Overview and Assessment of Approaches to Access Enforcement: An Update

Conclusions

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

Orders relating to access and access enforcement should be based on the best interests of the child. The best interests of the child should be determined on a case-by-case basis, without the application of presumptions. Although in most cases an order for access will be in the best interests of the child, research indicates that in some cases no access is in the best interests of the child. In determining the best interests of the child, the views of the child should be considered. Additional efforts could be made to ensure that capable children have an opportunity to have their views considered.

Early screening and provision of services appropriate to the nature of the problems identified results in more efficient and cost-effective dispute resolution. None of the provinces or territories provide by statute or otherwise for screening of all cases and provision of appropriate services, although some screening is carried out in some parts of the country. Australia and Connecticut provide models of early screening and provision of services that may be appropriate for Canada.

Preventive measures and services aimed at non-adversarial resolution of disputes are highly important. In recent years, provinces and territories have expanded services to facilitate conflict prevention and resolution of disputes. Ongoing efforts to improve and enhance parental education, mediation and assessment services, supervised access services and the provision of online information will make successful resolution and management of access disputes more likely.

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

Generally, the best interests of the child standard will support an incremental application of enforcement measures, under which alternative approaches are stressed and compensatory remedies are used initially. When access denial or failure to exercise access persists, remedies become more coercive and punitive. The use of coercive or punitive measures is problematic when there are good reasons for non-compliance. In such cases, it may be in the best interests of the child to vary the custody and access order. Coercive and punitive measures often undermine the best interests of the child and are therefore considered appropriate only after other measures have failed.

Australia, the UK and the US have legal cultures and socio-economic conditions that are similar to Canada’s. Canadian law and policy-makers can learn from or use as models the laws and processes used in these countries to deal with access enforcement. Australia and Connecticut are particularly helpful models in regard to early screening and provision of services. Recent efforts in England and Wales to improve access enforcement by introducing new statutory sanctions points to the limits of punitive measures and the importance of preventive and alternative measures. For provinces and territories interested in providing an access-enforcement service, Michigan provides a good model.