Godard v Godard, 2015 ONCA 568
Shared custody or access arrangements involving pre-teens can be a challenge when the child insists that they do not want to see the other parent. How far does the custodial parent have to go to ensure that the child attends access?
The recent Ontario Court of Appeal case, Godard v Godard, offers custodial parents some guidance on what measures they could be expected to take to ensure the child attends visits with the access parent. In this case, under a previous interim custody and access order, the father was to have bi-weekly visits with his youngest child of two (the older child resided with him). When the child in question was about 11 years old, she began refusing to visit her father.
After several months, the father brought a motion for contempt against the mother alleging that he had been deprived of his scheduled access to the child. The mother explained that she had tried to facilitate the father’s access and even encouraged the child to see her father, but the child, who was now about 12 years old, had “persistently refused” to see him.
The Court of Appeal agreed with the motions judge that in allowing the child to decide whether or not she would visit her father, the mother had essentially abdicated her parental authority on the access issue. The Court of Appeal agreed that the mother should have gone “beyond mere encouragement” to ensure the child attended her scheduled visits with her father. For this reason, the Court of Appeal upheld the motions judge’s finding of contempt of the court order and ordered the mother to pay over $8,000 in costs.
The Court of Appeal’s decision reiterates that a child’s wishes, particularly those of a pre-teen or teen, should be considered when the court is making an access order. But once the order is made, a parent cannot leave the decision to comply with the access order up to the child. This decision is also interesting because it clarifies what measures the courts may expect the custodial parent to take to get the child to attend the scheduled visits. Merely “encouraging” the child to decide to visit the other parent is not enough. Instead, parents should consider implementing the methods they use when a child refuses other mandatory activities, such as going to school, cleaning their room, or doing their homework.
When your child refuses these activities, do you remove rewards such as the child’s allowance, television time, cell phones, or hockey games? Do you “ground” the child? The decision in Godard suggests that custodial parents must go beyond merely encouraging the child to attend visits, and should be able to show that they at least attempted to take reasonable parenting steps, short of physical force, to ensure the resistant pre-teen child attends scheduled visits.
If you are having problems with your child resisting access, the Harrison Pensa Family Law Practice Group is here to help. Contact us to discuss your options.
Kate Bennett (Practice Group Co-Lead)
Jennifer Wall (Practice Group Co-Lead)
Toenie Z. Hersch