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Court of Appeal lowers boom on gatekeeper parents

An Ontario Court of Appeal (OCA) ruling stating parents have a duty to ensure their children visit with their non-custodial parent is a positive approach that highlights the fact that the decision to comply with — or disregard — an access order cannot be made by a child, says Toronto family lawyer Audrey Shecter.

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.

Shecter, a lawyer with Beard Winter LLP, says the case rightly emphasizes the importance of separated parents going beyond merely encouraging a child to visit the other parent when an access order is in place.

“It sends a clear message that counsel should advise their clients that access needs to take place, regardless of a child's real or perceived reluctance,” says Shecter, who did not act in the case and commented on it generally.

Such situations are not uncommon, she says. In one instance, she recalls, one of her client relationships was terminated after she advised the mother to ensure her seven-year-old visited the father, despite the mother’s claims that the child did not want to spend time with him.

"Clients frequently tell me that the child doesn't want to go to the access parent," says Shecter. "It's difficult for me to know what is really going on and whether the reluctance is genuine or is being fuelled by the way the residential parent is discussing access with the child.”

It can be as simple as one parent saying, “You have to go to your dad’s this weekend, so I’m sorry but you’ll have to miss your friend’s birthday party,” or, “I know it's not fun for you at your mom's house and that you'd rather be here," says Shecter. 

Citing a comment from the lower court judge who made the access order in Godard in November 2014, the OCA said in essence, allowing a child to dictate whether access takes place is similar to saying a child should determine whether they have to go to school or to the dentist.

“It’s a very interesting comparison,” says Shecter. “It’s really asking parents to explore what other kinds of disciplinary mechanisms they employ in other important circumstances when the child isn’t being co-operative."

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