Posted on July 16th 2018 in Family Law

Access Schedules cannot be controlled by children

An Ontario Court of Appeal (OCA) decision finding primary parents have a duty to ensure their children visit with their other parent illustrates the fact that changes to an access schedule must be based on more than the whim of a child, says Toronto family lawyer Nicola Savin.

Godard v. Godard, 2015 ONCA 568 (CanLII) dealt with an appeal from a mother who argued that a motion judge erred in finding her in contempt for refusing to comply with an access order. The mother felt that since the couple’s 13-year-old daughter did not want to go to her father’s home, she should not be forced to do so.

Justices Alexandra Hoy, Gloria Epstein and Grant Huscroft dismissed the appeal and upheld the contempt finding, stating it was appropriate given the background of the case. The mother “has a history of trying to limit or terminate the respondent’s access” to the child, says the decision.

“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,” reads the decision.

Savin, a partner with Birenbaum, Steinberg, Landau, Savin & Colraine, LLP, says a child’s wishes are not a sufficient reason for disregarding an access order.

“It’s incumbent on a parent who wishes to change the terms of an access order that they actually go to court and seek to change it,” she tells AdvocateDaily.com. “That’s what the parent in Godard could have done, but they instead chose to disregard the schedule and rely on doing what the child wanted. That’s not sufficient. If you have a court order you have to comply with it. It’s not up to you to exercise your own discretion and do whatever you want.”

It’s not uncommon for children to resist access arrangements, says Savin, especially early on in a case.

“They’re used to their routine; it’s almost always a challenge,” she says. “Sometimes there are exceptions but there is almost always some resistance. Nobody wants two homes. Parents are the ones who get to stay in their homes while the children go back and fourth.”

It’s not easy, says Savin, but most children can manage the transition.

“They’re young and resilient, and they want to see both parents,” she says. “Some are more rigid and there may be valid reasons for them not wanting to go see the other parent, and if that’s the case, the parent who knows of the valid reasons should take the issue back to court.”

Savin says often, children’s wishes may mirror what the primary parent wants rather than their true feelings.

“Just because the children say they don’t want to see the other parent doesn’t necessarily mean that’s what they really want. The kids may be caught in the middle.”

Savin encourages families in such a position to see a family therapist who specializes in families in transition.

“I think it’s useful for the child, depending on their age, to see a therapist by themselves or with the primary parent or both so the whole family can be involved in the solution,” she says. “That way, if there is an actual problem it can be aired and hopefully resolved in some way without recourse to litigation.”

Originally published in Advocate Daily.

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