BC Parenting Order Issues: Failure to Abide by Access Order

A BC parenting order can deal with family law matters such as access and contact with a child. But what are the consequences for failure to comply with a BC parenting order? For example, what if one parent continually thwarts the other parent’s access and time with the child? If a BC parenting order is not being followed, then the court can take action. BC courts have a range of tools to deal with situations where one parent fails to follow a court order (or agreement) about time with a child. On the extreme end of the range, the courts have held that refusing to abide by an access order can constitute contempt.

What is contempt?

A finding of contempt is the most drastic enforcement mechanism available to the court. It opens the door to a range of sanctions, including a fine or imprisonment. A finding of contempt requires proof that there has been wilful breach of a clear and unequivocal court order and it must be proven on the criminal standard, beyond a reasonable doubt. There are various other remedies available to the court to enforce a BC parenting order or to sanction breach of a BC parenting order, even if the failure to abide by an order does not rise to the level of contempt. In particular, the BC Family Law Act gives the court tools to deal with situations where one parent fails to follow through a court order (or an agreement) about time with a child. However, it is important to note that it is not necessary for the court to use those tools before a finding of contempt can be made.

Contempt of a parenting order: A case example

The court made a finding of contempt against the mother in Karar v. Abo-El Ella, 2016 ONSC 7926, which can best be described as a high-conflict divorce case. The spouses separated on January 11, 2016, following which they were involved in almost continuous motions involving their children, a seven-year-old daughter and a three-year-old son. The Children’s Aid Society, police, and other support agencies had considerable involvement with the family and much judicial time had been spent trying to resolve the family’s issues. As a result of criminal domestic assault charges against the father which had not yet come to trial, direct contact between the ex-spouses was restricted. Consequently, other family members were involved in pick-up and drop-off to facilitate the father’s access visits with the children.

In September 2016 ordered that the father was to have unsupervised access visits and that a custody and access assessment was necessary. The mother subsequently provided false information which delayed the appointment of a court-ordered custody and access assessor and then further delayed compliance with the September court order by bringing an unsuccessful urgent motion in front of a different judge. The mother then hired a security guard to supervise access, thus doing precisely what the court had declined to order in September (there being no credible evidence justifying the need for supervised access). Since the September order was made, access gradually ceased.

In December 2016, the father brought a motion seeking to find the mother in contempt of court for breaching the September order. The mother claimed that the seven-year-old daughter and to a lesser extent the three-year-old son were afraid of their father and refused to go on access visits. She claimed to be doing everything in her power to encourage them to spend time with their father but accused him of bizarre and belligerent behaviour which made it impossible to fully comply.

Court finds parent in contempt for failing to abide by access order

The court made a finding of contempt against the mother in Karar v. Abo-El Ella. Contrary to the mother’s assertions, the court found that the mother “attempted to frustrate the father’s access and his relationship with his children as a result of her negative feelings for him.” Far from making all reasonable efforts to cause the access visits to occur, the evidence showed that the mother continued to impede that access. The mother was leaving it up to the seven-year-old to decide whether or not to go on access visits. The court held that refusing to abide by the access order by leaving it up to the child amounted to effectively abandoning her parental authority on the issue of access:

[17]           Once the court has determined that access is in the best interests of the child, the parent cannot leave the decision to comply with the access order up to the child.  While parents are not obligated to do the impossible, they are required to do all that they reasonably can to comply with the order.  Failure to take concrete measures to apply normal parental authority to have the child comply with the access order can constitute contempt. This is particularly appropriate if the failure comes on the heels of findings such as those made by Justice Beaudoin in September.

In addition, despite the clear direction of the court that access was to proceed on an unsupervised basis, the mother hired a security guard to supervise access to thwart that access and continued to impede the completion of the custody and access assessment. The court also found that the mother encouraged or permitted her family members to exacerbate the situation by telling the children that the father killed the family pet.

Penalty for contempt of a BC parenting order

As noted above, there are various penalties and sanctions for contempt of a BC parenting order. It will be important for the court to craft any remedy so that it does not inadvertently punish the children or expose them to further conflict or risk. With a view to that objective, the court in Karar v. Abo-El Ella made the finding of contempt but adjourned the question of penalty to give the mother an opportunity to “purge” her contempt. Essentially, the court gave the mother one more chance to comply with the existing access order and permit the custody and access assessment to be conducted. The court urged the parties to find a resolution that operates in the best interests of the children and promotes positive access visits.

Take home point on breach of BC parenting order

There can be severe consequences for failure to comply with a BC parenting order. Once the court has determined that access is in the best interests of the child, a parent must make all reasonable efforts to cause the access visits to occur and the parent cannot leave the decision to comply with the access order up to the child. Where the conduct of a parent is particularly egregious, failure to comply with an access order can constitute contempt.