“In considering this defence, I will first look to a parent’s obligation to ensure that a child exercises access or parenting time as ordered, even if against their will.
A number of authorities have set out a parent’s obligation to ensure that a parenting order is obeyed. In Geremia v Harb, Quinn J. was forceful in stating:
44 Mr. Wilson argues that our law does not require a parent, who wishes to avoid a contempt citation, to physically force a child to go on an access visit. I respectfully disagree with that argument as a general legal principle. Whether a child should be physically forced by the custodial parent to go on an access visit depends upon the facts of the case. Certainly, the force used should not be such as to cause physical harm to the child. And, although the specter of emotional harm is far more problematic, a custodial parent would be advised to ensure that the evidence supports such a risk before declining to physically force the child to abide by an access order for that reason. Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.
In V. (S.) v. I. (T.), 2009 CanLII 9396 (ON SC), 2009 CarswellOnt 1023 (S.C.J.), a contempt motion was brought against a parent who passively allowed an 8 and 13-year-old child to refuse attend to access, leaving it to the other parent to negotiate with the children. Reilly J. wrote at para. 32:
Mother’s constant theme in her many affidavits was that while she may have, on occasion, “encouraged” the children to go with their father, she could not “force” them to go. Regrettably, mother’s choice of verb is inappropriate. Rather than “force” a child to go, a parent in these circumstances should “require” a child to go. Children of the age of T.V. and B.V. (particularly during the first few years of separation) will, put quite simply, do what their parents tell them to do. On occasion, a parent “requires” a child to go to the dentist or “requires” a child to go to school or “requires” a child to do homework or to go to bed on time. That is quite simply the role of a parent. If a proper parent/child relationship exists, the child will, however grudgingly, comply with such a “requirement” or direction.
In Goddard v. Goddard, 2015 ONCA 568, the Court of Appeal for Ontario considered the appeal of a mother who left it up to her 13 and 15-year-old children to decide whether to attend access with their father. In finding the mother in contempt for failing to obey an access order regarding the 13-year-old child, the motion judge found that the mother had abdicated her responsibilities. In upholding the contempt finding, the Court of Appeal for Ontario rejected her argument that the child’s refusal to see her father negated the notion that she wilfully disobeyed the order. It was not sufficient that she offered some evidence of some encouragement to attend access. The court stated:
28 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. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathurst, [2008] O.J. No. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); and Hatcher v. Hatcher, 2009 CanLII 14789 (ON SC), [2009] O.J. No. 1343 (Ont. Sup.Ct.).
29 No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant’s failure to do all that she reasonably could: she failed to “take concrete measures to apply normal parental authority to have the child comply with the access order”.
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33 It is possible that nothing short of physical force could have brought S. to the access visits. However, this does not excuse the appellant given the motion judge’s finding that she has not done all that she could to attempt to comply with the access order. The motion judge found that despite being on notice that attempts at stronger forms of persuasion may be required, the appellant did not go beyond mere encouragement. In these circumstances, the motion judge properly concluded that deliberate and wilful disobedience was established beyond a reasonable doubt.