Overview and Assessment of Approaches to Access Enforcement: An Update

Introduction

1) Terminology

Although the language of post-separation parenting has changed over the years, the traditional language is still used in many legal instruments and by parties and judges, and it will be used in this report. It must be noted, however, that the change in language is in part explained by the increase in shared parenting arrangements, which makes the traditional terms “custody” and “access” less appropriate. It is less common now for one parent to have all the incidents of custody, with the other parent having only a right to visit the child. This report uses the term “access” to include “contact,” “parenting time,” visitation, etc. “Access parent” is used to refer to a parent who has rights of access in this broad sense. “Custodial parent” is used to refer to the other parent, who is often (though not necessarily) the primary residential parent.

2) Purpose

In 2001, the Department of Justice Canada published Overview and Assessment of Approaches to Access Enforcement. The current project does not repeat but updates the 2001 report. There will necessarily be some repetition, but the focus here will be on changes in legislation and cases decided since 2001 and on the many new and expanded services. The purpose is to identify current best practices and to identify areas where improvements can be made. The most important developments since 2001 have been in regard to early screening and provision of services and a new emphasis on preventive and alternative measures.

3) Method

Information for this report was collected through a review of the literature, Canadian statutes and Canadian case law. In addition, the author contacted government officials and others involved in access enforcement across Canada for information and comment.

4) Overview

This report looks at the problem of access enforcement in the context of disputes between parents. Enforcement of access in the context of child welfare or adoption cases will not be considered, and special issues raised by access orders in favour of non-parents are not addressed.

The report first reviews the literature and discusses processes relating to access enforcement. The identified processes are: 1) ensuring that access arrangements and access enforcement measures are in the best interests of the child; 2) ensuring that cases are evaluated to determine the appropriate interventions; and 3) ensuring that effective preventive and alternative measures are available to resolve conflicts.

The report then examines Canadian statutes and case law, assessing the extent to which they provide for the identified processes and whether new approaches are needed.  As well, Canadian access enforcement services that are proving most effective are described. Some laws and programs from outside of Canada are considered.

The report concludes with a discussion of how access enforcement in Canada could better address the identified challenges.

The overarching theme of this report is the importance of adopting a child-centred approach. This is in keeping with nationally and internationally accepted principles.