“Counsel for the Respondent cited a number of cases where courts have addressed how a parent might respond to a recalcitrant teenager or older child who is the subject of a court order and who does not wish to comply with that court order.
Those cases include:
Godard v. Godard, 2015 ONCA 568 (CanLII), [2015] O.J. No. 4073 (C.A.)
In this case, the original motion judge had found ample evidence of failure on the part of the custodial parent to require her 11-year-old child to attend access with her father. As the Court of Appeal noted, the motion judge found that the child was “under the impression that she could decide, starting at the age of 12, whether she wished to continue access” with her father.
While this was a contempt motion, which requires a higher standard of proof than a motion to compel compliance under subrule 1(8), the Court of Appeal rejected the Appellant’s submission that it was sufficient for the custodial parent to encourage the child to attend access in order to avoid a finding of a deliberate and wilful disobedience of a court order beyond a reasonable doubt.
The Court of Appeal addressed the issue of how parents might approach dealing with older children and having them comply with court orders as follows:
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“: (citations omitted)
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”. (Bolding added)
Quoting the motions judge, the Court of Appeal addressed the submissions that a parent cannot force the child to comply with the court order, writing:
30… [W]hat does the mother do when this child doesn’t want to go to school or doesn’t want to go to the dentist? What are her mechanisms? Right? … Does this child have an allowance? Does she have a hockey tournament that maybe she’s not allowed to go to if she doesn’t go to see dad before? Are there things she could do to force her to go short of the police attending at her house and physically removing her?
The Court of Appeal found that the mother “did not go beyond mere encouragement to attempt any stronger forms of persuasion.” As a result, the Court of Appeal dismissed the Appellant’s appeal from a finding that she was in contempt of the court order that the child attend access with her father.
Stuyt v. Stuyt, [2009] O.J. No. 2475
In this case, the child who was the subject of the proceeding was 13 years of age. The parties had engaged in years of litigation over a number of issues including custody and access. The mother had custody of the children. There was a specific schedule when the children were to be in the care of the father. The evidence established that on several occasions the 13-year-old child simply vacated the residence of the mother and went to stay with the father. On some of those occasions, he did so despite direction from his mother that he remain at home. The court found that by allowing the child to remain in his care at times when he was supposed to be in the care of his mother, the father was in contempt.
Justice C.D. Aitken wrote the following about the father’s evidence that he tried to have the child follow the terms of the order:
44 The Respondent’s evidence is that on a number of the occasions in question, he attempted to convince Braden to return to the Applicant’s home but Braden refused. There is nothing in the evidence that lends any credence to the Respondent’s evidence that he tried, in good faith, to persuade Braden to return to the Applicant’s home but the Respondent could not convince him to do so. The Respondent’s behaviour belies this assertion.
45 There is no evidence from the Respondent that he actually told Braden that he had to return to the Applicant’s home on any of the occasions in question. There is no evidence that he actually took Braden back to the Applicant’s home (via the intermediary) on any of these occasions (aside from the night of May 6th, when the Respondent returned Braden hours later). There is no evidence that the Respondent took any disciplinary action against Braden for his refusal to abide by the access regime to which both the Applicant and the Respondent had agreed. He did not ground him. He did not remove any privileges. He did not impose any sanctions for disobedience to parental instructions. On the contrary, Braden was rewarded for being at the Respondent’s farm instead of the Applicant’s home. (Bolding added)
Justice Aitken continued:
52 In order to meet his own needs of wanting Braden living with him, the Respondent is undermining Braden’s respect for the Applicant, for the law, for the courts, for the police, and for authority in general. Heaven help Braden as he moves through his teenage years and his years as a young adult if this is the message he is receiving from his father.
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54 I join in the chorus along with several of my colleagues who have observed as follows.
A parent has some positive obligation to ensure that a child who allegedly resists contact with the other parent complies with the existing access order. (Hatcher, supra, at para. 27; Quaresma, supra, at para. 8)
A parent governed by an access order is not entitled, in law, to leave access up to the child. (Hatcher, supra, at para. 28; K.(B.) v. P.(A.), [2005] O.J. 3334 (S.C.J.) at para. 24)
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 to or stay at the home where he is supposed to be under an access order should be treated by the parent the same as a child who refuses to go to school or who otherwise misbehaves. The job of a parent is to parent. (Hatcher, supra, at para. 28; Geremia v. Harb, 2007 CanLII 1893 (ON SC), [2007] O.J. No. 305 (S.C.J.) at para. 44)
55 The Respondent cannot hide behind Braden’s wishes as a reason not to comply with the orders of Polowin J. Whether the Respondent or Braden agrees or disagrees with those orders, both must comply with them. It is the responsibility of the Respondent to show that he is the adult, he is the parent, and he will take appropriate steps to make sure that the access schedule in the orders is complied with. (Bolding added)
B.K. v. A.P., [2005] O.J. No. 3334
In this case, the child was 11 years of age, and the father had a custody order. The mother refused to return the child to the care of the father after being required to do so by a court order and claimed in her defence that the child refused to live with his father. Justice Mackinnon wrote the following with respect to the mother’s position:
22 The situation is different with respect to the April 13, 2005 order. Not only has the mother not returned Charles to the father’s custody, she has not made any effort to do so. In her affidavit, she states several times that Charles refused to leave her home on February 13 and has remained in her de facto custody since, by his own choosing. While she states that she has continued to encourage Charles to follow the court order, the specifics given are with respect to encouraging Charles to visit his father, at Easter and Father’s Day. Notably, he did visit his father on both occasions. There is nothing in the mother’s affidavit to show that she told Charles about the April 13 order, and that he and she must comply with it. No effort to actually deliver him or send him to his father’s, as required by that order, has been made. The comments of Chadwick J. in Fenato v. Fenato, [1999] O.J. No. 3546 (S.C.J.) (QL):
para. 15 I find it hard to understand how a custodial parent cannot control or direct an 11-year-old child unless the parent is not making a sincere effort to do so. I would expect if the father had taken a firm and more supportive stand Dominic would have returned to his mother and these incidents involving the police may never have occurred. It certainly leads one to draw the inference the father has very little control over his 11-year old son. If this is indeed the case Dominic may be completely out of control as he enters his teenage years.
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24 It is clear from reading her affidavit that the mother’s view is that Charles does not want to live with his father. It is equally clear that, given his wishes, she does not intend to comply with the court order that he do so. The law does not entitle Ms. B.K. simply to leave this up to Charles. I find Ms. B.K. in contempt of paragraph 1 of the April 13th order. (Bolding added)
Michener v. Carter, [2018] O.J. No. 2325
In this case, the children were 13 and 15 years of age. They resided with their mother in Ontario. Their father resided in British Columbia. Access between the father and the children had dwindled to the point that they were refusing to speak with him or visit with him when he attended in Ontario for that purpose. The father brought a motion seeking an order that the court find the mother in breach of orders affording the father access.
Justice J.P.L. McDermot wrote:
33 What steps does a parent have to go through to ensure that access take place? In Jackson, Chappel J. suggested four requirements for the parents to ensure that access take place. In para. 63(d) of her decision, Chappel J. suggested an inquiry as to the following four factors:
i. Did they engage in a discussion with the child to determine why the child is refusing to go?
ii. Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them?
iii. Did they offer the child an incentive to comply with the order?
iv. Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?(Godard, Supra.; Jackscha v. Funnell, 2012 CarswellOnt 10467 (Ont. S.C.J.)). (Bolding added)
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40 Whatever reason the children do not want to see their father, however, the real issue is whether the mother is taking all reasonable efforts to ensure that the access order was complied with. In the present case, I do not believe that she has. Prior to the abortive February visit, Ms. Michener deposed that, “If the children do not want to spend time with him or call him, I am not going to “punish” or “impose consequences” and if this is what the respondent interprets the term ‘reprimand’ in paragraph 49 of his affidavit I think it is inappropriate.” It appears that the most that she is willing to do is to “encourage and promote the concept of having contact with their father regularly when they can and he is available.” Later, after the failed visit, the applicant says that “I did encourage the children and told them it was okay for them to go with their father to Toronto and I was in support of it.” When I asked counsel as to whether that was the only evidence of the applicant’s attempts to force the children to go on the access visit, he confirmed that that was it.
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42 Absent from all of these things were the latter two things that Chappel J. suggested were necessary for proof of compliance with an access order affecting children who were ambivalent over a visit with their father. The applicant provided evidence of neither inducements nor disciplinary measures designed to enforce what both of these parents agreed was in the best interests of the children, which was a four-day visit with their father. Rather, Ms. Michener confirmed that she was not willing to impose any consequences on the children if they did not wish to go on a visit with their father; she said that the most that she is willing to do is to encourage the children to go on a visit with their father which is, frankly speaking, insufficient to answer the allegations that she is in breach of the February 1 consent order.
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44 I would firstly note that the reasons why the children do not want to go are not necessarily relevant to an enforcement motion where what is in issue is the efforts made by the responding party to make the access happen. It must be remembered that these parties agreed on two separate occasions that a visit between the children and their father was in the children’s best interests. Ms. Michener cannot now be heard to say that the visits may not, in fact, be in the children’s best interests when the parties previously agreed that they were. (Bolding added)”
Young-Marcellin v. Marcellin, 2021 ONSC 3026 (CanLII) at 145-157