Can a child refuse to visit a parent?
By Mia Clarke, Associate Editor
Many divorced parents have grappled with what to do when their child doesn’t want to visit the other parent, says Toronto family lawyer Lisa Gelman.
Amid the tears and tantrums, it isn’t always easy to force a child to go, but under certain circumstances, parents can be held in contempt of court for not enforcing access agreements, says Gelman, principal of Gelman & Associates.
“If there’s an agreement in place and there aren’t any concerns for the child’s safety, the parent is obligated to enforce visitation — regardless of the child’s wishes,” she tells AdvocateDaily.com.
Clearly, it’s a different case when there are allegations of abuse or neglect, adds Gelman. In those situations, the parent with the concern would have to go to court to have the agreement changed. Since it can often take two or three months — or more — to get to court, Gelman says parents can seek an “urgent motion” for an interim order that would allow the child to forego the agreed-upon conditions.
Access can also be varied to reflect the wishes of the child, explains Gelman, although it depends heavily on age. After 18, children without any special needs can decide entirely for themselves who they want to live with and who they want to visit. At the other end of the spectrum, very young children — generally preschool aged — have virtually no say at all.
And in the middle, says Gelman, is the “grey area.”
“Generally, the older a child is, the more weight a court will put on their wishes,” she says.
Courts will take into account a child’s age, maturity and the reasons they give for not wanting to spend time with a parent.
In this case, the Ontario Court of Appeal dealt with the mother of a 13-year-old girl who didn't want to visit her father. The mother didn't think she should be forced to make her daughter go.
In dismissing the appeal and upholding the contempt finding against the mother, the court said it was appropriate given the background of the case.
“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.
Gelman says each situation is unique and that there “are many curves in the road when it comes to these situations.” She says parents should seek legal advice when a child protests regular visitation with the other parent.
“Amid the turmoil of separation and divorce, parents are often not able to objectively judge what constitutes a good reason to ignore an agreement,” she says. “For a mother, when her child is crying and begging not to go, it’s easy to sometimes lose that objective lens.
“And parents should be aware that without a very good reason, the court could find them in contempt if they don’t ensure that the child visits the other parent.”