9. taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian,
    10. the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and
    11. any civil or criminal proceedings that are relevant to the safety or well-being of the child.

In British Columbia, the Family Law Act, s 37 provides that courts must consider the best interests of the child only, and further requires that all of the child’s needs and circumstances be considered, including

  1. the child’s health and emotional well-being;
  2. the child’s views, unless it would be inappropriate to consider them;
  3. the nature and strength of the relationships between the child and significant persons in the child’s life;
  4. the history of the child’s care;
  5. the child’s need for stability, given the child’s age and stage of development;
  6. the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
  7. the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
  8. whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
  9. the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
  10. any civil or criminal proceeding relevant to the child’s safety, security or well-being.

As well, the provision provides that a court may consider a person’s conduct only if it substantially affects one of the listed factors and only to the extent that it affects that factor. Section 38 sets out factors that a court must consider when assessing family violence in the context of a best interests of the child determination.

In Manitoba, the Family Maintenance Act, s 2(1) provides that when determining access, the “best interests of the child shall be paramount.” Under section 2(2), the court may consider the views and preferences of the child, when the court is satisfied that a child is able to understand the nature of the proceedings and the court considers that it would not be harmful to the child. Section 39(2) says that the court may order that “the non-custodial parent have access, at such times and subject to such conditions as the court deems convenient and just, for the purpose of visiting the child and fostering a healthy relationship between parent and child.

In New Brunswick, the Family Services Act, s 129(3) provides that the court may make an order for access and that the order is “to be made on the basis of the best interests of the child.” Under section 1, the “best interests of the child” is defined as “the best interests of the child under the circumstances” taking into consideration

  1. the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both;
  2. the views and preferences of the child, where such views and preferences can be reasonably ascertained;
  3. the effect upon the child of any disruption of the child’s sense of continuity;
  4. the love, affection and ties that exist between the child and each person... to whom access to the child is granted...; …
  5. the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and
  6. the child’s cultural and religious heritage.”

In Newfoundland, the Children’s Law Act, s 31(1) provides that an application for access “shall be determined on the basis of the best interests of the child.” Section 31(2) provides that when determining the best interests of the child in an application for access, the court “shall consider all the needs and circumstances of the child, including

  1. the love, affection and emotional ties between the child and,
    1. each person entitled to or claiming... access to the child;
    2. other members of the child’s family who live with the child; and
    3. persons involved in the care and upbringing of the child;
  2. the views and preferences of the child, where the views and preferences can reasonably be ascertained;
  3. the length of time the child has lived in a stable environment;
  4. the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and the special needs of the child;
  5. the ability of each parent seeking the custody or access to act as a parent;
  6. plans proposed for the care and upbringing of the child;
  7. the permanence and stability of the family unit with which it is proposed that the child will live; and
  8. the relationship by blood or through an adoption order between the child and each person who is a party to the application.

Under section 31(3), the court, when assessing a person’s ability to act as a parent, “shall consider whether the person has ever acted in a violent manner towards: a) his or her spouse or child; b) his or her child’s parent; or c) another member of the household, [and] otherwise a person’s past conduct shall only be considered if the court thinks it is relevant to the person’s ability to act as a parent.

In the Northwest Territories, the Children’s Law Act, s 17(1), and in Nunavut, the Children’s Law Act, s 17(1) say that an application for access “shall be determined in accordance with the best interests of the child, with a recognition that differing cultural values and practices must be respected in that determination.” Under section 17(2), when determining the best interests of the child on an application for access, the court must consider all the needs and circumstances of the child including

  1. the love, affection and emotional ties between the child and
    1. each person entitled to or seeking... access,
    2. other members of the child’s family, and
    3. persons involved in the care and upbringing of the child;
  2. the child’s views and preferences if they can be reasonably ascertained;
  3. the child’s cultural, linguistic and spiritual or religious upbringing and ties;
  4. the ability and willingness of each person seeking custody to, directly or indirectly, provide the child with guidance, education and necessities of life and provide for any special needs of the child;
  5. the ability of each person seeking custody or access to act as a parent;
  6. who, from among those persons entitled... access, has been primarily responsible for the care of the child, including care of the child’s daily physical and social needs, arrangements for alternative care for the child where it is required, arrangements for the child’s health care and interaction with the child through, among other things, teaching, playing, conversation, reading and discipline;
  7. the effect a change of residence will have on the child;
  8. the permanence and stability of the family unit within which it is proposed that the child live;
  9. any plans proposed for the care and upbringing of the child;
  10. the relationship, by blood or through adoption, between the child and each person seeking... access;
  11. the willingness of each person seeking custody to facilitate access between the child and a parent of the child who is seeking custody or access.”

Under section 17(3), the court, when determining the best interests of the child, “shall also consider any evidence that a person seeking... access has at any time committed an act of violence against his or her spouse, former spouse, child, child’s parent or any other member of the person’s household or family and any effect that such conduct had, is having or may have on the child.” Section 17(4) provides that “a person’s past conduct may be considered in an application [for access] only where the court is satisfied that it is relevant to the person’s ability to act as a parent.” Section 17(5) provides that “the economic circumstances of a person seeking... access are not relevant to the person’s ability to act as a parent.

Nova Scotia enacted the Parenting and Support Act in 2015, but the new legislation is not yet in force. Still in place is the province’s Maintenance and Custody Act, s 18(5), which provides that when considering an application for access, court shall give paramount consideration to the best interests of the child. Subsection 18(6) provides that when determining the best interests of the child, the court shall consider all relevant circumstances, including

  1. the child’s physical, emotional, social and educational needs, including the child’s need for stability and safety, taking into account the child’s age and stage of development;
  2. each parent’s or guardian’s willingness to support the development and maintenance of the child’s relationship with the other parent or guardian;
  3. the history of care for the child, having regard to the child’s physical, emotional, social and educational needs;
  4. the plans proposed for the child’s care and upbringing, having regard to the child’s physical, emotional, social and educational needs;
  5. the child’s cultural, linguistic, religious and spiritual upbringing and heritage;
  6. the child’s views and preferences, if the court considers it necessary and appropriate to ascertain them given the child’s age and stage of development and if the views and preferences can reasonably be ascertained;
  7. the nature, strength and stability of the relationship between the child and each parent or guardian;
  8. the nature, strength and stability of the relationship between the child and each sibling, grandparent and other significant person in the child’s life;
    1. the ability of each parent, guardian or other person in respect of whom the order would apply to communicate and co-operate on issues affecting the child; and
  9. the impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed, including any impact on
    1. the ability of the person causing the family violence, abuse or intimidation to care for and meet the needs of the child, and
    2. the appropriateness of an arrangement that would require co-operation on issues affecting the child, including whether requiring such co-operation would threaten the safety or security of the child or of any other person.

Subsection 18(7) sets out factors to consider when considering family violence, abuse or intimidation in the context of a best interests of the child determination. Section 20 provides that the court may order the child to be brought before the court at any time during the proceeding.

Ontario’s Children’s Law Reform Act, s 19(a) provides that one of the purposes of the custody and access provisions is to ensure that applications to the courts about access are determined on the basis of the best interests of the children. Pursuant to s 24 (1), the merits of an application for access “shall be determined on the basis of the best interests of the child.” Section 24(2) provides that when determining the best interests of the child, “a court shall consider all the needs and circumstances of the child, including

  1. the love, affection and emotional ties between the child and
    1. each person entitled to or claiming... access to the child,
    2. other members of the child’s family who reside with the child, and
    3. persons involved in the care and upbringing of the child;
  2. the views and preferences of the child, where such views and preferences can reasonably be ascertained;
  3. the length of time the child has lived in a stable home environment;...
  4. any plans proposed for the care and upbringing of the child;...
  5. the relationship by blood or through an adoption order between the child and each person who is party to the application.”

Under s 24(3) the past conduct of a person is not relevant to a determination of access “unless the conduct is relevant to the ability of the person to act as a parent of a child.

Under s 24 (4), “in assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against, (a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any child.

In Prince Edward Island, the Custody Jurisdiction and Enforcement Act, s 2 (a) provides that one purpose of the Act is “to ensure that applications to the court in respect of custody of, incidents of custody of and access to, children will be determined on the basis of the best interests of the child.” Under section 8, the court, when considering an access application, “shall take into consideration the views and preferences of the child to the extent that the child is able to express them” and “may interview the child to determine the views and preferences of the child.

In Quebec, article 33 of the Civil Code of Quebec provides that “every decision concerning a child shall be taken in light of the child’s interest and the respect of his rights. Consideration is given, in addition to the moral, intellectual, emotional and material needs of the child, to the child’s age, health, personality and family environment, and to other aspects of his situation.” Article 34 provides that “the court shall, in every application brought before it affecting the interest of a child, give the child an opportunity to be heard if his age and power of discernment permit it.” Parents generally retain parental authority after separation, but article 606 provides that the court may, “for a grave reason and in the interest of the child,” deprive a parent of parental authority or withdraw an attribute of parental authority. When both parents retain parental authority but have disagreements, then recourse may be had to article 604, which provides that “in the case of difficulties relating to the exercise of parental authority, the person having parental authority may refer the matter to the court, which will decide in the interest of the child after fostering the conciliation of the parties.

The Code of Civil Procedure of Quebec, article 816.3, provides for representation and hearing of children.

Saskatchewan’s The Children’s Law Act, s 8 provides that when making an access order, the court shall have regard only for the best interests of the child and for that purpose shall take into account

  1. the quality of the relationship that the child has with the person who is seeking access,
  2. the personality, character and emotional needs of the child,
  3. the capacity of the person who is seeking access to care for the child during the times that the child is in his or her care, and
  4. the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child.

The provision further provides that the court is not to consider the past conduct of any person unless the conduct is relevant to the ability of that person to care for the child. Under s 6(5), the court, when making an order for custody or access, must “give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact.

Yukon’s Children’s Law Act, s 1 provides that “this Act shall be construed so that in matters arising under it the interests of the child affected by the proceeding shall be the paramount consideration, and where the rights or wishes of a parent or other person and the child conflict the best interests of the child shall prevail.” Section 29 states that one of the purposes of the custody and access provisions is to ensure that applications are determined in accordance with the best interests of the child. Section 30 (1) provides that when determining the best interests of the child in an access application, the court shall consider all the needs and circumstances of the child including:

  1. the bonding, love, affection and emotional ties between the child and,
    1. each person entitled to or claiming custody of or access to the child,
    2. other members of the child’s family who reside with the child, and
    3. persons involved in the care and upbringing of the child;
  2. the views and preferences of the child, where such views and preferences can be reasonably ascertained,
  3. the length of time, having regard to the child’s sense of time, that the child has lived in a stable environment,
  4. the ability and willingness of each person applying for custody of the child to provide the child with guidance, education, the necessaries of life and any special needs of the child,
  5. any plans proposed for the care and upbringing of the child,
  6. the permanence and stability of the family unit with which it is proposed that the child will live, and
  7. the effect that awarding custody or care of the child to one party would have on the ability of the other party to have reasonable access to the child.

Section 30 (2) provides that the past conduct of a person is not relevant to a determination of an application for access “unless the conduct is relevant to the ability of the person to have the care or custody of the child.” Section 30 (3) provides that there is no presumption that the best interests of the child are best served by placing the child with a female person rather than a male person nor the opposite.

Only the statutes of Alberta, Quebec, Manitoba and Saskatchewan provide that the best interests of the child are a consideration in regard to access enforcement orders.

Alberta’s Family Law Act, s 18 provides that when making orders relating to children, including access enforcement orders, a court shall consider only the best interests of the child. In Quebec, article 33 of the Civil Code of Quebec, provides that every decision concerning a child, which would include access enforcement decisions, shall be taken in light of the child’s interest and the respect of his rights. Manitoba’s The Child Custody Enforcement Act, s 14.1 provides that the court may order compensation for expenses or supervision of access in cases of wrongful access denial or wrongful failure to exercise access, “taking into account the best interests of the child.” Apprehension of the child and punishment for contempt are provided for in subsections 9 and 14, but these remedies are not subject to consideration of the best interests of the child.

Saskatchewan’s The Children’s Law Act, s 26 provides for remedies for wrongful denial of access and for wrongful failure to exercise the right of access, which may be ordered by the court when it is “of the opinion that it is in the best interests of the child.” Apprehension of the child and punishment for contempt are provided for in subsections 24 and 29, but these remedies are not subject to consideration of the best interests of the child.

2) Preventive and Alternative Measures

a) Parental Education

Parental education programs are now widely available, and in some provinces completion of a parental education program is mandatory.

Pursuant to Alberta’s Family Law Act, s 98 and Family Law Act General Regulation, s 5, a court may require the parties to attend the Parenting After Separation Seminar, and the seminar is required before parties file for a divorce.

Under BC’s Provincial Court Practice Directions, the Chief Judge of the Provincial Court “may give directions requiring parties in proceedings to attend parenting programs operated by the Ministry of Justice.” BC’s Family Law Act, s 61(2)(b) provides that in cases of wrongful denial of access, a court may “require one or more parties or, without the consent of the child’s guardian, the child, to attend counselling, specified services or programs.

Under Manitoba’s Court of Queen’s Bench Rules, Man Reg 553/88, Rule 70.24(29)3, a case conference judge may on their own motion or on request of a party order a party to attend Manitoba’s parental education program.

Pursuant to Rule 59.17 of Nova Scotia’s Civil Procedure Rules and Rule 6.25 of the Family Court Rules: “A party to a proceeding that involves a child must attend the court’s parent information program, unless the party is exempted from attending...” Parties may be exempted from attending if the case is not contested, they have already attended the program within the past year, or in other exceptional circumstances.

Pursuant to Rule 8.1 of the Family Law Rules, Ontario now requires parties in the majority of cases to participate in a Mandatory Information Program that provides information about separation/divorce and the legal process, including

  1. The effects of separation and divorce on adults and children;
  2. Alternatives to litigation;
  3. Family law issues;
  4. The Family Court process;
  5. Local resources and programs for families facing separation and/or divorce.

In the Yukon, the Supreme Court has issued Practice Direction Family-2 Parenting After Separation, which requires parents involved in contested cases involving children under the age of 16 to complete a parental education program, unless they do not live within a 30-kilometre radius of Whitehorse.

b) Mediation

Most Canadian jurisdictions provide for court-ordered mediation, and some provide free or government-subsidized mediation. Quebec requires parties to attend an information session on mediation prior to the hearing of any contested custody application. Ontario and Yukon allow court-ordered mediation only “at the request of the parties.” Only Newfoundland, the Northwest Territories and Nunavut explicitly authorize courts to order mediation in the case of wrongful access denial or wrongful failure to exercise access.

The Divorce Act, ss 9(2) requires lawyers acting for a party to a divorce proceeding to discuss with their clients on the advisability of negotiating support, custody or access and to tell them about mediation facilities that might be able to help negotiate those matters. Alberta’s Family Law Act, s 5, Saskatchewan’s The Children’s Law Act, s 11 and BC’s Family Law Act, s 8(2) have similar provisions. Alberta’s Family Law Act, s 97 also provides that a court may appoint a mediator to assist the parties in resolving the matters in issue. BC’s Family Law Act, s 10 also provides for family justice counsellors appointed by the province, who may assist the parties in working out parenting arrangements and other issues.

Manitoba’s Court of Queen’s Bench Act, s 47 provides “[w]here a judge or master is of the opinion that an effort should be made to resolve an issue otherwise than at a formal trial, the judge or master may, at any stage of the proceeding, refer the issue to a designated mediator.

New Brunswick’s Family Services Act, s 131 provides “[i]n any custody proceeding brought under this Part or in any other proceeding brought under this Part, if the court is of the opinion that any question arising might reasonably be the subject of conciliation, and that it would be in the best interests of the family to attempt to resolve the question through conciliation, the court may make an order requiring the Minister of Families and Children to make conciliation services available to the parties and may adjourn the proceeding for a reasonable time.

Newfoundland’s Children’s Law Act, s 37 provides that, in an application for custody or access, “the court, at the request of the parties, by order may appoint a person selected by the parties to mediate a matter specified in the order,” and that the court must only appoint a mediator who has consented to act. Under ss 41(2)(d) and 41(6)(c), the court may order the appointment of a mediator in accordance with section 37 for wrongful denial of access or failure to exercise access without reasonable notice or excuse.

In the Northwest Territories and Nunavut, the Children’s Law Act, s 71 provides that on an application for custody or access a court may appoint “a person selected by the parties to mediate any matter that the court specifies.” Under ss 30(2)(d) and 30(4)(c) the court may appoint a mediator in cases of wrongful denial of access or failure to exercise access without reasonable notice or excuse.

Nova Scotia’s Parenting and Support Act is not yet in force. Under s 40(5)(a) of the new statute, in cases of wrongful access denial a court may an order providing that any of the parties to the application or the child attend counselling or a specified program or obtain a specified service, and which parties must pay for the counselling, program or service.

Ontario’s Children’s Law Reform Act, s 31 provides that, at the request of the parties, the court may make an order appointing a person to mediate any matter.

The Code of Civil Procedure of Quebec, articles 814.3-815.2, set out the following. First, the parties are required to attend an information session on the mediation process before the hearing of a disputed custody or access application in court. At the end of the information session, the couple must choose between mediation and court proceedings. At any time, either party may terminate mediation without having to give reasons and the mediator is required to terminate mediation when they consider pursuing it to be ill advised. The Family Mediation Service of the Superior Court must pay the mediator’s fees up to the prescribed number of sessions. The court, at any time before judgment, may adjourn the hearing of an application, with a view to either reconciliation of the parties or their conciliation, in particular through mediation. The court may adjourn the hearing and refer the parties to mediation, each party bearing the proportion of the mediator’s fees determined by the court.

Saskatchewan’s The Children’s Law Act, s 10 provides that a court may order mediation on application of one of the parties, but that either party, at any time after the first mediation session, may discontinue the mediation and proceed to have court resolve the matters at issue.

Yukon’s Children’s Act, s 42 allows the court in an application for custody or access to, at the request of the parties, appoint a person selected by the parties to mediate. 

c) Supervised Access

Statutes that explicitly address the court’s ability to specify that access be supervised are found in Newfoundland (Children’s Law Act, s 40); the Northwest Territories and Nunavut (Children’s Law Act, s 23); Ontario (Children’s Law Reform Act, s 34); and the Yukon (Children’s Act, s 35). Saskatchewan’s legislation implies that courts may order supervised access, because it explicitly provides that when supervised access is ordered, the court may specify how much each party will pay: The Children’s Law Act, 1997, s 6(8).

Statues that explicitly allow a court to order that access be supervised in cases of wrongful denial of access or wrongful failure to exercise access are found in Manitoba, (Child Custody Enforcement Act, s 14.1); Newfoundland, (Children’s Law Act, ss 41(2)(a) and 41(6)(a)); the Northwest Territories and Nunavut (Children’s Law Act, ss 30(2)(b) and 30(4)(a)); and Saskatchewan (The Children’s Law Act, 1997, ss 26(1)(b) and (2)(a)). In cases of wrongful access denial, BC’s Family Law Act, s 61(2)(e) provides that a court may “require that the transfer of the child from one party to another be supervised by another person.” Nova Scotia’s Parenting and Support Act is not yet in force. Under ss 40(5)(d) and (e) of the new legislation, in cases of wrongful access denial a court may make an order that the transfer of the child for access be supervised, and which parties must pay for the costs associated with the supervision, or that access be supervised, and which parties must pay for the costs associated with the supervision.

3) Remedies for Access Denial

a) Justified Access Denial

Some provinces explicitly address justified access denial and provide for remedies only if the denial is wrongful or limit remedies available for justified access denial.

Alberta’s Family Law Act, s 40 provides that a court may refuse to enforce an access order if the court is of the opinion that denial of access was “excusable.” The statute does not specify when denial of access is excusable.

BC’s Family Law Act, s 62 provides

  1. For the purposes of section 61 [denial of parenting time or contact], a denial of parenting time or contact with a child is not wrongful in any of the following circumstances:
    1. the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;
    2. the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;
    3. the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner or nurse practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;
    4. in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;
    5. the applicant
      1. informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and
      2. did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;
    6. other circumstances the court considers to be sufficient justification for the denial.
  2. If, on an application under section 61, the court finds that parenting time or contact with a child was denied, but was not wrongfully denied, the court may make an order specifying a period of time during which the applicant may exercise compensatory parenting time or contact with the child.

Newfoundland’s Children’s Law Act, s 41(4) provides that a remedy is available only when denial of access is “wrongful,” and provides that denial of access is not wrongful in the following circumstances:

  1. when the respondent believes on reasonable grounds that the child will suffer physical or emotional harm if access is exercised;
  2. when the respondent believes on reasonable grounds that he or she might suffer physical harm if access is exercised;
  3. when the respondent believes on reasonable grounds that the applicant is impaired by alcohol or a drug at the time of access;
  4. when the applicant fails to present himself or herself to exercise the right of access within one hour of the time specified in the order or the time otherwise agreed on by the parties;
  5. when the respondent believes on reasonable grounds that the child is suffering from an illness of such a nature that it is not appropriate to allow access be exercised;
  6. when the applicant does not satisfy written conditions that were agreed on by the parties or that are part of the order for access;
  7. when, on numerous occasions during the preceding 12 months, the applicant had, without reasonable notice and excuse, failed to exercise the right of access;
  8. when the applicant had informed the respondent that he or she would not seek to exercise the right of access on the occasion in question;
  9. when the court thinks that the withholding of the access is, in the circumstances, justified.

The Northwest Territories’ and Nunavut’s Children’s Law Act, s 30 and Saskatchewan’s The Children’s Law Act, s 26(1) provide for enforcement of access orders when access has been “wrongfully denied” but do not define this term.

Nova Scotia’s Parenting and Support Act is not yet in force. Pursuant to s 40(3) of the new statute, the first step for the court is to determine whether access denial was “wrongful,” taking into account all the relevant circumstances, including whether there was

  1. a reasonable belief that the child would suffer family violence, abuse or intimidation if the parenting time, contact time or interaction was to be exercised;
  2. a reasonable belief that the applicant was impaired by drugs or alcohol at the time the parenting time, contact time or interaction was to be exercised;
  3. repeated failure, without reasonable notice or excuse, by the applicant to exercise parenting time, contact time or interaction in the twelve months immediately prior to the denial; or
  4. a failure by the applicant to give notice of when parenting time, contact time or interaction would be reinstated following advance notice that the time would not be exercised.

If the court finds that access was denied but not wrongfully denied, pursuant to s 40(4) the court may order that the applicant have compensatory access, but other remedies are not available.

b) Compensatory Access and Compensation for Expenses

Compensatory access and compensation for expenses incurred as a result of access denial is explicitly provided for in some provincial and territorial statutes.

Alberta’s Family Law Act, s 40(2)(a) explicitly provides that a court may order compensatory access, and s 40(2)(c) provides that a court may order reimbursement of expenses actually incurred as a result of the denial of access.

BC’s Family Law, s 61(2) provides that in cases of wrongful access denial a court may

  1. (c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;
  2. (d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses.
  1. (i) [require payment of] an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial.

Manitoba’s Child Custody Enforcement Act does not expressly provide for compensatory access, but s 7 does allow the court to make other orders to give effect to a recognized order, which could include compensatory access. Section 14.1(1)(a) allows a court to order the custodial parent to provide reimbursement “for any reasonable expenses actually incurred as a result of wrongful denial of access.

Newfoundland’s Children’s Law Act, s 41(2)(a) provides that “where the court is satisfied that access is being wrongfully denied to the applicant, the court may order the respondent to give the applicant compensatory access to the child for a period agreed on by the parties, or where the parties do not agree for a period that the court considers appropriate.” Under section 41(3), “compensatory access shall not be longer than the access that was wrongfully denied.

In the Northwest Territories and in Nunavut, the Children’s Law Act, s 30(2) says that, when a court is satisfied that the applicant has been wrongfully denied access, the court may “make such orders as it considers appropriate, including any one or more of the following orders: a) requiring the respondent to give the applicant compensatory access to the child for the period agree to by the parties, or, if the parties do not agree, for the period the court considers appropriate;... c) requiring the respondent to reimburse the applicant for any reasonable expenses actually incurred as a result of wrongful denial of access.

Nova Scotia’s Parenting and Support Act is not yet in force. Under s 40(4) of the new statute, if the court finds that access was denied but not wrongfully denied, the court may order that the applicant have compensatory access. Under s 40(5)(b), compensatory access also may be ordered when denial of access was wrongful. Under s 40(5)(c) compensation for expenses incurred as a result of access denial may be ordered.

Saskatchewan’s The Children’s Law Act, s 26(1)(a) provides that when a court is satisfied that a person has been wrongfully denied access it may “require the respondent to give the applicant compensatory access to the child for the period: (i) agreed to by the parties; or (ii) that the court considers appropriate if the parties do not agree.” Under section 27, in an application for enforcement of access under the Act or in an application under The International Child Abduction Act, 1996, “a court may order the respondent to pay necessary expenses incurred or to be incurred by the applicant, including: a) travel expenses; b) the costs of locating and returning the child; c) lost wages;... e) legal fees; and f) any other expenses the court may allow.

c) Apprehension Orders

The following provinces and territories have given statutory power to courts to make an order authorizing a person entitled to access or someone on that person’s behalf to apprehend the child in order to give effect to the access order: Manitoba, in The Child Custody Enforcement Act, s 9, and the Family Maintenance Act, s 11; New Brunswick, in the Family Services Act, s 132.1; Newfoundland, in the Children’s Law Act, s 43; Northwest Territories and Nunavut, in Children’s Law Act, s 31; Ontario, in the Children’s Law Reform Act, s 36; Prince Edward Island, in the Custody Jurisdiction and Enforcement Act, s 21; and Yukon, in the  Children’s Act, s 46. These same jurisdictions, along with Alberta in its Family Law Act, s 44 and Saskatchewan, in The Children’s Law Act, s 24, empower courts to direct a law enforcement officer to apprehend and deliver the child to the person entitled to access.

d) Contempt Proceedings

In Alberta, the Provincial Court Act, s 9.61 provides that contempt of a court order may be punished by a fine of up to $25,000 or imprisonment for up to two years.

BC’s Family Law Act, s 61(2)(g)(ii) provides that in cases of wrongful access denial a court may impose a fine of up to $5,000.

Manitoba’s Child Custody Enforcement Act, s 14(1) provides that contempt of court orders for access may be punished by a fine of no more than $500, or prison for no more than six months, or both. The Family Maintenance Act, s 50(1) provides that a person who fails to comply with an order made under the Act is guilty of an offence and liable on summary conviction to fine of not more than $500 or to imprisonment for not more than six months or to both.

New Brunswick’s Family Services Act, s 130.7(1) provides that “in addition to his powers in respect of contempt, every judge of the Provincial Court may punish by fine or imprisonment, or both, any wilful contempt of or resistance to the process or orders of the Court in respect of custody of or access to a child, but the fine shall not in any case exceed one thousand dollars nor shall the imprisonment exceed ninety days.

Newfoundland’s Children’s Law Act, s 46 provides that “in addition to its powers in respect of contempt, a Provincial Court judge may punish by fine or imprisonment, or both, a wilful breach of or resistance to its process or orders in respect of custody or access to a child, but the fine shall not exceed $1000 nor shall the imprisonment exceed 90 days.

In the Northwest Territories and Nunavut, the Children’s Law Act, s 73 provides that “in addition to its powers in respect of contempt, the Territorial court may punish a person for any wilful contempt of or resistance to its process or orders under this Act by imposing on the person a fine not exceeding $5,000, a term of imprisonment not exceeding 90 days or both.

Nova Scotia’s Maintenance and Custody Act, s 41 provides that the court make an order for contempt, which may include imprisonment continuously or intermittently for not more than six months.

Ontario’s Children’s Law Reform Act, s 38 provides that a court may punish contempt with a fine of up to $5,000 or imprisonment up to 90 days.

Articles 49 and 50 of the Code of Civil Procedure of Quebec allow a court to condemn a person who is guilty of contempt of a court order. Article 51 provides that a person guilty of contempt of court is liable to a fine of up to $5,000 or to imprisonment for not more than one year. Imprisonment for refusal to obey an order may be repeated until the person obeys.

Saskatchewan’s The Children’s Law Act, s 29(1) provides that a court that is satisfied that a person has displayed “wilful contempt of orders or resistance to its process or orders with respect to custody of or access to a child” may impose: “a) in the case of a first finding of contempt: (i) a fine of not more than $5,000; (ii) imprisonment for a term of not more than 90 days; or (iii) both that fine and imprisonment; and b) in the case of a second or subsequent finding of contempt: (i) a fine of not more than $10,000; (ii) imprisonment for a term of not more than two years; or (iii) both that fine and imprisonment.

e) Variation of Custody

Saskatchewan expressly provides that variation is a remedy for wrongful access denial. The Children’s Law Act, s 26(1)(e) provides that, 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.” Nova Scotia’s Parenting and Support Act is not yet in force. Under s 40(6) of the new statute, a finding that access was wrongfully denied constitutes a material change in circumstances for the purpose of a variation order regarding custody or access.

4) Remedies for Abduction

a) Notice of a Proposed Move

The Divorce Act, s 16(7) authorizes a court to order that a custodial parent must provide at least 30 days’ notice of a move as well as information on the date of the move and the child’s new place of residence.

Alberta’s Family Law Act, s 33(2) provides that “the court may include in a parenting order a term requiring a guardian who intends to change his or her place of residence or that of the child to notify the other guardian or guardians, at least 60 days before the change or within such other period before the change as the court may specify, of the change, the date on which the change will be made, and the new place of residence for the guardian or the child, as the case may be.

BC’s Family Law Act, s 66 requires 60 days’ notice of a proposed relocation that includes the date of the relocation and the new location. Importantly, the court may grant an exemption to this requirement where it may create a risk of family violence or where there is no relationship between the child and the access parent.

b) Orders of Return

Most provinces and territories provide by statute that a court may order the return of a child. For example, Ontario’s Children’s Law Reform Act, s 40 provides

Upon application, a court,

  1. (a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or
  2. (b) that may not exercise jurisdiction … or that has declined jurisdiction … may do any one or more of the following:
    1. 1. Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.
    2. 2. Stay the application subject to,
      1. i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or
      2. ii. such other conditions as the court considers appropriate.
    3. 3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.

As well, all provinces and territories have implemented by statue the Hague Convention on the Civil Aspects of International Child Abduction. See, for example, Ontario’s Children’s Law Reform Act, s 46.

c) Criminal Charges

Criminal Code provisions relating to parental child abduction are

282(1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in contravention of the custody provisions of a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (b) an offence punishable on summary conviction.

283 (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (b) an offence punishable on summary conviction.

5) Enforcement of Foreign Access Orders

Most provinces and territories provide for unilateral recognition of foreign access orders. For example, Ontario’s Children’s Law Reform Act, s 41 provides

  1. Upon application by any person in whose favour an order for the custody of or access to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied
    1. that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;
    2. that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;
    3. that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;
    4. that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or
    5. that …the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario. 
  2. An order made by an extra-provincial tribunal that is recognized by a court shall be deemed to be an order of the court and enforceable as such. 

6) Enforcement Against the Non-custodial Parent

Some provinces provide statutory remedies for failure to exercise access.

Alberta’s Family Law Act, s 41 provides

Where a person who has a right under a time with a child clause fails to exercise that right without reasonable notice to a guardian, the court may, on application by that guardian, make an order requiring the person to reimburse the guardian for any necessary expenses actually incurred by that guardian as a result of the failure to exercise that right.

BC’s Family Law Act, s 63(1) provides that in cases of repeated failure to exercise access, whether or not reasonable notice was given, a court may order that the parties participate in family dispute resolution; that one or more parties to attend counselling, that the transfer of the child from one party to another be supervised, or that the custodial parent be reimbursed for expenses “reasonably and necessarily incurred” as a result of the failure to exercise access, including travel expenses, lost wages and child care expenses.

Manitoba’s Child Custody Enforcement Act, s. 14.1, provides

Where the court, upon application, is satisfied that a person in whose favour an order has been made for access to a child at specific times or on specific days has wrongfully failed to exercise the right of access or to return the child as the order requires, the court may make one or both of the following orders, taking into account the best interests of the child:

  1. require the respondent to reimburse the applicant for any reasonable expenses actually incurred as a result of the failure to exercise the right of access or to return the child as the order requires;
  2. require supervision of the access where the court is satisfied that a person or agency is willing and able to provide proper supervision.

Newfoundland’s Children’s Law Act, s 41(6) provides

Where the court is satisfied that the respondent without reasonable notice and excuse, failed to exercise the right to access or did not return the child as the order requires, the court may order

  1. supervision;
  2. the respondent to reimburse the applicant for reasonable expenses actually incurred as a result of the failure to exercise the right to access or to return the child as the order requires; and
  3. the appointment of a mediator.

In the Northwest Territories and in Nunavut the Children’s Act, s 30(4) applies to failure to exercise access without reasonable notice or excuse. It allows a court to order supervision of access, reimbursement of the custodial parent for any reasonable expenses actually incurred as a result of failure to exercise access, appointment of a mediator, or that the access parent provide an address and telephone number.

Nova Scotia’s Parenting and Support Act is not yet in force. Under s 40A of the new statute, if a court determines that there has been failure to exercise access without reasonable excuse, the court may make and order that

  1. that any of the parties to the application or the child attend counselling or a specified program or obtain a specified service, and which parties must pay for the counselling, program or service;
  2. that the respondent exercise compensatory parenting time, contact time or interaction;
  3. that the respondent reimburse the applicant for expenses incurred as a result of the respondent's failure to exercise the parenting time, contact time or interaction;
  4. that the transfer of the child for parenting time or contact time be supervised, and which parties must pay for the costs associated with the supervision;
  5. that parenting time, contact time or interaction be supervised, and which parties must pay for the costs associated with the supervision;
  6. the payment of costs for the application by one or more of the parties;
  7. that the parties appear for the making of an additional order; and
  8. the payment of no more than five thousand dollars to the applicant or to the applicant in trust for the child.

As well, under s 40A(4), failure to exercise access without reasonable excuse, constitutes a material change in circumstances for the purpose of a variation order regarding custody or access.

In Saskatchewan, The Children’s Law Act, s 26(2) allows a court to order the non-custodial parent to give security for performance of the obligation or provide their address and telephone number.

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