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The Ontario Court of Appeal Redefines “Spouse”
A Commentary on Climans v Latner, 2020 ONCA 554
By Jonathan Martin
The law of spousal support in Canada has changed significantly over the past few decades. Once reserved for legally married individuals, spousal support obligations can now arise from a variety of different relationships, whether they produce children or not. In Climans v Latner, 2020 ONCA 554 [Latner], the Court of Appeal for Ontario endorsed the view that those in a long-term romantic relationship who do not cohabit or produce children may still be eligible for spousal support at the termination of the relationship.
Lisa Climans and Michael Latner were in a romantic relationship for almost 14 years, starting in 2001. When they met, Lisa was a retired model and marketing employee for a construction company earning about $5,000 per month. Michael Latner was a multi-millionaire businessman. Throughout their relationship, the pair maintained separate homes in Toronto and never moved in together. They kept their finances apart and never owned any property together. Neither self-reported on their income taxes that they were living in a common-law relationship. They had no children together. Both had children from previous marriages.
Mr. Latner was very generous to Ms. Climans throughout their relationship, to the extent that Ms. Climans quit her job shortly after they started dating and never worked again the entire time they were together. They would stay together at Mr. Latner’s cottage in July and August of each year. They spent weekends in Florida in the winter and occasionally for March break. Mr. Latner proposed to Ms. Climans several times but never married, partly because Ms. Climans refused to sign any prenuptial agreements. In many of his letters, Mr. Latner referred to Ms. Climans as Mrs. Latner.
The Ontario the Family Law Act, RSO 1990 has two different definitions of spouse. For most of the Act, “spouse” means legally married. However, for spousal support, section 29 defines “spouse” as any two people who have cohabited for at least three years or were in a relationship of some permanence that produced a child. New Brunswick’s Family Services Act, SNB 1980, c F-2.2 does not use the term spouse for non-married individuals, but still provides that support must be paid if the parties live continuously together for at least three years or have a child together in a relationship of some permanence living together. Fathers in New Brunswick are also liable to pay support to the mother of their child, regardless of their relationship (over and above support for the child under the Guidelines), should there be need and ability to pay.
The issue in Latner had to do with the definition of “cohabit”, a term defined in the Ontario Family Law Act as meaning to “live together in a conjugal relationship, within or outside of marriage”. It could arguably be said to have the same meaning as the provision for support at section 112(3) of the New Brunswick Family Services Act, which provides support for those “who have lived together continuously… in a family relationship”.
According to the legislation, two elements are needed in order to fall under the category of living continuously in a conjugal or family relationship. You need (1) to live together, and (2) be in a conjugal or family relationship. In most cases, whether parties are living together is easy to discover. What constitutes a “conjugal or family relationship” presents with more difficulty as you are essentially trying to reconstruct the essence of marriage itself. The courts have over time come to accept a list of criteria that indicate the existence of a conjugal relationship, while stressing that all of them need not be present. These include: sexual and personal behaviour, services, social activities, economic support, children, and the social perception of the couple” (M. v. H.,  2 S.C.R. 3, at paras. 59-60).
On occasion, the courts have had to turn their attention to the question of what constitutes “living together”. It is generally a straight forward exercise, ruling out other explanations for sharing the same roof, such as being roommates or in a landlord/tenant relationship, etc. Sometimes, however, the parties don’t share the same roof. Although this would on the surface appear to bar a claim for spousal support, life is rarely quite that simple. In Campbell v. Szoke  O. J. No. 3471 (Ont. S. C. J.) at para 52, Madam Justice Karakatsanis, now judge of the Supreme Court of Canada found that “the fact that parties maintain separate residences does not prevent the finding of cohabitation. The court must look at all of the circumstances and consider the reasons for maintaining another residence, such as to facilitate access with one’s children.” This approach makes sense since it would be unreasonable to require that couples always live together. Married people will often live apart for a variety of reasons, including work, immigration barriers, or to care for family members. However, one would expect that the reason for not living together would have some element of necessity to it, as opposed to a mere decision by the parties not to live together. Campbell, however, found that parties who had chosen not to live together mainly because one of them did not want the legal consequences that come from that, had in fact been living together. Several lower court decisions had followed the approach in Campbell. Latner now provides an appellate decision endorsing this line of jurisprudence, which arguably dispenses with the first part of the legislative test altogether.
The decision in Latner was not reached without some difficulty. The legislation is, after all, clear that the parties need to live together. The trial judge admitted that “there needs to be some element of living together under the same roof. The very definition of “cohabit” requires that the parties live together in a conjugal relationship.” The trial judge however found the necessary elements of living together in the various vacations and alternate weekends the parties spent under the same roof. It was not without some difficulty that the Court of Appeal justified this conclusion. A crucial question in determining how long support must be paid is how long the parties cohabited. The Court of Appeal overturned the lower court finding that the parties had “cohabited” during the entire length of their 14-year relationship, since the conclusion that they had cohabited at all was in essence a legal conclusion based on the entirety of their relationship, and not a discreet finding of fact. They had never in fact lived together. The Court of Appeal could therefore not support the trial decision that support should be payed indefinitely based on a 14-year cohabitation. Interestingly, it never provided its own finding of how long the parties cohabited. The Court of Appeal sidestepped this question and ordered that spousal support be payable for ten years. It would have been interesting if the Court had attempted to count or estimate the number of days the parties had actually spent under the same roof, and ordered support based on that time period alone. Perhaps 4 or 5 years of support would have been ordered under that approach.
The decision in Latner provides an important precedent for the proposition that romantic couples need not physically live together or have children to claim for spousal support at the end of the relationship. If there is significant and ongoing financial support during the relationship, the parties present as a couple, and they spent any amount of time under the same roof, they could be found to have been “living together in a family relationship”. Given the amounts at issue, it is likely that one of the parties will seek leave to appeal to the Supreme Court of Canada. Stay tuned for future developments.
In a post on June 1, 2018, I discussed proposed amendments to the Divorce Act that, if passed, would be the first major changes to the current Act since 1985. I recently attended a Family Law Conference, at which Stéphanie M. Cormier, a lawyer at Actus Law in Moncton, New Brunswick (and Chair of the CBA Family Law group) presented in more detail on the amendments to the Divorce Act (and several other Acts) proposed in Bill-C78. As of April 11, 2019, this bill was in its second reading in the Senate. The focus of this post will be solely on the proposed amendments to the Divorce Act, as these changes are voluminous enough to generate significant discussion. Also, I will not go through each and every amendment in detail. Should you wish to read the Bill in its entirety, you can visit the link here to the House of Commons website version of same. Also, here is a link to the current status of this bill.
Firstly, I wish to note that I maintain the same opinions expressed in my June 1, 2018 post that the proposed amendments to the Divorce Act are mostly positive. For example, the amendments include adding a non-exhaustive list of criteria with respect to best interests of the child. This is a positive change in and of itself, as family law practitioners (in New Brunswick anyway) have traditionally had to utilize the criteria contained in the caselaw and in the Family Services Act. Oddly enough, previous versions of the Divorce Act did not include a list of criteria for best interests of the child, even though all decisions regarding care and access to children is based on same. In addition, the proposed amendments would replace terminology related to “custody ” and “access” with “parenting” time. This is a positive change, as terms referring to custody (i.e. “joint” vs. “shared” custody in particular) confuse many people in my experience and these loaded terms often create unnecessary division between separating parents. Moreover, persons other than spouses may apply for contact orders with the children. This is a positive amendment, which follows recent trends in provincial legislation allowing grandparents and other persons to apply for custody or access to children. (for example, see previous posts here , here and here.)
In addition, the amended Act includes provisions to assist courts with divorces that involve family violence. This recognizes an unfortunate pattern in recent years of increased instances of domestic violence in family law disputes.
There are also provisions in the amended Act that provides a framework for dealing with jurisdiction, where a court in one province is dealing with a parent that removes a child from that province.
While there are many positive amendments to the Act, there are some amendments that simply codify what the common law already is. For example, there are new provisions dealing with the duty of legal advisers to discuss reconciliation and alternatives to court with clients. Most family lawyers likely already discuss these options with their clients. Also, there are new provisions dealing with relocating with a child of marriage. These amendments require a parent wishing to move with a child to notify the other parent “in writing at least 60 days before the expected date of the proposed relocation and set out”:
If the child spends the majority of time with the moving parent, then the onus shifts to the responding parent to establish why relocation would not be in the best interests of the child. At paragraphs 26-48 in Gordon v. Goertz,  2 SCR 27, 1996 CanLII 191 (SCC), the preeminent case regarding mobility in Canada, the Supreme Court dealt with arguments for and against a presumption in favour of the moving parent. On the one hand, the Court cited the following arguments in favour of this presumption:
- the principal residence of the child is a normal incident of custody and the court should accordingly defer to the custodial parent (para 34);
- the personal freedom of the custodial parent requires that he or she be permitted to decide where to live (para 34);
- would make outcomes of variation applications more predictable (para 34);
The Court deals with each of these arguments in succession and ultimately concludes that if Parliament wished that decisions would be made in this way, it would have codified same in the Divorce Act (as it has now): “Had Parliament wished to impose general rules at the expense of individual justice, it could have done so.” (para 38). The Court further notes at paragraph 38 that a presumption in favour of a custodial parent would do little to minimize conflict. Indeed, it may do the opposite and increase conflict.
Between paragraphs 40-48, the Court considered arguments against the presumption in favour of custodial parents in mobility cases:
- the child’s best interests may no longer be protected or advanced through the earlier order (para 40);
- presumption should as matter of principle be introduced in all matters involving variation? (para 41);
- Parliament placed a duty on deciding best interests of children on the judge, not the custodial parent (para 42);
- could render inquiry more technical and adversarial than necessary (para 43);
- Most importantly, presumption could impair the inquiry into the best interests of the child … in favour of parent’s wishes (para 44);
This final argument against the presumption is the most concerning, as the proposed amendments may unnecessarily complicate mobility cases by focussing too much attention on the parents rather than the children. As the Supreme Court stated in Goertz, supra: “But to begin from the premise that one parent has the prima facie right to take the child where he or she wishes may unduly deflect the focus from the child to its parents.”
Time will only tell what kind of impact these amendments will have, or whether they are simply codifying trends that already exist in cases across Canada. However, as with all legislation, it will be incumbent on lawyers to pay attention to how these changes are interpreted and implemented in various jurisdictions across the country. These amendments appear to be a reality and are likely to come into force in the not-too-distant future. Therefore, we will continue to review the proposed amendments and would be happy to answer any questions you may have regarding same.
On May 22, 2018 the Federal Government introduced Bill C-78, which proposes changes to the Divorce Act. The proposed amendment would be the first significant revision to the Divorce Act since its enactment in 1985.
The changes to the Divorce Act are designed to implement a more “child-focused” approach to family law disputes, rather than an adversarial approach. By removing language like “custody” and “access,” and encouraging dispute resolution, the Act is designed to better promote the interests of the child.
The Minister of Justice, Jody Wilson-Raybould, summarizes the changes as follows:
(a) replace terminology related to custody and access with terminology related to parenting;
(b) establish a non-exhaustive list of criteria with respect to the best interests of the child;
(c) create duties for parties and legal advisers to encourage the use of family dispute resolution processes;
(d) introduce measures to assist the courts in addressing family violence;
(e) establish a framework for the relocation of a child; and
(f) simplify certain processes, including those related to family support obligations.
If this Bill passes in the House of Commons, the legislation will likely come into force in 2019.
Thus far, most family law practitioners and commentators view the proposed changes positively. However, some state the impact of these amendments will depend on how courts across Canada would apply the new provisions. We note that the common-law in Canada already requires the courts to apply a “child-centric” test and only consider the “best interests of the child” when making decisions regarding custody and access (or “parenting time” rather) (Young v. Young,  S.C.J. No. 112). However, the proposed changes to the terminology should help reduce the “win/lose” mentality of many individuals involved in family law disputes.
To view Bill C-78 in its entirety, check out the link below:
To view the Divorce Act (1985), check out the link below:
Not a week goes by that I do not hear the question: “can I pay child support directly to him/her (the child)?”. This question is usually followed by a discussion of why he or she (the other parent) is not spending the child support on the child. In this parent’s theory, the other parent is using the child support funds to go on extravagant trips and other luxury items that are not related to the child’s care. Hence, “why can’t I just pay him/her directly? Then atleast I will know that the funds are going toward the intended purpose.”
The answer to this question is that courts rarely allow child support payments to be made directly to a child; it is the exception rather than the rule. Courts in Canada have stated that compelling reasons must exist for payments to be made directly to a child. In Mylrea v. Benoit, 2003 CanLII 1975 (ON SC), the Ontario Superior Court responded as follows to a father’s request to set up a trust to pay child support directly to the children:
 Mr. Mylrea requests the right to limit the amount of child support that goes directly to Ms. Benoit to the sum of $248.00 each month, with the balance to be paid into a trust account for the benefit of the children. Again, even if I were inclined to do that – and I am not in the least – authority prevents me from doing so. In Simon v. Simon (2000) 1999 CanLII 3818 (ON CA), 1 RFL (5th) 119 (Ont.C.A.), MacPherson, J.A., in delivering the judgment of the court, said this (at page 134 of the Report):
It may be that in some cases a court imposed trust to secure funds for a child’s future care and education would be appropriate. However, in my view, absent a good reason for imposing a trust, the court should not do so. The presumption should be that a custodial parent will do his or her best to provide for both the child’s immediate needs and his or her future care and education. Unless there is strong evidence establishing the need for a trust (e.g. the misuse of support payments by the custodial parent) I see no reason to interfere with the way in which the parent balances the present and future needs of the child in his or her custody.
In L. B. L. v. S. B., 2010 NBQB 339 (CanLII), Justice Walsh of the Court of Queen’s Bench of New Brunswick dealt with a situation where the payor mother was attempting to create her own system of child support payments to her child on the grounds that the father wasted funds meant for the child:
 On the totality of the evidence it is clear that the mother cannot stand the thought of paying child support directly to the father, despite the absence of any cogent evidence that the father was wasting the sums that he did receive through garnishment. By any means, by any claim, the mother has now sought to create her own system, to permit her to directly support or reward the children for her own purposes, to ignore the law’s requirements. The receipted claims she made in this case and the claims she has filed with Revenue Canada constitute clear evidence of her present approach. The irony is that the vast majority of the arrears that were terminated in May 2009 were for a period when the mother was having little, if any, contact with the children, and the children would appear to have forever lost this money owed to them (See: Beninger v. Beninger 2009 BCCA 145 (CanLII)).
 In these circumstances I apply Swiderski v. Dussault:
While D.B.S. [v. S.R.G. et. al., 2006 SCC 37 (CanLII)] at para. 109, opens the theoretical possibility that the payor parent can justify himself by showing total payments equivalent to the Guidelines amounts, this, I suggest, presupposes candour, openness and satisfactory proof of the amounts. None is present in this case.
There are at least two reasons why payors should not be able to create their own support regimes. The first is that the receiving parent usually has custody, and must be the one to make decisions about the child’s expenditures. A private unilateral scheme operated by the payor can be a method of control which undermines the authority of the custodial parent. The second reason is that the payor is in sole possession of the information about direct payments. Unless the payor is forthcoming about such payments in a timely way, the payee is at the mercy of the payor’s record-keeping …
(2009 BCCA 461 (CanLII),at paras. 38, 39) (emphasis added)
These cases stand for the proposition that child support is meant to maintain a child’s permanent home and to cover the incidentals that a custodial parent provides to a child (see Armaz v. van Erp, 2000 CanLII 22585 (ON SC) ). I often explain it this way to clients: just think of how much you might spend on the children or other incidentals if you were still living in the same home with the other parent. Wouldn’t it likely be more than you are spending right now? And regardless of whether these funds go directly toward the children or not, there are certain expenses the other parent must pay to keep the children’s quality of life similar to what they would have experienced if you were living with the children, correct?
As stated earlier, there are some exceptions to this rule, such as when the parents’ relationship is extremely acrimonious and the child lives away at school (see B. (T.T.) v. D. (P.H.), 2014 NBQB 164).
In this week’s installment of our Curious Case series, we take a look at the Ontario Superior Court of Justice case of Bruni v. Bruni, 2010 ONSC 6568. As stated in our last curious case post here, real life is often stranger than fiction. This is one of those cases where even the Judge in this case could not withhold his frustrations with the ways in which these parties interacted with one another. While entertaining, the Judge’s comments throughout this case serve as a stern warning to family law litigants to have some modicum of respect for one another.
Catherine and Larry Bruni separated in 2010 after an 11 year marriage. While in committed relationships with other people, the two separated individuals absolutely loathed one another. There was nothing out of bounds for this couple, from death threats to alienating their children, B and T, against each other.
Larry sought to set aside the child support provisions in their separation agreement because he felt that Catherine’s partner, Sam, was able to support her and the children. Larry also sought an equalization of net family property. As later stated by the Judge, Larry neglected to read the entire Separation Agreement resulting in disadvantages such as, property rights, rights to his children, and even the rights to independent legal advice.
Catherine responded by requesting variation of the separation agreement by amending child support and access provisions, seeking spousal support, and acquiring contributions to extraordinary expenses.
Catherine would often threaten Larry by stating that “the Hell’s Angels would be knocking on his door at any moment” or that” her family members were on their way to kill him”. She even took matters into her own hands by trying to run him over with her vehicle.
On the other hand, Sandra, Larry’s significant other, refused to allow B to contact her mother while in the care of her and Larry, stating that Larry’s time with his children was his and not Catherine’s.
Furthermore, Justice Quinn noted at paragraph 70 of his decision that “[o]n 14 occasions, within 18 months, the parties drew the police into their petty disagreements — a sad commentary on their inability to get along and a shocking abuse of the Niagara Regional Police Service.”
During their trial, Catherine and her partner, Sam, continuously uttered threats in the court room directed towards Larry.
The Judge dismissed Larry’s requests and partially allowed Catherine’s requests by making small changes to the Separation Agreement including typographical errors and the amendments to the amount of child support Larry had to pay.
The judge felt that it had been Larry’s responsibility to read the entire Separation Agreement before signing, and it is due to his own neglect that he is now facing these misfortunes.
JUDGES NOTES WORTH READING:
- “A finger is worth a thousand words and, therefore, is particularly useful should one have a vocabulary of less than a thousand words.”
- “When the operator of a motor vehicle yells “jackass” at a pedestrian, the jackassedness of the former has been proved, but, at that point, it is only an allegation as against the latter.”
- “I confess that I sometimes permit a lengthier hiatus than the schedule of the court might otherwise dictate in order to afford the parties an opportunity to reflect on the trial experience, come to their senses and resolve their difficulties like mature adults. It is touching how a trial judge can retain his naivety even after 15 years on the bench.”
- It takes a special level of audacity to utter threats under the roof of the Court House.
- I gather that this is Larry’s version of the Big Bang Theory.
- My personal favourite excerpt, which is quoted in full:
 Some family trees have more barren branches than others.
 Larry testified about the many death threats he received from Catherine and members of her family around the time of, and in the months following, separation. I will mention some of them.
 In September of 2006, Larry went to live with his father “for a couple of days” to “clear my head”. When he returned to the matrimonial home, the locks had been changed. Larry stated in evidence: “Catherine didn’t want me on the property and her family threatened to have me killed.” [page260]
 Larry gave evidence that, less than one month later, Catherine “Tried to run me over with her van.” [See Note 6 below]
 On November 21, 2006, Catherine demanded $400 from Larry or her brother was “going to get the Hells Angels after me”. [See Note 7 below]
 On February 9, 2007, Catherine told Larry that she wanted him to sign adoption papers so that Sam could adopt their children. [See Note 8 below] Said Larry, “She threatened me with her brothers and Hells Angels again.”
 On August 13, 2007, Catherine’s niece (Donna), telephoned Larry “and told me I will get a bullet in my head if I don’t sign the adoption papers. She called back later and told me I’m as good as dead.” She called a third time, “to tell me her father and uncles are coming to kill me”. [See Note 9 below]
 The next day, Catherine telephoned Larry and said that she “wanted my truck or her brother and the Hells Angels are coming to get it and me”.
 On October 18, 2007, a nautical theme was added. According to Larry, “Donna Taylor, Catherine’s sister-in-law, yelled out her window that I was going to be floating in the canal dead.”
 As can be seen, Catherine and her relatives are one- dimensional problem solvers.
If you’re interested in taking a look at this curious case for yourself, here’s the link to the full decision!
The New Brunswick Government recently amended Section 129(3) of the Family Services Act to consider other parties, including grandparents’ access to their children. Section 129(3) of the Act used to state that “upon application the court may order that either parent or any person shall have access to a child”. The New Brunswick Court of Queen’s Bench referred to this section in cases such as, G.G. v. J.W., 2008 NBQB 338 and Morecraft v. Morecraft (1991), 122 NBR (2d) 271 regarding whether grandparents have rights to access their granchildren. In GG, supra, Madam Justice D’Entremont referred to Morecraft, which stated “[t]here is no automatic right of access to third parties“. In an earlier post (see here), I noted the difficulty the wording of section 129(3) posed to questions regarding grandparent’s access to their grandchildren.
On May 5, 2017, the New Brunswick Government passed the bill–An Act to Amend the Family Services Act. This Act essentially replaces the current section 129(3) with the following:
129(3)Repealed: 2017, c.22, s.1
Separation and divorce can be painful and confusing for all parties involved. This is especially true for the children of separating couples.
It is important to recognize that you are not the only one hurting while you are going through a divorce. Children often get caught up in arguments and discussions between parents. For the Sake of the Children offers an informative program that helps to educate separating parents about the impact of certain actions on their children. The program reminds us that children are aware of more than we sometimes realize and that it can be very difficult for them to process painful and confusing information, in a healthy way, without the proper support and guidance. In addition, it can be difficult for parents to avoid the temptation to involve their children in their disagreements. For the Sake of the Children can help you to put your differences aside and focus on what really matters–the children!
In Manitoba, it is mandatory for separating parents seeking custody agreements to attend a similar educational program. Here in New Brunswick, however, the program is offered for free to any interested party, but it is not mandatory.
I have personally seen how parents justify using their children as pawns in their battle against eachother. It is not pretty and will ultimately not endear you to a Judge. Remember the words of Ontario Judge Alex Pazaratz in a previous post here.
See below to view the instructional videos shown during the For the Sake of the Children program:
Children: The Experts on Divorce (15 minutes)
Divorce and Separation: Legal Considerations (19:44 minutes)
Vignette #1: Miguel (The Messenger) (7 :27 min.)
Vignette #2: Nathan (The Exchange) (3 :00 min.)
Vignette #3: Denise (The Haircut) (6 :39 min.)
Vignette #4: Jessie (Mom’s house – Dad’s house) (9:41 min.)
For more information, or to register for the program, check out the following links:
- Should For the Sake of the Children or a similar program be made mandatory for parents who wish to separate in New Brunswick?
- Can you think of any issues that may arise with requiring all parents to attend the program before separating and implementing custodial agreements?
The New Brunswick Provincial Government recently announced that it intends to amend the Family Services Act to include consideration of grandparents in custody and access matters. Here is a link to the press-release for this announcement. Currently the Family Services Act allows “either or both parents or any person, either alone or jointly, with another” to be granted custody of a child. (emphasis mine)
The “any person” has been used in the past to include grandparents, but as you may recall, I wrote in a previous post about the difficulties grandparents face in seeking access to their grandchildren (https://www.purvisculbertlaw.ca/do-grandparents-have-access-rights-to-their-granchildren/. ) Essentially, parents are–rightfully so I might add–the primary decision makers for their children. Therefore, absent serious reasons for replacing a parent’s role as primary decision maker (i.e. abuse, neglect), access decisions typically flow through the parents. If parents do not wish for their children to see their grandparents, then it is difficult for Courts to order access.
One key question about the proposed changes will be: Just how will the Provincial Government include reference to grandparents in the Family Services Act? The answer to this question will help determine how beneficial the amendments will be for grandparents involved in custody disputes. As noted in my earlier post, courts apply the “best interests of the child” test to custody matters, so how further inclusion of grandparents in the equation will affect the outcome of custody disputes will depend on how the changes require judges to consider grandparents more than they do already! (see G.G. v. J.W., 2008 NBQB 338 and Morecraft v. Morecraft (1991), 122 NBR (2d) 271 mentioned in prior post).
Overall, however, this is a welcomed announcement for grandparents. The proof will be in the details and the implementation of the proposed changes.
Like all family law issues, the question of whether to send a child on an access visit when the child expresses she does not want to go is fraught with difficulties. Courts have determined that the answer is ultimately fact specific. In Geremia v. Harb, 2007 CanLII 1893, Justice Quinn held that a custodial parent must do everything possible, even physically forcing the child, to ensure that the child attends access visits. He stated at follows at paragraph 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.
At paragraph 38 in Germania, Quinn J. quoted Zuber J. in Singer v. Singer regarding situations where a parent is not actively denying access but the child does not wish to go and the parent is not forcing the child to go with the other parent:
 What about cases where the custodial parent insists that he or she did not wilfully refuse access to the other parent but, instead, the child refused to go on the access visit? Two cases were cited by Mr. Wilson on this issue. The first one is Singer v. Singer (1974), 17 R.F.L. 18 (H.C.J.), where a father complained that the mother refused to comply with the terms of an access order. Zuber J. commented, at p. 19: [Counsel] has cited me an American authority, but it sounds very sensible to me and I would be prepared to follow it, that the mere whim of a child, that the child’s preference cannot be the governing factor in these matters.
In L.C.M. v. B.A.C., 2010 NBQB 127 (CanLII), Walsh J. of the New Brunswick Court of Queen’s Bench quoted paragraph 44 of the Germania case and stated, “In my opinion those comments have application to the modified circumstances in the present case. It cannot be forgotten that S. is only 7 years old. ” However, Walsh J. noted that while the mother’s failure to send the child would normally be of great concern, given the father’s behaviour (unsubstantiated allegations of sexual misconduct) and the mother’s contributions to the alienated situation, an order for contempt was not appropriate. Walsh J. considered the best interests of the child and granted sole custody of the child to the mother but with unsupervised access to the father.
What stands out in these cases is that there are no “hard and fast” rules about whether to send a child on access visits or not. However, absent satisfactory reasons for not sending a child, Justice Quinn’s comments in Germania are instructive: “the job of a parent is to parent.” (emphasis added) In other words, both cases stand for the proposition that custodial parents should not refuse to send children on access visits based on the mere whims of the children in stating that they do not wish to go, unless there are substantiated reasons for refusing to do so. Another key takeaway from these cases is that parents who do not make reasonable attempts to ensure that children attend access visits may face allegations of contempt of court. (see for example, Cashman v. Cashman, 2014 ONSC 3581 (CanLII), distinguishing Germania but providing an instructive discussion of civil contempt in family law matters).