Unfortunately, it is a far all-too-common scenario in family law: the parent with whom the child resides denies access or claims that the child does not want to see the other parent.
Godard v. Godard, 2015 ONCA 568 makes it clear that a parent, in this case, the mother, can be found in contempt of an access order despite the fact that a child claims she does not want to visit an access parent if the custodial parent does not go beyond mere encouragement and apply normal parental authority to have the child comply with the order.
The mother and father were married in 1999 and separated in 2005. There are two children of the relationship, namely I. and S.,, who were born in 2000 and 2002 respectively.
The mother was awarded interim custody of I. and S. in 2006 and the father was granted access every other week. In 2010, a temporary order was granted directing that I.’s primary residence be with the father.
The parties consented to a temporary order for the father’s access to S. on November 3, 2014, which the mother did not comply with.
After being denied access, the father successfully brought a motion for contempt against the mother. The motion judge noted, among other things, that the mother let S. decide whether or not she would attend access visits with the father.
The mother appealed.
In the mother’s appeal, she argued that the motion judge had erred by, among other things, finding that the mother had deliberately and willfully breached the access order beyond a reasonable doubt.
In addressing this argument, the Ontario Court of Appeal stated as follows in paragraph 28:
Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child.
The Ontario Court of Appeal noted that the motion judge relied upon the fact that the mother had been advised that she was required to do more than merely encourage access. The motion judge had asked the following:
What does the mother do when this child doesn’t want to go to school or doesn’t want to go to the dentist? What are her mechanisms? Right?... Does this child have an allowance? Does she have a hockey tournament that maybe she’s not allowed to go to if she doesn’t go to see dad before? Are there things she could do to force her to go short of the police attending to her house and physically removing her?
Accordingly, the Ontario Court of Appeal upheld the decision of the motion judge and found that the mother deliberately and willfully disobeyed the access order beyond a reasonable doubt when she did not use her parental authority to have S. comply with the order for access.
Erika R. Jacobs