Ignoring access orders makes bad situations worse, by Brian Ludmer

Responding to difficulties in enforcing access to children continues to be a problem in search of a solution in family court. Despite settled jurispru dence and ample statutory rem- edies, parents denied their time with their children continue to struggle for practical, cost effective and timely solutions.

Almost without exception the non-compliant parent will indicate that they are encouraging the children to go, but cannot get them to go because the children have good reasons not to see the other parent. Decisions over access should not be left to children as that will necessarily triangulate them into their parents’ dispute and, through non-compliance with court orders, fosterantisocial behaviour. In a conflicted environment, the minute children get a sense of the optionality of their relationship with one of the two parents, the family dynamic will continue to unravel. Access problems occur even in the face of temporary and final court orders setting out a parental time share schedule. It is trite law to say that a court order speaks for itself, and that compliance is mandatory until such time as it in fact has been varied. The failure of child protection agencies to intervene in a particular case is the best possible evidence that there should be ongoing compliance with a current court order until it is varied. However, the tens of thousands of reported cases of non-compliance suggest that the simple argument that “an order is an order” is not a sufficient or compelling response.

The first step is a motion seeking compliance with the existing arrangements together with the addition of supporting provisions and specific directives. The fundamental difference between a motion for compliance and the motion for contempt is set out in Hefkey v. Hefkey [2013] O.J. No. 1697. One supportive provision to seek is an order for a mandatory payment for each subsequent missed access. Since fines and penalties are only available on a motion for contempt, the remedy in a motion for compliance can prescribe that the payments be made to the children’s RESP.

Failing all other interventions, a motion for contempt should be brought—however, this entitles the defending parent to an oral hearing if they wish, and will lead to further delay. The impact of the Supreme Court of Canada decision in Hryniak v. Mauldin [2014] S.C.J. No. 7, which urges courts to consider proportionality and expedited remedies short of trial, is still to be seen. Hope fully, this will embolden courts to take a decisive intervention at the earliest stage of denial of access, before the family dynamic becomes too difficult to reverse.

In high conflict cases, the use of out-of-court remedies such as mediation, collaborative law and therapy has a disappointing track record. In particular, it is not well understood that there are many “schools of therapy” and that in cases of severe family dysfunction, normal therapy can actually do more harm than good by providing yet another forum for the airing of grievances.

The ultimate remedy of change of primary residence, perhaps with a non-contact order, needs to be considered earlier in the intractable cases. While there are many reported cases where this ultimate remedy has been resorted to, they generally come after many, many years of family dysfunction at enormous cost, and need to be considered earlier in the process.

Acting for the parent seeking remedies requires a focus on the guidance, boundaries, incentives and consequences that ought to be deployed by the offending parent in their own home in order to ensure that the children exhibit healthy and appropriate behaviour regarding access with the other parent. Those four tenants of “parenting” need to be applied in an escalating manner as access denial continues month after month. In the absence of that evidence, the word “encourage” is a hollow excuse indeed.

The difficulties and the ultimate remedies are illustrated in two cases that the writer has been involved with. In Sickinger v. Sickinger [2009] O.J. No. 2306 (affirmed [2009] O.J. No. 5178), Justice Susan Greer stated: “[I]t is essential that the Court take a firm step to prevent further breaches of the 2008 Order. It is not sufficient for the Court to overlook a first breach. Child custody and access Orders are not like a game of baseball, where it takes three strikes before you are ‘out.’”

A pattern of non-compliant behavior was canvassed in A.F. v. J.W. [2011] O.J. No. 2953 and [2013] O.J. No. 3153, a case involving two five-week trials, a motion for contempt, multiple prior therapeutic failures and ultimately a reversal of custody. The matter is to be heard by the Ontario Court of Appeal in the late summer/early fall of this year and will hopefully clarify some of the vexing issues in these types of cases.

Brian Ludmer is a business law and family law attorney in Toronto and was counsel to the successful father in each of the Sickinger and A.F. v. J.W. decisions.