law | Purvis Culbert Law

She doesn’t want to go on access visits. Do I still need to send her?

Posted on 9 March 2017 by Tim Culbert

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:

[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.

(emphasis added)

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:

[38] 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).

Why should you sign a Power of Attorney?

Posted on 24 November 2016 by Tim Culbert

A Power of Attorney is a legal document by which one person grants another the right to act on his/her behalf after the donor no longer has the capacity to make decisions. A Power of Attorney can be a useful estate planning tool, especially as we begin to age and become more concerned about our capacity to make decisions. It can take two main forms: 1. Financial – allowing someone to make key financial decisions for you (pay bills, sell property, etc) and/or 2. Personal Care – allowing someone to make health care decisions on your behalf (medications, treatments, residential care arrangements). In honour of November being National Alzheimer’s disease awareness month in the United States, here are some additional reasons why you may wish to consider signing a Power of Attorney:

1. Costs – It is far more cost effective to sign a Power of Attorney while you have the capacity to do so than for your family members to apply to a court to be appointed as guardians of your estate (similar to Power of Attorney) (hundreds of dollars versus thousands of dollars);

2. Time – It is quicker and easier to sign a Power of Attorney (one or two meetings with your counsel vs. many months of meetings and waiting for your family to apply to a court if you do not have a power of attorney );

3. Flexibility – A Power of Attorney can be as flexible or specific as you wish. It is often used for specific purposes over a specified period of time, such as allowing someone to sign property deeds in your absence if you have moved away or are away on vacation when your home sells.

4. Control– The Alberta Law Reform Institute notes that Enduring Powers of Attorney allow people to plan for their incapacity by choosing who they wish to make their decisions:

An EPA (Enduring Power of Attorney) enables people to plan for their own incapacity, giving them the freedom to choose someone whom they feel is most likely to act in their best interests. This sense of control over one’s life after incapacity promotes self-determination and autonomy, and enhances personal dignity. It also helps ease some of the anxiety which people feel knowing they soon lose the ability to manage their own affairs.

– Alberta Law Reform Institute, Enduring Powers of Attorney (Report for Discussion No 7, 1990) at 19-21, cited in Ann Soden, Advising the Older Client (Markham: Lexis Nexis Canada, 2005) at pages 112-113.

As always, you should consult your lawyer for specific questions regarding whether a Power of Attorney is right for you, as there are risks to choosing the wrong person to act as your POA (see my post on theft by enduring Powers of Attorney here.)

Do grandparents have access rights to their granchildren?

Posted on 23 January 2015 by Tim Culbert

In contrast to some other provincial statutes, the Family Services Act in New Brunswick considers a child’s relationship with his/her grandparents as part of the definition of “best interests of the child”:

“best interests of the child” means the best interests of the child under the circumstances taking into consideration

(a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both;

(b) the views and preferences of the child, where such views and preferences can be reasonably ascertained;

(d) the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child;

(e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with his parents;

(f) the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and

(g) the child’s cultural and religious heritage;

Section 129(3) of the Family Services Act allows for a parent or “any person” to apply to the Court for an order for custody or access on the basis of the best interests of the child test.

Since the Supreme Court of Canada case of Young v. Young, [1993] 4 S.C.R. 3, [1993] S.C.J. No. 112, courts in Canada have recognized that the “best interests of the child” test is the only test applicable to child custody disputes. Therefore, it’s technically incorrect to think of parent’s or grandparent’s rights, as they do not have rights to access; children have rights to contact with both parents and their family, as determined through the lens of the “best interests of the child” test.

In G.G. v. J.W., 2008 NBQB 338, Madam Justice d’Entremont dealt with the sole issue of whether a grandparent is entitled to specific access to a grandchild. At paragraph 26, Justice d’Entremont referred to the case of N.F. v. H.L.S. (1999) 127 B.C.A.C. 66, in which the British Columbia Court of Appeal stated at paragraph 8:

The onus in on the applicant to demonstrate that the proposed access in in the child’s best interests.
The custodial parent has a significant role. The courts should be reluctant to interfere with a custodial parent’s decision and should do so only if satisfied that it is in the child’s best interests.
It is not in the best interests of a child to be placed into circumstances of real conflict between the custodial parent and a non-parent. While the court must be vigilant to prevent custodial parents from alleging imagined or hypothetical conflicts as a basis for denying access to non-parents, in cases of real conflict and hostility, the child’s best interests will rarely, if ever, be well served by granting access.

Justice D’Entremount also referred to the Decision of the Court of Queen’s Bench of New Brunswick in Morecraft v. Morecraft (1991), 122 NBR (2d) 271 at paragraphs 26 to 29. Paragraph 26 states:

[26] While the “best interests” must remain paramount, the considerations revolving around the issue of access to third parties, including blood relatives, are far different from those involving natural parents. There is no automatic right of access to third parties. Great weight must be given to the wishes of the custodial parents and care must be taken not to unduly interfere with the parents’ inherent right to determine the course of their child’s upbringing.

Given the facts of the case—being a relationship characterized by friction and animosity between the parents and grandparents—Justice d’Entremount decided that the grandmother, G.G., had not met the onus set out in the N.F. case of proving that the proposed access was in her grandchild’s best interests.

The approaches of Justice d’Entremount in the G.G. case and the Court in Morecraft underscore a tension between the rights of parents to make decisions for their children (i.e. not to see their grandparents) and the interests of children to have a relationship with their grandparents. Given these conflicting interests, Canadian courts have decided cases regarding grandparents’ access to their grandchildren on a facts-specific basis. In “Grandparent-Grandchild Access: A Legal Analysis” (Paper Presented to the Family, Children and Youth Section, Department of Justice Canada, Her Majesty the Queen, 2003)< http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/2003_15/pdf/2003_15.pdf >, Dan L. Goldberg outlines at pages 17-21 four classifications of cases in which courts have decided on grandparents’ access to their grandchildren:

Intact families in which access was denied;
Intact families in which access was granted;
Single-parent families in which access was denied;
Single-parent families in which access was granted;

In the cases in which access was denied, the courts typically acknowledged that the parents were adults and had rights to parent their children as they saw fit. Where access was granted, the courts usually noted the grandparents were responsible individuals with strong relationships with their grandchildren, which were beneficial to the children’s development. Absent abuse or neglect, courts are hesitant to interfere with parents’ rights to make decisions regarding their children. Thus, grandparent access is best facilitated through the parents. Admittedly, this is a “perfect world solution”, which may not always exist within many family dynamics.