Overview and Assessment of Approaches to Access Enforcement: An Update

Executive Summary

In most cases, access arrangements are generally complied with and parents are satisfied with the arrangements. Many custodial parents deny access occasionally for reasons such as illness of the child. As well, many non-custodial parents cancel access visits occasionally for various reasons. The cases of more concern are those involving ongoing resistance to and denial of access, those where there is a high level of conflict between the parents and those where the non-custodial parents fail to exercise access or to maintain a positive relationship with their children.

In considering the enforcement of access orders, the focus must always be on the best interests of the child. The views of the child are a relevant consideration in determining the best interests of the child, provided the child is capable of expressing views. Canadian statutes generally provide that orders regarding access should be in the best interests of the child and that the views of the child should be considered in determining the best interests of the child. In practice, however, some courts have applied a strong presumption that access is in the best interests of the child, with the result that some orders may be made that do not further the child’s best interests. Researchers have found that courts sometimes order that access be supervised in order to address concerns such as abusive behavior, but that supervision orders do not always address the concerns or ensure protection of the child’s best interests. An approach more consistent with statutes, leading case law and Canada’s obligations under the Convention on the Rights of the Child is to determine what is in the best interests of each child without the application of presumptions and to give effect to research indicating that in some cases no access is in the best interests of the child. Another issue that is revealed in practice is that the views of the child are not always brought before the court. Additional efforts could be made to ensure that capable children have an opportunity to have their views considered.

Courts generally attempt to respond to enforcement problems that arise after an order is made, but at that stage it may be too late to successfully deal with the problems underlying the denial of access. Programs that identify the cases that are likely to involve ongoing enforcement problems before the initial access order is made and that include preventive measures to avoid problems are more likely to be effective in protecting the interests of children. Early screening and provision of services appropriate to the nature of the problems identified results in more efficient and cost-effective dispute resolution. None of the provinces or territories provide by statute or otherwise for screening of all cases and provision of appropriate services, although some screening is carried out in some parts of the country. States such as Connecticut that have introduced systematic screening and provision of appropriate services have found that this approach increases rates of settlement, decreases rates of returning to court and enhances the efficiency and cost-effectiveness of the family court system. A similar approach could be adopted in Canada.

Preventive measures and services aimed at non-adversarial resolution of disputes are highly important. In recent years, provinces and territories have expanded services to facilitate conflict prevention and resolution of disputes. Parental education programs, aimed at informing the parents (and sometimes the children) about post-separation parenting arrangements that promote the best interests of the child, are provided across Canada. Many of these programs are available online, thereby facilitating access. The parental education programs may be generic in nature, or be tailored to parents with high levels of conflict. All provinces and territories provide for mediation and assessments, and some provide such services without charge in some circumstances. In addition, supervised access services are available in all provinces and territories, although these services may not be available in all communities. As well, provinces and territories now play an expanded role in providing legal information to parties. They provide free online access to statutes, regulations and information about court procedures. This is particularly important because of the large increase in unrepresented litigants in family court. Ongoing efforts to improve and enhance parental education, mediation and assessment services, supervised access services and the provision of online information will make successful resolution and management of access disputes more likely.

Children have a right to maintain contact with the non-custodial parent, unless access is not in their best interests. Therefore, adequate remedies for access denial and for failure to exercise access are necessary to protect the rights and interests of children. All provinces and territories have statutory measures to sanction access denial. Only some have statutory sanctions for failure to exercise access. Those that do not have such sanctions may want to consider amendments to add them.

The distinctive nature of access orders influences the choice of enforcement measure. Denial of access and refusal to exercise access are different from refusal to pay a judgment debt, and different interventions may be appropriate depending on the nature of the case. The different circumstances in which access denial and failure to exercise access arise call for different legal interventions. Generally, the best interests of the child standard will support an incremental application of enforcement measures, under which alternative approaches are stressed and compensatory remedies are used initially. When access denial or failure to exercise access persists, remedies become more coercive and punitive. The use of coercive or punitive measures is problematic when there are good reasons for non-compliance. In such cases, it may be in the best interests of the child to vary the custody and access order. Coercive and punitive measures often undermine the best interests of the child and are therefore considered appropriate only after other measures have failed.

Australia, the UK and the US have legal cultures and socio-economic conditions that are similar to Canada’s. Canadian law and policy-makers can learn from or use as models the laws and processes used in these countries to deal with access enforcement. Australia and Connecticut are particularly helpful models in regard to early screening and provision of services. Australia has long recognized the need for early identification of particularly problematic parenting issues in order to provide appropriate services. Recent efforts there have focused on improving early identification of serious problems at an early stage. As well, Australia encourages settlement of access disputes and funds a range of services to assist families. In regard to supervised access, Australia’s guidelines to enhance the relationship between the family courts and the supervised access service may be a useful model for Canada. These guidelines outline factors to consider before ordering supervised access, and they may prevent supervised orders being made or continuing when they are not in the best interests of the child. Connecticut has an early screening program and provides differentiated services appropriate to the nature of the access dispute. The evaluation of Connecticut’s program indicates that it significantly improves outcomes. Connecticut provides a good model for Canadian law and policy-makers. Recent efforts in England and Wales to improve access enforcement by introducing new statutory sanctions points to the limits of punitive measures and the importance of preventive and alternative measures. England’s experience indicates that punitive measures may be appropriate primarily in the relatively small number of cases where the custodial parent is hostile to access. For high-conflict cases, cases involving safety concerns, and those involving older children who are dissatisfied with the access arrangements, more emphasis should be given to problem-solving and to facilitating a workable plan for the future. Michigan provides a model of a state that provides full-service government enforcement of access orders. Because the state assumes the responsibility of enforcing access, much of the burden in lifted from parents. For provinces and territories interested in providing an access-enforcement service, Michigan provides a good model.