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

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).

It’s a Terrible Life: People involved in custody disputes should heed this Ontario Judge’s words!

1. Justice Alex Pazaratz, an Ontario judge known for his candid and creative writing style, recently blasted two parents involved in a bitter custody dispute over spending a combined $500,000 during the course of the custody litigation when the issues could have easily been resolved between the parties years earlier. Here is a link to a Toronto Sun article referring to this case:

http://www.torontosun.com/2016/03/09/judge-blasts-warring-parents-who-squandered-500000-on-custody-battle

A copy of this case, entitled Jackson v Mayerle, 2016 ONSC 72 (CanLII), is available for free here:

http://www.canlii.org/en/on/onsc/doc/2016/2016onsc72/2016onsc72.html?resultIndex=1


 

2. I recommend all individuals thinking about embarking on a custody battle read this case, especially the following comments made by Judge Pararatz:

CONCLUDING COMMENTS

759     This was the worst type of custody case.

a.The evidence focussed on the bad rather than the good.

b. On who shouldn’t get custody, rather than who should.

c. We spent 36 days debating which parent we have to guard against.

d. Rather than focussing on how we protect and reassure a little girl who didn’t want her parents to be doing any of this.

e. That could have been a brief, pleasant and productive discussion.

760     There’s no doubt the Respondent will be deeply disappointed with the result.

761     But I’m disappointed too. As judges, we all are.

762     Somehow, no matter how hard we try, we don’t seem to be getting the message out to separating parents:

a. Nasty doesn’t work.

b. Withholding the child doesn’t work.

c. Sarcastic e-mails don’t work.

d. Bad-mouthing the other parent doesn’t work.

e. Twisting the child’s life to create a new status quo…doesn’t work.

f. Selfish decisions which may be emotionally satisfying in the short term, never look good in a courtroom.

763     In the classic Christmas movie “It’s a Wonderful Life” there’s an extended fantasy sequence where Jimmy Stewart anguishes over had badly things would have turned out if he’d made a reckless, impulsive decision.

764     Perhaps family court should fund an instructional movie about this type of custody battle. “It’s a Terrible Life.” There could be a fantasy sequence about how happy a child might have been. If only…

 


3. Other notable quotes from Judge Pazaratz quoted by Michele Mandal in the Toronto Sun article are as follows:

Justice Alex Pazaratz’s judgments are considered a must-read by family lawyers.

His literary prowess can be traced back to his days as a newspaper intern before entering law school. A few of his compelling quotes:

“Breaking Bad, meet Breaking Bad Parents,” he wrote about another case in 2014. “The former is an acclaimed fictional TV show … The latter is a sad reality show playing out in family courts across the country.

“Breaking Bad Parents: When smart, loving, caring, sensible mothers and fathers suddenly lose their parental judgment and embark on relentless, nasty litigation, oblivious to the impact on their children.

“Spoiler Alert,” Pazaratz continued. “The main characters in both of these tragedies end up pretty much the same. Miserable. Financially ruined. And worst of all, hurting the children they claimed they were protecting.”