Despite settled jurisprudence and ample  statutory remedies, difficulties in enforcing access to children continues to be a problem in search of a solution in family court, Toronto family lawyer Brian Ludmer writes in Lawyers Weekly.

“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,” the article says.

“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, foster antisocial 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.”

Such access issues occur even in the face of temporary and final court orders setting out a time-share schedule, writes Ludmer, of LudmerLaw.

A motion seeking compliance with the existing arrangements together with the addition of supporting provisions and specific directives is a first step, and failing all other interventions, a motion for contempt should be brought, writes Ludmer.

“In high conflict cases, the use of out-of-court remedies such as mediation, collaborative law and therapy has a disappointing track record,” he says. “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, should be considered early in intractable cases, the article says.

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