Overview and Assessment of Approaches to Access Enforcement: An Update

Processes Relating to Access Enforcement

1) Protecting the Best Interests of the Child

Crafting access enforcement measures that are consistent with the best interests of the child is a challenge. If the access order or agreement is not consistent with the best interests of the child, then enforcing the order will not be either. In some cases, the best interests of the child have been displaced by a focus on the rights of a parent or an assumption that access is always in the best interests of the child. As well, evidence that was not available when the access order was made may now indicate that the order is not in the best interests of the child. In such cases, a variation of the access order rather than enforcement is indicated. Even when the access order or agreement is in the best interests of the child, some enforcement measures will undermine those interests. For example, jailing a custodial parent for contempt of an access order may be harmful to a child whose best interests are served by the ongoing care of the custodial parent.

Determining what access arrangements or enforcement measures are in the best interests of the child requires consideration of all relevant factors, including the views of the child (if the child is capable of expressing views). Researchers emphasize that it is important to listen to children and attempt to see divorce and separation through their eyes. However, even when the views of the child are included in the statutory factors that must be considered when determining the best interests of the child, the legal system regularly excludes children from decisions made about them (Dale, 2014).

One explanation for the exclusion of children from the decision-making process is the procedural rules. Despite the statutory focus on the best interests of thechild and the inclusion of the child’s views as a factor that must be considered, family law procedures primarily empower the parents rather than the child (Semple, 2010).  The parents are the parties, and they may not make efforts to ensure that their children’s views are brought into consideration. Many procedures are in place to determine the views of the children, but for the most part they are not mandatory and are often not called into play.

Bertrand and his colleagues identified various ways in which the child’s views may be ascertained:

  1. Through a report prepared by a court-appointed mental health professional (social worker or psychologist – often called an evaluator or assessor) after a series of interviews with the child. This report may focus solely on the wishes and perceptions of the child, though more commonly it is part of a broader report about the child’s best interests;
  2. Through a report (or affidavit) prepared by a neutral lawyer or mental health professional after a single interview with a child;
  3. Through testimony of a mental health professional who has interviewed the child and is retained by a parent;
  4. Having a lawyer for the child;
  5. Having the child testify in court;
  6. Having an interview of the child by the judge in chambers;
  7. Allowing parties (i.e., parents) to testify about what the child has told them (i.e., hearsay evidence) through their oral testimony (or video/audiotape) or by calling other witnesses (for example, teachers); and
  8. Allowing the child (or parent) to submit a letter, e-mail or videotaped statement. (Bertrand et al, 2012: 1-2)

Bala and his colleagues argue that judicial interviews with the child may be valuable, pointing out that often children feel ignored and that outcomes are generally better if children feel that they have a “voice” in the process. They also found that a significant portion of children would like to meet with the judge, even when other measures have been used to ascertain their views. They suggest that, provided the child wishes it

A child should be able to meet the judge, in addition to having a lawyer, guardian, or evaluation. A primary purpose of such meetings is to let children know that their views and feelings were taken into account, even if not reflected in the final decision. Such meetings may also benefit the judge and other family members, and facilitate dispute resolution. (Bala et al, 2013)

After considering all relevant factors, including the views of the child, the court must determine what access arrangements are in the best interests of the child. In most cases ongoing contact with both parents will be in the best interests of the child, but this is not always the case. While in low-conflict cases, children generally have long-term benefits from having regular and significant involvement with both parents, research suggests that in some high-conflict cases the child’s well-being may actually be enhanced if there is no access (Bala & Bailey, 2004/2005).

Supervised access can provide a safe, neutral and child-focused venue for facilitated visits and changeovers to occur between children and their parents. Supervision of access can alleviate risks that otherwise would prevent ongoing contact between the child and the non-custodial parent. Kelly found that supervised access was most commonly ordered where there was evidence of: domestic violence; child abuse; poor parenting skills; mental illness; risk of abduction; reintroduction of a parent; drug or alcohol abuse; or entrenched conflict between the parents, and that often two or more of these factors were present (Kelly, 2011).

Supervised access is sometimes perceived as a way to maintain the relationship between a child and the non-custodial parent in high-conflict cases. Researchers have found that supervised access may be used inappropriately to maintain access in cases where it is not in the best interests of the child. In such cases there appears to be an undue emphasis on maintaining the parent-child relationship. Birnbaum & Chipeur note that supervised access

is not a substitute for difficult decisions that sometimes need to be made by the court. While legal precedents indicate that access should only be ordered by the court if it actually benefits the child, some judges order supervised access as a compromise when access should be terminated until the non-custodial parent obtains the help he or she requires. It would seem that the maximum contact principle has been equated with the best interests of the child. (Birnbaum & Chipeur, 2010: 93)

Kelly found that the emphasis on maximum contact was particularly strong in relation to access by fathers:

Judges appeared intent on maintaining father/child relationships even in the most desperate of circumstances, often against the wishes of both mother and child. The rationale provided was typically that children do best if they remain in contact with their fathers. While some research tentatively supports this conclusion in relation to low-conflict families, there is little to support the assertion in situations of high conflict or where the father has actually abused the child or mother. (Kelly, 2011: 295)

Access is not always in the best interests of the child, and supervised access should not be ordered as a way to avoid denying access when it is not in the child’s best interests. As Kelly pointed out: “In high-conflict families and families where domestic violence is present, ongoing access between children and violent parents may actually increase the risk of harm to children” (Kelly, 2011: 308).

Some supervised access services also serve a parental education function (Michigan, 1999; Bailey, 1999). Supervised exchange of children may be in the best interests of the child when the exchange is conflictual or when one parent uses exchange as a time to abuse the other (Bala et al, 1998: 35). Courts have also ordered supervised pick-up of children when there has been denial of access, thus providing an opportunity to document instances of wrongful denial on the part of the custodial parent (Pearson & Thoennes, 2000: 124).

2) Early Screening

Early screening of parenting disputes is important to determine the most effective way to deal with the problems. The custodial parent, the access parent or the child may resist access, and different responses are required in each case. As well, the reason for resistance to access must be identified in order to address the problem. A determination must be made as to whether the resistance is justified (for example, when access is refused because the access parent is intoxicated). In addition, assessing the nature of the problem – whether it is general opposition to access or occasional refusals of access – will facilitate identification of appropriate responses.

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.

Researchers point out the importance of early identification of “high conflict” families, arguing that “timely identification of types of conflict would allow for the earliest and most appropriate intervention with families, thereby reducing the associated risks to children” (Birnbaum & Bala, 2010: 413). And without timely identification and intervention, some problems may become intractable. For example, early intervention in cases of parental alienation (where a parent is influencing a child to reject the other parent) is crucial because resistance to access generally becomes increasingly entrenched over time (Fidler & Bala, 2010: 35-36).

The idea of early screening is not new. Back in 1997, Parliament struck the Special Joint Committee on Child Custody and Access to examine the issues relating to custody and access arrangements after separation and divorce, with a special emphasis on the “needs and best interests” of children. After extensive investigations and deliberations, this Committee recommended that there be early identification of high-conflict families, and that such families be streamed into a specialized, expedited process and offered services designed to improve outcomes for their children (Canada, 1998b, Recommendation 32). This recommendation has not been extensively implemented in Canada. The Australian Law Reform Commission also recommended early identification of cases likely to give rise to ongoing problems and allocation of additional resources to these cases, as follows:

  1. a judge who would deal with the case at all stages (to ensure consistency and to eliminate the need for new judges to learn the history of the case);
  2. separate legal representation for the children (to ensure that the children’s rights and interests are represented);
  3. an assessment (to ensure that an expert opinion based on objective information is available);
  4. counselling for parents and children; and
  5. mediation services for appropriate cases (ALRC, 1995b: chapter 3).

In Australia, early screening to identify cases involving particular risks has been integrated into the court process, and there are ongoing efforts to improve the process (Australia June 2015).

Early screening is also important for determining the appropriate terms of agreements and court orders. For cases in which ongoing access disputes are likely to arise, an access order that is specific about times and dates for access should be made. Enforcement actions are not possible unless the access order is specific (Michigan, 1998b: 6). A specific access order may prevent or alleviate disputes between parents who are not able to work out “reasonable” terms of access, and will allow immediate enforcement when the terms of the order are not followed.

Early screening also enables tailoring of services to meet the needs of the particular family. In cases of access denial or failure to exercise access, high-conflict families will more likely require full-scale evaluations and other services. For low-conflict families, where there are no issues of abuse or parental alienation, brief evaluations that focus on solutions and parental responsibilities may be effective. Thus, early identification can lead to a more cost-efficient and effective evaluation model (Birnbaum & Radovanovic, 1999).

Increasingly, Canadian courts are using the notion of “high conflict” families but not in a consistent fashion – it is important for the legal system and service providers to adopt clearer and more specific terms to identify and differentiate among the various types of high-conflict cases. Not all cases that are labeled “high conflict” require the same interventions. Researchers argue

By providing a common language associated with high conflict, there would be a reduction in the extent to which multiple services (adult and children’s mental health, child welfare, education, medical, police involvement and legal) are provided to these families without results. Further, having an empirically validated instrument that identifies different levels of conflict would assist mental health practitioners in targeting specific interventions thereby reducing the stress on children and families, and ultimately, would assist the courts in early case management of these families. (Birnbaum & Bala, 2010: 413).

Consistent use of a validated instrument to screen cases in order to identify the particular interventions appropriate would likely lead to a more cost-efficient and effective approach to access problems.

3) Preventive and Alternative Measures

Apart from judicial involvement in settlement through measures such as case management (which will not be addressed in this report), increasingly, governments are offering parental education programs and services to assist parents in resolving conflicts. These services are particularly important to the increasing number of unrepresented litigants in family courts. About 40-57% of litigants in court for family law matters are unrepresented (Canada, 2016).

Parental education programs, which are aimed at improving outcomes for children and at decreasing ongoing conflict and litigation, are now available across Canada. Some of these programs are aimed at children as well as parents. Most programs in Canada are generic and not aimed at high-conflict situations, but some are focused on high-conflict cases. Alberta, for example, provides a parental education course that can be taken online or in person. Information about the course and links are available at Parenting After Separation (PAS) course - Overview. The course is required for those filing for divorce or when ordered by the court. Topics covered include the following:

  1. building relationships;
  2. how separation affects parents;
  3. how separation affects children;
  4. communication skills;
  5. legal issues;
  6. alternative dispute resolution; and
  7. parenting plans.

Those who have completed the parental education course may voluntarily or be ordered by the court to take the parental education course for families in high conflict. Each party takes the course separately. The topics covered include the following:

  1. parental involvement and disengagement techniques;
  2. parenting plans for high-conflict families;
  3. anger, abuse, power and control issues;
  4. child development and the needs of children; and
  5. renegotiating boundaries.

McIsaac and Finn found some positive results from a parental education program aimed at high-conflict families, but cautioned that it “is not a panacea but is one piece in an array of interventions designed to protect children from the very negative consequences of unresolved conflict and hostility between parents” (McIsaac & Finn, 1999: 81). Fuhrman and colleagues, however, advise against limiting education on domestic violence to families in which it is present because of screening difficulties and the lack of specialized programs. These authors recommend that all parental education programs be designed so that they are appropriate for parents who have had an abusive relationship (Fuhrman et al, 1999).

Another method of preventing or dealing with access enforcement disputes is mediation. When there has not been domestic violence and parents are able to work co-operatively, mediation may facilitate resolution of access disputes and prevent enforcement problems or be helpful when working out enforcement problems. Mediation is generally inappropriate when there has been a history of domestic violence (Bala et al., 1998: 72). Therefore, there should be adequate safeguards to prevent inappropriate use of mediation when there has been domestic violence. Many researchers take the view that mandatory mediation is not appropriate for family law cases (Cossman & Myktiuk, 1998: 67-70). Mediation may be the most effective response to some high-conflict cases with access problems, but the decision about whether to participate must be voluntary (Bala & Bailey, 2004/2005). Kruk as well emphasizes the importance of parental education and mediation in addressing access disputes, but argues that these should be voluntary. He recommends that enforcement of orders proceed only after mediation efforts have been unsuccessful or support services refused. He further says: “A mandatory introduction to mediation session should be considered only in cases where violence and abuse are not a factor” (Kruk, 2008: 77).