Overview and Assessment of Approaches to Access Enforcement: An Update

Effective Access Enforcement Laws and Programs in other Countries

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. The efforts in England and Wales to improve access enforcement by introducing new sanctions point to the limits of punitive measures and the importance of preventive and alternative measures. Michigan provides a model of a state that provides full-service government enforcement of access orders.

1) Australia

Australia has long recognized the need for early identification of particularly problematic parenting issues in order to provide appropriate services (Australia, 1995). Recent efforts have focused on improving early identification of serious problems at an early stage. After a successful pilot project, a mandatory Notice of Risk form was introduced in 2015 (Australia, 2015). All parties bringing parenting disputes to the courts must complete the Notice of Risk form, indicating whether there are any allegations of risks to children related to child abuse, neglect, substance abuse, mental health problems, or parenting incapacities.

Further screening is provided in the Family Court of Australia through case assessment conferences, which are generally the first court event. Courts provide additional screening when matters are referred to in-house family consultants for child dispute conferences, child inclusive conferences, the child responsive program and the preparation of family reports.

Australia provides helpful sites with information about laws and procedures relating to access and family law services.

Australia encourages settlement of access disputes and funds a range of services to assist families, including:

  1. Children’s Contact Services, which provide supervised access services.
  2. Family Law Counselling, which helps people with relationship difficulties manage their issues to do with children and family during marriage, separation and divorce.
  3. Family Dispute Resolution Services, including mediation aimed at helping couples to resolve family disputes.
  4. Post Separation Co-operative Parenting Services, which help separated or divorced families who are in high conflict to work out parenting arrangements in a manner which encourages consideration of what is in a child’s best interests in establishing or maintaining relationships, while at the same time ensuring the safety of all parties.
  5. Supporting Children after Separation Program, which supports children from separated or separating families who are experiencing issues with difficult family relationships.

In regard to issues relating to supervised access, Australia created guidelines to enhance the relationship between the Family Law Courts and Children’s Contact Services with a view to facilitating the appropriate use of Children’s Contact Services by the Family Law Courts (Australia, 2007). The paramount consideration underpinning the guidelines is the best interests of the child. The guidelines include a checklist of factors for judges to consider when ordering supervised access, and provide that the Children’s Contract Services should consider whether the supervised access arrangement is in the best interests of the child or instead requires a variation. These guidelines may prevent supervised orders being made or continuing when they are not in the best interests of the child.

Australia provides online information about complying with access orders. The site includes a step-by-step guide for parties wanting to enforce access orders and clear information about the sanctions for failure to comply with an access order.

Pursuant to Australia’s Family Law Act, Division 13A, if there has been a failure to comply with an access order a court may:

  1. vary the primary order;
  2. order attendance at a post separation parenting program;
  3. order compensatory access;
  4. require the party who has not complied to enter into a bond;
  5. order payment all of the legal costs of the other party;
  6. order compensation for reasonable expenses lost as a result of the contravention;
  7. require participation in community service;
  8. impose a fine; or
  9. order imprisonment.

Although Australia provides this full range of sanctions for failure to comply with an access order, its system places more emphasis on early screening to identify risks and provision of preventive and alternative services.

2) England and Wales

The UK’s Children and Adoption Act of 2006 amended the 1989 Children Act and introduced new powers for the courts in relation to enforcement of access orders. The new access enforcement measures were introduced because of concerns among policy-makers and fathers’ rights groups that courts were not doing enough to enforce access orders (Trinder el al, 2013). The challenge for courts was that the existing remedies for denial of access – fines or imprisonment or a change of custody – were impractical or inconsistent with the best interests of the child.Footnote 50

Under the new rules, access orders now contain a warning notice to the other party about the consequences of non-compliance with the order. Courts must determine the cause of the alleged failure to comply and can order sanctions only if the breach of the access order was without reasonable excuse. If the access order has been breached without reasonable excuse, the court may refer the parties to a parental education program or mediation, vary the custody and access order, order the defaulting party to perform unpaid work (community service), order that the party in default compensate the other for wasted expenses, or order a fine against the defaulting party.

Under the new rules, courts retain the power to transfer custody in cases of access denial, but they do so only when this is in the best interests of the child. In the case of Re: K (contact: committal order), Hale LJ made clear that “any decision to change a child’s residence in the context of difficulties over contact must be fully justified by affording paramount consideration to the child’s welfare, and is not to be imposed as a form of punishment to a parent.”Footnote 51 There are cases of access denial where a transfer of custody has been found to be in the best interests of the child. In the case of Re: Y (Private Law: interim change of residence) [2014] EWHC 1068 (Fam), [2014] All ER (D) 106 (Apr), Pauffley J transferred interim residence of a 22-month-old child from the mother to the father based on the mother’s inability to support contact with the father.Footnote 52 The mother’s allegations that the child had been abused by the father were disproved at a fact finding hearing and there were concerns about the mother’s obsessional anxiety.

In 2012, the government considered possible new sanctions, including the withdrawal of passports and drivers licences, but decided against proceeding with these measures (Trinder et al, 2013).

The first empirical study of access enforcement since the new enforcement measures were introduced in 2013 (Trinder et al, 2013). Trinder and her colleagues noted that in England and Wales, substantial public attention has been given to cases of implacably hostile custodial parents who unreasonably deny access. The researchers found, however, that cases of implacable hostility to access were a small minority, and that courts tended to use punitive sanctions in such cases. For the more typical cases involving high-conflict families, safety concerns, or older children who wanted to reduce or stop access, courts tended to focus on settlement rather than adjudication and on problem-solving rather than identifying whether or not a breach has occurred and sanctions needed. High-conflict cases were dealt with by a new contact timetable or by efforts to address the conflict and to support cooperative co-parenting. Cases involving safety concerns were handled by a protective approach based on risk assessment and management. Where older children wanted to limit contact, courts made efforts to elicit and typically respond to the children’s wishes and feelings. Punitive sanctions typically were reserved for the few cases of implacable hostility, where the custodial parent was unreasonably and systematically blocking contact (Trinder el al, 2013).

Trinder and her colleagues found that the courts acted appropriately in the great majority of cases by focusing on facilitating co-parenting, implementing protective measures or heeding the views of older children. In only a handful of cases were the courts insufficiently robust in handling implacably hostile parents, and those cases were outweighed by the cases where the court was too robust in imposing punitive sanctions in domestic violence cases (Trinder et al, 2013).

Though generally positive about the handing of cases, the researchers found that there was a tendency to give too much focus to rapid case processing at the expense of addressing the underlying issues giving rise to the dispute. The researchers also pointed out that some of the high-conflict cases returned to court quickly. Other problems identified were insufficient support for children and inadequate risk assessment. The researchers suggested that there should be a refocus away from the relatively few implacably hostile cases requiring punitive sanctions and towards creating safe and child-centred solutions to the full range of enforcement cases (Trinder et al, 2013).

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 is given to problem-solving and to facilitating a workable plan for the future.

3) United States

a) Connecticut

Connecticut’s family court has demonstrated a commitment to providing family litigants with expeditious and cost-effective resolution of disputes. It has piloted various new programs and continues to assess its services to identify ways to improve (Connecticut, 2015). Of particular interest to Canadian law and policy-makers is Connecticut’s early screening system coupled with its provision of appropriate services.

Connecticut’s Court Support Services Division has long offered mediation and comprehensive evaluation services. In 2005, two additional services were introduced: conflict resolution conferences and issue-focused evaluation. A conflict resolution conference is a blend of mediation and negotiation. The counselor’s primary goal is to help the parties reach a resolution of their own making, but if the parties are unable to do so, the counselor may direct the process, obtain information and offer suggestions as well as recommendations. Lawyers may be present during the conference (Pruett & Durell, 2009).

Issue-focused evaluation is a process of assessing a limited issue impacting a family and/or a parenting plan. Issue-focused evaluation is not a comprehensive assessment of the family, however it is evaluative and it is not confidential. The goal is to define and explore the issue causing difficulties for the family, gather information regarding only this issue, and to provide a recommendation to the parents and the court regarding resolution of the dispute. It is limited in scope, involvement and duration (Pruett & Durell, 2009).

When the  two new services were added, a new Family Civil Intake Screen began to be employed when families were referred for family services at the Court. Early screening and appropriate provision of services has been widely identified in the United States as a crucial component of family court services (Salem et al, 2007; Ostrom et al, 2014). The Connecticut Judicial Branch-CSSD Family Services Unit, in collaboration with the Association of Family and Conciliation Courts, developed a research-based screening instrument. The Family Civil Intake Screen is designed to match families with the service most appropriate in their case. When a dispute regarding custody or access is referred to Family Services, a family relations counsellor asks both parents a series of questions to identify the level of conflict and complexity of issues between the parents. The screening includes questions about current court orders, past and present parenting concerns and level of conflict between the parents. The screen helps Family Services determine if mediation, a conflict resolution conference, issue focused evaluation, or a comprehensive evaluation is the appropriate service to help the parents to resolve their conflict.

Evaluators of the new screen and services determined that these initiatives have undoubtedly made a positive impact on the quality of family court services provided in Connecticut. Parties were more likely to settle and less likely to return to court (Pruett & Durell, 2009).

Connecticut, with its early screening and provision of differentiated services appropriate to the nature of the access dispute, provides a good model for Canadian law and policy-makers.

b) Michigan

Michigan has long had a state program for access enforcement. The state’s program was assessed in the 2001 Department of Justice Canada report Overview and Assessment of Approaches to Access Enforcement. This report will outline the program’s practices and procedures.

Information about the relevant laws and the program is accessible online at Friend of the Court Bureau.

Michigan’s program is “user-friendly.” The procedures and available measures are spelled out clearly in the legislation and publicized. Because Michigan provides a friend of the court to enforce access, individual parents who have been denied access do not have to hire lawyers or represent themselves. Mediation is provided for all those who choose it.

In the paragraphs that follow is a modified summary of the information provided by Michigan about its program.

Under Michigan’s Friend of the Court Act and the Support and Parenting Time Enforcement Act, the friend of the court is required to enforce access orders. The friend of the court office initiates enforcement by written notice to the person who is alleged to have violated the order, advising the person of the nature of the violation and the proposed action to be taken. The notice must inform the person of the availability of mediation and the right to seek modification of the order. After waiting 14 days, the friend of the court may do one or more of the following:

  1. Schedule a joint meeting with the parties to discuss the allegations of failure to comply with an access order for the purpose of attempting to resolve the differences between the parties;
  2. If the parties agree to mediation, refer the parties to meet with a domestic relations mediator;
  3. If the parties are unable to resolve their differences, or, if it appears from a documented history of parenting time problems that enforcement under the Friend of the Court Act will not yield productive results, the friend of the court office may proceed under the Support and Parenting Time Enforcement Act.

Mediation is strictly voluntary but it is encouraged and provided for all who choose it. The Friend of the Court Act requires that

  1. all parties be given a pamphlet that includes information on the availability of, and procedures used in, mediation;
  2. all parties be informed of the availability of mediation for custody and parenting time (access) disputes;
  3. mediation be provided “to assist parties in settling voluntarily a dispute concerning child custody or parenting time,” and that parties should not be required to meet with a mediator; and
  4. mediators have specific qualifications.

The Friend of the Court Act states that communications made within mediation are privileged and inadmissible as evidence.

Under the Support and Parenting Time Enforcement Act, the friend of the court may take one or more of the following actions:

  1. Apply a makeup access policy;
  2. Commence a civil contempt proceeding;
  3. Petition the court for a modification of existing access provisions to ensure access.

The following specific remedies are also available:

Joint meetings: Joint meetings may be called by the friend of the court office. There is no requirement that a person attend a joint meeting absent a court order. The friend of the court office has no authority to impose a solution.

Mediation: Mediation may be statutory domestic relations mediation or alternative dispute resolution. Statutory mediation requires the parties to agree to have their case mediated pursuant to statute. No person may disclose what occurred during the mediation. If the parties reach an agreement, an order is prepared to enter their agreement.

Makeup access: Each circuit court is required to have a makeup access policy addressing the procedure by which missed access is made up by access in the future. The State Court Administrative Office has developed a model policy for makeup access that essentially calls for time to be made up by substituting identical time for that missed (for example, weekends for weekends, holidays for holidays, summers for summers). The time would be applied by contacting the person who is alleged to have violated the order and notifying that person that the makeup access policy will be applied unless the person replies within 7 days to oppose the makeup access. If a timely reply is made, a hearing is scheduled. Makeup access accounts are kept by the friend of the court.

Civil contempt: Civil contempt is initiated by the friend of the court office filing a motion and obtaining an order directed toward the person who is alleged to have violated the order to show cause why the person should not be found in contempt for disobeying the court order. A person cannot be punished for contempt without first being given a chance to comply with the order. Possible sanctions for violating an order are:

  1. Jail of up to 45 days for a first offense and up to 90 days for a second offense.
  2. A fine of up to $100.
  3. Suspension of driver’s, occupational, recreational or sporting licenses.

Motion to modify access: The friend of the court office may file a motion to modify access if the dispute has not voluntarily been resolved. If such a motion is filed, the statute requires the friend of the court to submit a report and recommendation with its motion. Changes that can be recommended include:

  1. Division of the responsibility to transport a child(ren).
  2. Division of the cost of transporting the child(ren).
  3. Restrictions on the presence of third persons during access.
  4. Requirements that the child be ready for access at a specific time.
  5. Requirements that the parent pick-up and return the child(ren) at a specific time.
  6. Requirements that the access occur in the presence of a third person or agency.
  7. Requirements that a party post a bond to assure compliance with an access order.
  8. Requirements of reasonable notice when access will not occur.
  9. Any other reasonable condition appropriate in the particular case.  

In response to a notice contained within a show cause order, a party may request a hearing on the issue of modification. If such a modification is requested, the hearing on the issue of modification of access is held at the same time as the issue of contempt.

As indicated by this description of Michigan’s program, it is a comprehensive approach to access enforcement. The state takes on much of the burden of enforcing access. In 2009, Justice Milner of Nova Scotia’s Family Court suggested that

Perhaps there should be a “director of access enforcement” as the maintenance-paying-parents have suggested. Or, perhaps there should be an Office of Family Responsibility, with both a maintenance enforcement branch, and an access facilitation branch. It would be staffed with professionals trained in all aspects of parent-child relationships.Footnote 53

For provinces interested in providing an access-enforcement service, Michigan provides a good model.