Overview and Assessment of Approaches to Access Enforcement: An Update

Canadian Access Enforcement Law

1) Best Interests of the Child

Canada is a party to the UN Convention on the Rights of the Child. This Convention requires that decisions about access be in the best interests of the child. In order to protect the best interests of the child, the Convention also requires that the views of children be given due weight. As well, the Convention requires that children be protected from all forms of abuse and neglect. Many other factors are relevant to the best interests of the child, but this report will focus on the views of the child and protection of the child from abuse and neglect because these are factors that require additional attention.

Article 3 of the Convention on the Rights of the Child provides: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

On the issue of access, the Convention includes the following provisions:

Article 9(1): States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

Article 9(3): States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

Under article 9(3), the best interests principle must not only be a primary consideration in access decisions but also must govern the result. Thus, under the Convention, a child has the right to maintain contact with the non-custodial parent unless contact is not in the best interests of the child. Parents have a right and duty to maintain contact with their children unless contact is not in the best interests of the child. Governments have a responsibility to respect the child’s right of access.

In regard to the views of the child, the Convention states

Article 12(1): States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

Article 12(2): For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Thus, children who are capable of forming views have a right to be heard on questions relating to access. They must be provided with an opportunity to be heard directly or through representation.

In regard to abuse and neglect, the Convention provides

Article 19(1): States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Thus, in access and access enforcement decisions, children have a right to arrangements and measures that do not expose them to any form of abuse or neglect.

A necessary first step for improving access enforcement is to ensure that access orders meet the best interests of the child standard, with the views of the child and the protection of the child from abuse and neglect duly considered. Access orders that do not meet this standard are more likely to give rise to enforcement problems. A custodial parent is less likely to comply with an access order that is not in the best interests of the child. A child is more likely to resist access arrangements that have been made without consideration of the child’s views or that expose the child to abuse or neglect.

As indicated in Appendix A, every Canadian jurisdiction requires that access orders be based on the best interests of the child. Alberta, British Columbia, New Brunswick, Newfoundland, the Northwest Territories, Nunavut, Ontario, Quebec, Saskatchewan and Yukon provide a list of factors to consider when determining what access order is in the best interests of the child. The federal government in the Divorce Act, and the laws in British Columbia, Manitoba, Newfoundland, the Northwest Territories, Nunavut, Ontario, Saskatchewan and Yukon specifically provide that the conduct of a parent should not be considered unless it affects the ability to parent.

All of the provinces and territories include the views of the child as a statutory factor to consider in determining the best interests of the child. The Divorce Act does not mention the views of the child.

The statutes of Alberta, British Columbia, Newfoundland, the Northwest Territories, Nunavut, Nova Scotia and Ontario expressly require that a court hearing an access application take family violence into account when determining what is in the best interests of the child.

As indicated in Appendix A, 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.

A review of Canadian case law reveals that accepted principles are not always applied in practice. A guiding principle is that access is a right of the child, not the parent. In Frame v Smith, Wilson J (dissenting but not on this point) said “[t]he access right has become the child’s right, not the parents’ right.”Footnote 1 Many judges have since adopted this principle, explicitly stating that access is the right of the child.Footnote 2

Another guiding principle is that access arrangements should be determined in light of the best interests of the particular child with no presumptions for or against particular access arrangements. As the Alberta Court of Appeal said in 2008 “there are no longer any presumptions or default positions that regulate decisions as to custody and access.”Footnote 3

Despite the lack of presumptions, some judges continue to apply a presumption in favour of access. An Ontario Superior Court judge asserted: “There is a presumption that regular access by a non-custodial parent is in the best interests of children.”Footnote 4 An Alberta Provincial Court judge made the following comment:

In attempting to determine what is in the child’s best interest, there is a presumption that regular access is in the child’s best interest. The right of the child to know and maintain an attachment to the non-custodial parent is, in fact, considered a fundamental right of the child. As a result, incredible deference is given to maintaining the parent-child relationship, but this presumption can be rebutted. A parent does not have an absolute right to access. Therefore, to deny access to a parent is a remedy of last resort.Footnote 5

If access is treated as a presumptive right, attention to the best interests of the child may be displaced by the rights and interests of the parents or by consideration as to whether there is evidence that access would be harmful. The principle that a child has a right to “as much contact with each spouse as is consistent with the best interests of the child” is not a presumption that access is in the best interests of the child.Footnote 6 While in low-conflict families, access is generally in the best interests of the child, research shows that in some high-conflict cases no access is in the best interests of the child (Bala & Bailey, 2004/2005). Under Canadian law, each child is entitled to an individualized assessment based on the individual child’s circumstances and without the application of presumptions.

The Ontario Court of Appeal has stressed that “courts are to consider only the children’s best interests when making custody decisions” and that a “court cannot award custody to one parent to punish the other for non-compliance with court orders.”Footnote 7

2) Early Screening

Some screening and triage services are available in some provinces. One example is provided by the Office of the Children’s lawyer, part of Ontario’s Ministry of the Attorney General, which provides evaluation, representation and intervention services on behalf of the children. The Office of the Children’s Lawyer uses an intake form for custody and access cases. Information is collected about violence and the presence of protective orders, criminal charges, mental health and substance abuse issues, as well as information about legal proceedings and the kinds of court services previously used. Use of the intake form facilitates the determination about the best way to deal with the case (Salem et al, 2007: 756; Ontario, 2016).

As yet, no province or territory has made statutory provision for early identification of the particular issues raised in access disputes or the most appropriate interventions and services given the nature of the conflict.

Most provinces and territories have legislation or regulations dealing with court-ordered assessments in custody and access cases. There is no provision for assessments in the federal Divorce Act, but courts order assessments in divorce proceedings using provincial or territorial legislation.Footnote 8

3) Preventive and Alternative Measures

a) Parental Education

Parental education programs are now widely available. As indicated in Appendix A, in some provinces completion of a parental education program is mandatory, and in others courts may order parties to attend a program.

Even in the absence of statutory or regulatory authority, judges sometimes order or strongly recommend that parties attend such programs. For example, in a high-conflict case involving domestic violence, the Supreme Court of Prince Edward Island, after awarding the parents joint custody of the children, ordered the father to take anger management treatment and both parents to take a parental education program.Footnote 9 The Supreme Court of the Northwest Territories has recommended that parties participate in a parental education program, commenting:

what would serve the best interests of these children is for both parents to have more awareness of how their actions (and by that I mean both how they act when the children are around and how they treat, and speak to, the children) affect their children and to do everything they can to keep their communications with each other respectful and non-confrontational.  If the Parent Education Pilot Program that has, in the past, been offered by the Court Services Division of the Department of Justice in conjunction with the Legal Services Board is available, it may benefit both Mr. and Mrs. Ramsay to participate in it.Footnote 10

b) Mediation

Most Canadian jurisdictions provide for court-ordered mediation, and some provide free or government-subsidized mediation. As indicated in Appendix A, Quebec requires parties to attend an information session on mediation prior to the hearing of any contested custody application. Other provinces provide that courts may order mediation. 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 and some provincial statues require lawyers to discuss with their clients on the advisability of negotiating custody or access matters and to tell them about mediation facilities that might be able to help them negotiate those matters.

c) Supervised Access

Supervision of access can alleviate risks that otherwise would prevent ongoing contact between the child and the non-custodial parent. It is generally ordered when there has been domestic violence, there is a risk of abduction, there is no existing relationship between the child and the non-custodial parent, or the non-custodial parent suffers mental illness, abuses substances, or lacks parenting skills.Footnote 11

The Special Joint Committee recommended the Divorce Act be amended to make explicit provision for supervised access orders (Canada, 1998b: Recommendation 35), but this amendment has not been made. As indicated in Appendix A, some provincial statues explicitly provide that supervised access may be ordered, and some provincial statutes explicitly provide that supervised access may be ordered in cases of wrongful denial of access or wrongful failure to exercise access. Even in the absence of such authority, courts have ordered supervised access under their general statutory power to impose terms and conditions on custody and access orders.Footnote 12

Supervision may be the only option if the relationship between a child and a non-custodial parent is to continue. This point was made in Kozachok v Mangaw, where the court made the following observation:

The supervised access centre is an excellent access option for this family. In this situation of high conflict, high hostility between the parties, the centre and its staff stand between the parents and permit the monitored, orderly transfer of the child or children to the non-custodial parent. At this point, without a neutral safe access intermediary, I question whether access would be feasible or beneficial to the children.Footnote 13

Courts have recognized, however, that supervision may not address all concerns. In McEown v Parks, the court observed that problems relating to access visits may continue even if supervision is ordered:

Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the child remains hostile to the father during the visits; the child reacts badly after visits; or, where the access parent continually misses visits or is inappropriate during the access then termination must be considered.Footnote 14

In some cases, the court must decide between supervised access and no access at all. For example, the Yukon Supreme Court rejected a father’s request for interim supervised access and ordered that there be no access where there was evidence that the father had abused the mother and child.Footnote 15 The Ontario Superior Court denied a mother access, even supervised access, noting that supervised access facilities are not equipped to deal with the mother’s actions, which included

drinking bleach in the son’s immediate vicinity, making up criminal charges against the father and organizing a criminal conspiracy to abduct the son.  Supervised access centres do not offer a police presence or other measures aimed at preventing criminal action by a parent and are not designed to cope with eventualities such as a mother prone to such behaviour as drinking bleach.Footnote 16

4) Remedies for Access Denial

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 are necessary to protect the rights and interests of children. The issue of access denial may arise when a parent is seeking an initial custody or access order, a variation of custody or access, an order to enforce access, or an order for or variation of support.

The distinctive nature of access orders influences the choice of enforcement measure. For example, denial of access is different from refusal to pay a judgment debt, and different interventions may be appropriate depending on the nature of the case. Some cases of access denial involve custodial parents in conflictual relationships who are hostile to access from the outset and try to thwart it, sometimes using unproven allegations of violence, sexual abuse of the child or other problematic behaviour. As noted above, these high-conflict and “difficult” cases should be identified at the outset and special measures used to deal with them. In other cases, access is denied on a particular occasion because of a child’s illness or some other temporary situation. Relatively minor grievances, such as failure to return the child’s clothes or medication after an access visit, might precipitate access denial. In some cases, children may not want to continue with the same access schedule because of a conflict with their activities. In such cases, the parents can often solve the dispute relatively easily and work out a new access arrangement, when appropriate, perhaps with some assistance from a mediator or other person.

The different circumstances in which access denial arises 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 persists, remedies become more coercive and punitive. The use of coercive or punitive measures is problematic when there are good reasons for non-compliance (for example, abuse or hostility by the non-custodial parent that causes the child to fear and resist visits). In such cases, it may be in the best interests of the child to vary the order to reduce or eliminate access; it is open to custodial parents to seek such a variation.

a) Justified vs Wrongful Access Denial

Canadian courts have ruled that custodial parents have an obligation to promote compliance with custody and access orders and cannot simply leave the questions of custody and access up to the child. The obligation of a parent to actively promote compliance continues, even as the child gets older. The custodial parent must not only make the child available for access and encourage the child to comply but must require that access occur and actively facilitate it.Footnote 17

Despite the obligation to actively promote and facilitate access, the custodial parent will be justified in denying access in some circumstances. Access orders involve ongoing relationships in which flexibility is required from all parties. Although access may generally be in the child’s best interests, on some occasions it may not be. Denial of access in such cases, for example, when the child is ill or the non-custodial parent is intoxicated, is justified. As indicated in Appendix A, some provincial statutes explicitly address the issue of justified access denial and provide for sanctions only if the denial is wrongful.

Although other Canadian jurisdictions do not expressly deal with justified access denial in their statutes, courts have discretion to excuse denial of access in some circumstances, as discussed in Frame v Smith by Wilson J:

At times, a perfectly legitimate exercise by the custodial parent of his or her custodial rights or custodial obligations will result in an individual denial of access to the other parent. It is not the role of the court to review this sort of exercise of discretion with respect to the child. It is only when a sustained course of conduct designed to destroy the relationship is being engaged in that there is a breach of the duty. If and when a custodial parent comes to believe that continued access to the child by the other parent is not in the child’s interests or is harmful to the child, the proper course for the custodial parent to follow is not to engage in ongoing wilful violations of the access order but to apply to the court to vary or rescind it.Footnote 18

Some cases suggest that denial of court-ordered access may be justified when the custodial parent reasonably and honestly believes that there is a risk of danger to the child and takes immediate court action to terminate or restrict access. In Salloum v Salloum, Viet J said: “Where the court can find that a parent is disobeying a court order out of honest concern for the welfare of the children, a court will be [loath] to stigmatize and sanction the parent’s behaviour. One test for the honest concern of the offending parent is whether that parent has promptly moved the court to modify the existing custody or access order.”Footnote 19 It should be noted, however, that access denial may be appropriate even when circumstances justifying a variation of the custody or access order exist. The access order may still be in the best interests of the child, but on a particular occasion denial of access was appropriate.

A statutory guideline such as that provided in Newfoundland’s Children’s Law Act is helpful. The Newfoundland statute makes clear that a remedy is available only when a denial of access is “wrongful,” and provides a definition of this term. Newfoundland’s statute gives parents a clear statement of their rights and responsibilities related to the exercise of access. The custodial parent knows, for example, that when the non-custodial parent is more than an hour late, they need not stand by with the child, ready, willing and able to provide access. The non-custodial parent knows, for example, that when they arrive intoxicated, access will be denied. While there will continue to be disagreements on such issues as whether there were “reasonable grounds” to believe that the child would suffer harm if access were exercised, this provision adds needed clarity to the issue of justified access denial. In addition, this provision expands the circumstances under which access denial will be justified to include more than immediate risk of harm to the child. This is appropriate because it allows the court to focus on the best interests of the child not simply the risk of harm to the child, and because it clarifies that the custodial parent will not be found in contempt when, for example, he or she has not continued to be ready to provide access after repeated failures by the non-custodial parent to exercise access.

All provinces and territories should enact a provision that defines when access denial is wrongful, and should provide remedies for access denial only when it is wrongful.

b) Compensatory Access and Compensation for Expenses

Compensatory access, where an access parent is given additional time with the child to make up for denied access visits, and compensation for expenses incurred as a result of access denial is explicitly provided for in some provincial and territorial statutes, as indicated in Appendix A.

Even in the absence of explicit statutory authority, courts have ordered compensatory access under their general power to make or vary custody and access orders under provincial or territorial legislation, under the federal Divorce Act or without reference to any specific statutory authority.Footnote 20

Compensatory access should be explicitly available as an immediate remedy when a wrongful denial of access is proven on the balance of probabilities, subject to the best interests of the child. Although civil enforcement of access orders is primarily a matter of provincial responsibility, the Divorce Act, as well as all provincial and territorial legislation, should explicitly authorize courts to order compensatory access. This is because such an order may be appropriate when determining access under the Divorce Act, when access as previously agreed to or ordered has been wrongfully denied.

In the 1987 Frame v Smith decision, the Supreme Court of Canada ruled that tort actions for denial of access are not available in Canada.Footnote 21 The Alberta Court of Appeal similarly held that a non-custodial father had no common law cause of action against the custodial mother for interfering with his access rights.Footnote 22 The Ontario Superior Court confirmed that Frame v Smith remains the leading authority on this issue and dismissed the action of a father who had been denied access and who sought damages for emotional distress for the tort of conspiracy, intentional infliction of mental suffering, unlawful interference with another’s relationship, damages arising from breach of a court order, and breach of fiduciary duty.Footnote 23 Some commentators have supported the use of tort actions for access denial (Geismann, 1993: 606-608), but there does not seem to be any evidence that they are effective in re-establishing contact between the child and the non-custodial parent or in supporting the rights and bests interests of the child.

A more effective means of enforcing access while, at the same time, compensating the non-custodial parent is to allow non-custodial parents to bring summary claims for expenses incurred as a result of a wrongful access denial. As indicated in Appendix A, compensation for an expense relating to access denial is explicitly available under the statutes of Alberta, BC, Manitoba, Newfoundland, the Northwest Territories, Nunavut and Saskatchewan.

Courts should be given the explicit jurisdiction to award compensation in summary proceedings for expenses incurred in attempting to obtain access or for wasted expenses (for example the cost of unused baseball tickets purchased for the access visit) when wrongful denial of access is proven on the balance of probabilities.

c) Apprehension Orders

When unjustified access denial persists after preventive, alternative and compensatory measures have been taken, more coercive and punitive measures may be called for to protect the best interests of the child.

As indicated in Appendix A, many provinces and territories explicitly authorize courts to order apprehension by police in cases of wrongful access denial. Although an apprehension order is an intrusive and potentially frightening method of enforcing access orders, such an order may be appropriate in some circumstances, when other methods have failed. When unjustified access denial persists after the court has ordered persuasive, educational and compensatory measures, the child’s interest in maintaining a relationship with the non-custodial parent may outweigh the risks involved in using this coercive measure in some cases. Orders for apprehension of a child by a law enforcement officer are made only as a last resort. One judge commented

Courts must make such orders sparingly and in the most exceptional circumstances.  It is an order that can only be made once a court is satisfied that a party is unlawfully withholding a child from a person entitled to custody of or access to the child.  It is a finding that can be based on either a single incident of withholding or on a pattern of withholding even where that pattern has been interrupted by some resumed access … Ideally, the making of the order should be effective enough to persuade the wrongdoer to co-operate. However, that is not always the case and the aggrieved party must call upon the police.Footnote 24

Law enforcement officers have expressed concerns about enforcing access orders.Footnote 25 It has been pointed out that notice of an application for an apprehension order should be given to any third parties, including law enforcement officers, who may be granted rights or have obligations imposed on them. Such notice “can act as a safeguard in cases where, if the court had information in the hands of the peace officers, police departments and/or child protection agencies, there might be concerns about granting an order...” (MacPhail, 1999: 14). In Allen v Grenier, the police moved to set aside a police apprehension order obtained by the non-custodial father, arguing that “the order contained insufficient information for enforcement purposes, that it did not specify particular police measures to be used, that it lacked an expiry date, and that it was a drain on resources.” The court ruled that when a police officer is directed to apprehend a child, the officer must make reasonable efforts to carry out the order or, when the order requires explanation, the officer must immediately bring a motion before the court for directions and then act on those directions. The court rejected the argument relating to resources on the basis of the statutory authority to make an apprehension order.Footnote 26 The case points to the need for clear access and apprehension orders. Standardized orders clearly setting out the necessary information alleviate problems. The case also suggests that there is a need for adequate funding for officers to receive training and be available for apprehension of children who are being wrongfully withheld.

Vince Westwick, representing the Canadian Association of Chiefs of Police, testified before the Special Joint Committee about “doorstep problems” (i.e. difficulties that arise when an officer tries to resolve a volatile access dispute situation at the doorstep). To avoid disputes about the meaning of orders, he requested that access orders be clarified and written in non-legal language with the dates of access clearly spelled out. As well, he recommended that there be legislative provision for professionals and police to have access to the complete file relating to the case off-hours (Canada, 1998b).

Courts increasingly have expressed concern about apprehension orders. One judge made the comment: “When parties involve police in their access disputes, they might as well climb onto the roof of their house, straddle the peak, and, with outreached arms, proclaim to the heavens that they have failed as parents and as human beings.”Footnote 27 The issue of police apprehension was extensively review in Patterson v Powell.Footnote 28 In that case, the judge refused to “rubber stamp” the standard police apprehension order, in part because no evidence had been submitted as to how such an order would serve the best interests of the child. The judge asserted that “courts have a responsibility to anticipate problems and build-in dispute resolution mechanisms – rather than hand the mess over to police to sort it out” and made the important point that “[h]igh conflict files need to be identified and given special attention.” Footnote 29

d) Contempt Proceedings

The Criminal Code, s 127(1) imposes a penalty for criminal contempt “unless a punishment or other mode of proceeding is expressly provided by law.” In R v Clement, the Supreme Court of Canada ruled that section 127(1) could be applied when court orders have not been obeyed, and that the inherent power of a superior court to punish contempt does not constitute another “mode of proceeding” that was “expressly provided by law,” so as to negate the availability of a criminal contempt charge.Footnote 30 The Supreme Court said that section 127(1) was “available as the basis for a charge for disobedience of a lawful court whenever statute law (including regulation) does not expressly provide a punishment or penalty or other mode of proceeding, and not otherwise.”Footnote 31 The Supreme Court of Canada confirmed this approach in 2012, and ruled that procedural rules applicable to contempt proceedings are insufficient to trigger the exception in s 127(1).Footnote 32

If punishment for contempt of an order is provided for by statute, the exception in the Criminal Code, s 127(1) is triggered.Footnote 33 The legislation in many provinces expressly provides for punishment for contempt of access orders, as detailed in Appendix A. When access orders are obtained from courts whose jurisdiction derives from provincial or territorial legislation that expressly provides for punishment for contempt, a charge under s 127 of the Criminal Code is unavailable (Wilton & Miyauchi, 1989: 2-25, 2-26). For example, a charge under s 127 could not be laid in Ontario for contempt of an access order made by the Ontario Court of Justice because s 38 of the Children’s Law Reform Act expressly provides a penalty. However, a charge under s 127 might be available for non-compliance with an access order made by the Superior Court of Justice under the Divorce Act.

Because the civil contempt remedy is a quasi-criminal remedy, punishable by fine or imprisonment, the standard of proof is beyond a reasonable doubt.Footnote 34 Courts may be reluctant to punish a custodial parent by fine or imprisonment when it is clear that such sanctions will not address the underlying problems and that counselling is needed.Footnote 35

None of the statutes or regulations addressing the court’s power to punish for contempt requires that the best interests of the child be a primary consideration. Nevertheless, many courts emphasize the need for caution, in part because of concerns about the interests of the child. The Ontario Superior Court noted that

Contempt proceedings involving alleged breaches of orders relating to children raise unique challenges for judges. …The courts have struggled in the context of contempt proceedings relating to custody and access orders to achieve a balance between the importance of enforcing court orders and encouraging contact with both parents on the one hand, and considerations respecting the wishes of children and the need to ensure their safety and well-being on the other hand.Footnote 36

Because of concerns about the interests of the child, courts only rarely fine or imprison a custodial parent for contempt. Courts have refused to order fines for contempt when this would undermine the best interests of the child.Footnote 37 Punishment may increase animosity between the parents and exacerbate access disputes (McLeod, 1987: 458). Punishment for contempt should remain an option but be imposed only as a last resort, after persuasive and compensatory methods have failed, and not when the punishment would undermine rather than protect the child’s interests.Footnote 38 The Ontario Superior Court made the point that

For contempt proceedings to be an effective deterrent, however, a fine or imprisonment should be imposed for persistent non-compliance, subject to the best interests of the child. Despite the need for caution in resorting to the contempt remedy, contempt nonetheless remains a critically important tool in the judicial toolbox in family law litigation in appropriate circumstances, as a means of reinforcing that compliance with a court order is “neither an option nor a bargaining chip.”Footnote 39

e) Suspension of Child Support and Variation of Custody

Two methods of access enforcement that arguably violate the best interests and the rights of the child are suspension of child support and variation of custody.

No provincial or territorial statutes explicitly authorize courts to suspend child support to enforce an access order. However, some courts have suspended child support payments pending resumption of access.Footnote 40 The Appeal Division of the Supreme Court of Prince Edward Island stated that cancellation of child support was a measure the court could take if a custodial parent failed to adequately facilitate access.Footnote 41 Most courts, however, have rejected this approach, including British Columbia’s Court of Appeal, which adopted the following reasoning in Lee v Lee:

I do not consider that even this custodial parent’s reprehensible conduct, in pursuing her personal objective, contrary to the best interests of the child, justifies a diminution of the responsibility of the non-custodial parent for the proper maintenance of the child of the marriage. Accordingly, in my view, the misconduct of the custodial parent does not provide a proper reason for directing that the non-custodial parent pay less than the appropriate amount of maintenance for his child.Footnote 42

A judge of the Ontario Court of Justice elaborated on this point, saying:

In the absence of binding authority, I am unable to accede to the proposition advanced by some courts that the child should be penalized for the improper conduct of his or her custodial parent.  Although it is doubtful that any court in Canada would make an order that would have the effect of depriving a child of the most basic necessities of life — food, shelter and clothing — it takes much more than those basic necessities to enable a child to thrive and to fully develop to his or her potential.  The soul requires nourishment beyond simply three squares a day.  And by making orders for reduced child support owing to the improper conduct of a parent, no matter how well-intentioned the court may be, no matter how well-grounded in “fairness” that order may sound, it is the child who will bear much of the brunt of the diminished child support.Footnote 43

Suspension of child support is inconsistent with the best interests of the child principle and should not be ordered as a remedy for wrongful access denial (at the same time, suspension of access should not be ordered as a remedy for failure to pay child support). It results in a violation of the child’s right to access and to support, and implies that the custodial parent may bargain away the child’s rights in order to purchase freedom from an ex-spouse, that a parent’s right to be let alone outweighs the child’s rights. The Supreme Court of Canada has made clear that “child maintenance, like access, is the right of the child.”Footnote 44 If financial sanctions are deemed appropriate for wrongful denial of access, the court should impose a fine for contempt or order the custodial parent to give security for performance of the obligation to provide access rather than allow the custodial parent, in effect, to bargain away the child’s right to support.

In regard to variation of custody, only Saskatchewan’s statute expressly provides that variation is a remedy for wrongful access denial. The Children’s Law Act expressly 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.” The reference to the best interests of the child is important. Transfer of custody may be appropriate in the circumstances, but should never be ordered as a punishment for denial of access.

In many cases, a transfer of custody will not be an option because the non-custodial parent does not want or is unable to take custody. Even when the non-custodial parent does seek a transfer of custody, it may not be appropriate. If there is persistent wrongful denial of access, or other cause for concern, the non-custodial parent may apply for a transfer of custody. The judge would then have to decide whether a variation was in the best interests of the child given all the circumstances.

As in any application to vary a custody or access order, the non-custodial parent would have to prove “1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; 2) which materially affects the child; and 3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.”Footnote 45 If this threshold is met, the court must then consider afresh what is in the best interests of the child, taking into account all relevant circumstances. Several judges have correctly ruled that applications to vary custody in the context of access denial should be governed by the principles set out in the Supreme Court of Canada decision in Gordon v Goertz.Footnote 46

The statutory best interests of the child test, the current law of Canada on variation of custody and access orders, and the UN Convention on the Rights of Child do not support transfer of custody as an appropriate remedy for wrongful access denial. That a parent has wrongfully denied access is certainly an important factor to consider, along with all other relevant circumstances, on any variation application but alone is not a sufficient basis on which to order a transfer of custody.

5) Remedies for Abduction

Remedies for parental abduction are considered separately in this report because parental abduction calls for distinct approaches. The focus of interventions is on location and return of the child. There are separate criminal sanctions for abduction and international organizations are involved in some cases.

a) Notice of a Proposed Move

Most jurisdictions in Canada have enacted measures aimed at preventing a custodial parent from removing the child from the jurisdiction without notice. These measures, as detailed in Appendix A, provide that notice of a proposed move be given to the non-custodial parent.

Even in the absence of explicit statutory authority, courts have ordered custodial parents to give notice of a move and information on the new address, using their general powers to order custody and access subject to such terms and conditions as are in the best interests of the child.

b) Orders of Return

Most provinces and territories have enacted legislation specifically authorizing the courts to order the return home of a child who has been wrongfully removed to or retained in that province or territory, or when the court does not have jurisdiction. These statutory provisions may be applied in cases that are not governed by the Hague Convention on the Civil Aspects of International Child Abduction, including cases from within Canada. Quebec’s legislation, by its terms, applies within Canada but is not currently in effect for cases involving other Canadian jurisdictions.

Canada is a party to the Hague Convention on the Civil Aspects of International Child Abduction, and it has been implemented by legislation across Canada. Each province and territory has its own Central Authority. The Central Authority deals with abduction applications in the province or territory to which or from which a child has been abducted. As well, there is a federal Central Authority, who deals less directly with cases, and oversees and facilitates the operation of the Hague Convention, collects statistics for special commissions, and provides assistance as needed. The Convention applies to international abductions of children under the age of 16 between contracting states, when the abduction took place after the Convention came into force in the relevant states. The Convention does not apply to interprovincial abductions.

Article 12 provides that when a child has been “wrongfully” removed to or retained in a contracting state, an order will be made for return of the child to the country of their habitual residence, unless the application for return has been brought more than a year after the wrongful removal or retention and the child is now settled in their new environment. Further exceptions to the rule of automatic return are set out in articles 13 and 20. Article 20 provides: “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms.” Although the Convention protects rights of custody and access, it provides for return of the child only when there has been a “wrongful” removal or retention, and a removal or retention is “wrongful” only when it breaches “rights of custody.” Access rights are not given the same level of protection, and a parent who has only access rights may not use the Convention to obtain a return of the child who has been removed by the custodial parent.

Access rights are not defined in the Convention, but article 5(b) does provide that “‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.” A parent who has only the right to visit and be visited by the child is not entitled to an order for return, but is entitled to assistance from the Central Authority under article 21, as follows:

An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation, which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject. Because this provision does not impose any mandatory duties on the Central Authority to enforce access rights, only an obligation to promote co-operation, the Convention has not been an effective tool of access enforcement (Hague Conference on Private International Law, 2008: 20).

Most Canadian Central Authorities are not involved in access enforcement beyond referring parties to lawyers.

The Central Authority for BC reports that the BC government provides free mediation services to parents on incoming Hague access files through its Justice Services Branch, Ministry of Justice. Trained mediators provide services to over the phone, using interpreters where necessary.  Both parties must be willing to take part in mediation.

If the mediation is not successful, or if both parties do not want to take part in mediation, the applicant parent must obtain legal counsel in BC to apply to the court for an access order. Legal aid is available to those parents who qualify financially. The central authority assists the applicant with applying for legal aid and retaining counsel, privately or through legal aid. The Central Authority can also provide general information about the law in BC concerning access (Lipsack).

The Central Authority for Manitoba reports that it attempts to reach out to parent in Manitoba to advise of the availability of mediation through Family Conciliation (a government mediation service). Family Conciliation is prepared to do access mediation in international cases over the telephone and has been able to offer services in English, French and Spanish. If the left-behind parent needs to establish access rights in Manitoba, the Central Authority provides general information about that process and assists in retaining counsel. When proceedings are commenced in Manitoba, the Central Authority may play a role as “friend of the court” to assist the Manitoba Court (Sigurdson).

The Central Authority for Prince Edward Island reports that it will attempt to facilitate access for the left-behind parent and that it has tried to negotiate the voluntary return arrangements for left-behind parents (Zimmerman).

The Central Authority for Quebec reports that it first confirms the location of the child. Once the child’s location is confirmed, it determines whether any proceedings relating to the child have been commenced in Quebec. The Central Authority provides information for the left-behind parent about obtaining a lawyer in Quebec and about legal aid. If the parent qualifies for legal aid, a lawyer is appointed to represent the parent in proceedings to have the access order recognized. Otherwise, the parent must arrange for their own lawyer. If the foreign judgment is not enforceable, the Central Authority encourages negotiation and offers mediation. If negotiation and mediation are not possible, then proceedings must be introduced in court to obtain rights of access (Rémillard).

The Central Authority for Alberta reports that: 1) with incoming applications they assist the left-behind parent in obtaining counsel to represent them before the courts, referring the parent to legal aid if the parent lacks the financial ability to retain counsel privately; and 2) with outgoing applications they assist the left-behind parent in completing the Hague application and provide the application to the Central Authority in the reciprocating jurisdiction, requesting assistance in having the matter brought before the courts (Nicholson).

There are few reported cases on the Hague Convention’s access provision and relatively little attention has been given to it.

The enforcement of rights of access under the Convention could be improved if legal aid were available for non-custodial parents trying to enforce their access rights in Canada. Governments should consider extending legal aid for such cases. Some provinces provide legal aid to foreign parents in access enforcement cases, depending on financial eligibility and the merits of the case. Beyond this, the Hague Conference on Private International Law has recommended a more active role for Central Authorities in facilitating access in cross-border cases and has provided a Guide to Good Practice (Hague Conference on Private International Law, 2008). These recommendations should be considered.

In some cases, a non-custodial parent (or parent who does not live with the child) may be considered to have “rights of custody” within the meaning of the Convention. Article 5(a) of the Convention provides that “‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” When the non-custodial parent has more than the right to visit the child and shares the right to determine the child’s place of residence, then they may have “rights of custody” within the meaning of the Convention and may be entitled to an order for return of the child.Footnote 47

c) Criminal Charges

The Criminal Code contains provisions on parental child abduction that may apply to abductions that interfere with rights of access. For example, In R v PetropoulosFootnote 48 the mother had access for three days each week, and the custodial father was found guilty of parental child abduction when he took the child from British Columbia to Ontario without the mother’s consent. The court reasoned that the mother’s access was so extensive as to amount to joint custody, which triggered the Criminal Code abduction provision.

The relevant Criminal Code provisions 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

  1. an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
  2. 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

  1. an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
  2. an offence punishable on summary conviction.

Criminal charges are not appropriate in all cases of parental child abduction, and prosecutorial discretion is exercised carefully. Crown counsel must consult with their Chief Federal Prosecutor before proceeding, and the Criminal Code requires that the consent of the Attorney General be obtained before commencing proceedings under section 283. A directive of the Public Prosecution Service of Canada provides as follows:

Not all cases of parental child abduction will warrant criminal charges. As with any decision to prosecute, in addition to assessing the reasonable prospect of conviction, Crown counsel must consider whether a prosecution is in the public interest. Civil enforcement is another route that can be used as an alternative to the criminal response when criminal charges are not appropriate. The federal Family Orders and Agreements Enforcement Assistance Act establishes procedures to ascertain the addresses of parents and children residing in Canada from federal information banks to facilitate the enforcement of custody orders. The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention), which has been adopted by all Canadian jurisdictions, is the main international treaty that can assist parents whose children have been abducted to another country. (Public Prosecution, 2014)

The number one factor weighing against prosecution that is identified in the directive is that “a less onerous civil remedy is available and would be more appropriate in the circumstances.” Thus, prosecutors in Canada are explicitly charged with considering civil enforcement using the Hague Convention as an alternative to criminal proceedings. This addresses the problem of criminal charges hindering successful return of a child, the problem repeatedly identified by the Hague Conference on Private International Law.

6) Enforcement of Foreign Access Orders

At common law, it is not possible to enforce a foreign custody or access order, not even an order made in another Canadian jurisdiction.Footnote 49 A court would consider such an order only as one factor to be considered in a proceeding to determine custody or access. However, statutes that recognize and allow enforcement of foreign access orders have superseded the common law. This is important because such statutes address the problem of non-custodial parents being forced to obtain a new order for access in the jurisdiction to which the custodial parent has moved before proceeding with enforcement. It is necessary for the non-custodial parent to apply to have the order recognized and enforced, but not to re-apply for access. Although the recognizing court may vary or supersede the access in accordance with the statutes of each province or territory, the court’s starting point will be the existence of an enforceable access order in favour of the non-custodial parent. The measures to enforce foreign access orders will not exceed those available to enforce domestic orders.

The Divorce Act, s 20 provides that an access order made under the federal Divorce Act has legal effect throughout Canada and may be enforced throughout Canada. Under section 20(1), the definition of court for the purpose of this section may be expanded by each province to include a provincial court, thus making it possible to use the quicker and less expensive enforcement procedures available in provincial courts.

Every province and territory except Nova Scotia allows unilateral recognition and enforcement of foreign and extra-provincial access orders. All jurisdictions allow courts to supersede or vary such orders as appropriate, but details of these parts of the provincial and territorial legislation are not given here.

7) Enforcement against the Non-custodial Parent

As detailed in Appendix A, some provincial and territorial statutes provide for sanctions against a non-custodial parent who fails to exercise access. The most common statutory remedy is an order to reimburse the custodial parent for expenses resulting from the failure to exercise access.