Can you force a child to go with the parent?
In Ontario, a recent case dealt with the issue of whether a parent can be found in contempt of an access order. This happened because one parent was refused parenting time on the basis that the child doesn’t want to go. So can you force a child to go with the parent?
In a court case, the parents had two daughters. A temporary order had been made mandating that the older daughter was to reside primarily with the father and the younger daughter was to remain with the mother.
The father was to have access time with the younger daughter every second weekend. The mother had a history of bringing unsuccessful motions to limit or terminate the father’s access to the youngest daughter and the father had brought a previous contempt application dealing with the issue of access. At this step in the proceedings, the father was bringing another contempt application for the mother’s failure to deal with an order of specified access.
The original order had stated that the younger daughter was to be dropped off with the paternal grandparents on a specific date and the mother had failed to do so. The father had also been without access for over 6 months.
Force a child to go with the parent?
At the contempt motion, the mother attempted to justify the lack of access citing the younger child’s refusal to attend access with the father. She argued that she had done her best to facilitate access but that the younger child persistently refused to see the father.
The motion judge had found that the mother was leaving it up to the daughter to decide whether or not she would attend visits with the father and that sometimes a refusal to visit with the father resulted in a positive consequence.
The motion judge characterized her actions as effectively abdicating “her parental authority on the issue of access.” The judge identified that there were alternate avenues for the mother to use to enforce the daughter to comply with the support order. In the end, the motion judge found the mother in contempt of the order. The mother appealed the decision to the Ontario Court of Appeal.
The Court of Appeal
The Court of Appeal upheld that the mother was in contempt of the order, finding that alternate remedies to a contempt motion wouldn’t work in the situation and there was proof of “deliberate and willful disobedience” of the mother against the access order beyond a reasonable doubt.
In relation to the mother’s assertions that the child did not want to have access time with the father, the Court of Appeal wrote: “Although a child’s wishes, particularly the wishes of a child [the daughter’s] age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child.
As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order…No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can.”
The court decision on if someone can force a child to go with parent
The decision makes it clear that the parent was trying to force a child to go with the parent. The child’s opinion on access time is important as they get older. The opinion of the child will only be used at the time the order is made as part of determining what is in the best interests of the child. It may also be used in determining what type of access should occur. It cannot be relied upon by a parent to deny access after the order has been made. If a parent uses the excuse that the child does not want to go to the other parent’s house for access time, they may be found in contempt of any prior access orders.
The important lesson to take away from this case is that it is expected that parents will not influence the child’s decision through conversations with the child or rewards for refusing to go to access time and that the access order is expected to be promoted by the parent. The decision of whether to attend access or not is not to be left up to the child.
Toronto Family Law Firm
In the event that the child states that they do not want to go, they are to use the same parenting techniques they would use if a child does not want to go to any other obligation. As the motion judge stated in this case: “what does [a parent] do when this child doesn’t want to go to school or doesn’t want to go to the dentist? …Does this child have an allowance?
Does she have a hockey tournament that maybe she’s not allowed to go to if she doesn’t go to see her [other parent] before? Are there things [the parent] could do to force her to go short of the police attending at her house and physically removing her?” This case makes it clear that mere encouragement is not sufficient. A parent must use “stronger forms of persuasion.”
Family Law Attorney Near Me
If your spouse is trying to force a child to go with parent make sure to speak to one of our family law lawyers in the Toronto office of ClearWay Law. Book an initial no-obligation consultation at a discounted rate of only $100 for a hour of the family lawyers time.