What Happens When a Child Refuses Parenting Time With One Parent?
When a child refuses parenting time that a court order sets out, the order continues to bind the person subject to it until it is no longer in effect. The question a parent faces is therefore not whether the order still applies, but what to do within it.
What the Order Requires While It Is in Force
The Divorce Act puts that in terms: for greater certainty, a person who is subject to an order made under it must comply with the order until it is no longer in effect. An order does not lapse because it has become difficult, and a party who files a document starting or answering a proceeding certifies that they are aware of that duty.
The duty is not only to move a child from one place to another. Parenting time, decision-making responsibility or contact that has been allocated is to be exercised in a manner consistent with the best interests of the child. Under Alberta's Family Law Act, a guardian exercises the powers, responsibilities and entitlements of guardianship in the best interests of the child.
An arrangement that is no longer workable is changed by varying it rather than by ceasing to follow it.
How a Refusal Meets Alberta's Enforcement Provisions
The other parent's route runs through Alberta's Family Law Act, and it turns on a denial of time under a time with a child clause. That clause may sit in an order made under either Act, whether interim or from a tribunal outside Alberta or otherwise. A denial of time includes the failure of a person to return a child after having spent time with the child.
On an application, the court must first be satisfied that there has been a denial of time within 12 months of the application being brought. It may then make any enforcement order that is appropriate in the circumstances.
What the court may order
The court may make an enforcement order appropriate to the circumstances. If it considers the denial excusable, it may refuse an order or limit it to compensatory time, reimbursement of necessary expenses, or a direction intended to induce compliance.
What an enforcement officer is required to do, and what they are not
Where an enforcement order directs an enforcement officer to act, the officer is not required to bring the child to the applicant if the officer determines that, in the immediate circumstances, it is not in the best interests of the child. That determination is the officer's.
Whether the enforcement route is engaged at all, and what follows if it is, is covered in when a family court order isn't followed.
Where the Child's Own Views Come In
A child's views are a factor the court considers under both Acts, and the two are worded differently.
Under the Divorce Act, the court considers the child's views and preferences, giving them due weight with regard to the child's age and maturity, unless those views cannot be ascertained.
Under Alberta's Family Law Act, the court considers the child's views and preferences to the extent that it is appropriate to ascertain them.
Both sit inside an analysis in which the best interests of the child are the only consideration, so a child's views are weighed among the factors rather than treated as deciding the outcome. Weighed with regard to age and maturity is not the same thing as an age at which a child decides: the provision connects age and maturity to the weight the views carry, and says nothing about how much weight any particular age attracts.
Separately from any court proceeding, Alberta's Act requires a guardian exercising any of the powers it lists to do so in a manner consistent with the evolving capacity of the child. That duty attaches to those powers.
What a Court Weighs About Each Parent's Part in It
The question of whether one parent is behind a refusal lands in specific factors rather than in a general assessment.
Under the Divorce Act the court considers each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse, and each person's ability and willingness to communicate and co-operate, in particular with one another, on matters affecting the child. Alberta's Act has its own co-operation factor, directed at each person to whom an order would apply. Both Acts also weigh the nature and strength of the child's relationships.
And the Divorce Act places a duty on a party to a proceeding to protect any child of the marriage, to the best of their ability, from conflict arising from the proceeding.
On past conduct, that Act sets a prohibition with one exception. In determining what is in the best interests of the child, the court is not to take into consideration the past conduct of any person, unless that conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order. So conduct that is not relevant in that way is outside what the court considers, and conduct that is relevant is not excluded by that provision. The same limit applies on an application to vary.
Changing the Arrangement, and What an Order Can Be Asked to Contain
Varying an order
Under the Divorce Act a court may vary, rescind or suspend a parenting order or any provision of one, on application by either or both former spouses or by a person other than a former spouse who is a parent of the child, stands in the place of a parent or intends to — with leave where the order does not relate to them. Before varying, the court must satisfy itself that there has been a change in the circumstances of the child since the order or the last variation of it.
Under Alberta's Act, on application by a guardian, the court may vary, suspend or terminate a parenting order after satisfying itself that a change in the needs or circumstances of the child has occurred since the order or the last variation, and then considering only the best interests of the child by reference to that change.
The two thresholds are worded differently, and each belongs to its own Act. How variation works is set out in parenting time after separation.
What an order may contain
A Divorce Act parenting order may include requirements about any means of communication between the child and another person who holds parenting time or decision-making responsibility, to occur during the first person's parenting time. It may, subject to provincial law, direct the parties to attend a family dispute resolution process. And it may require that parenting time, or the transfer of the child from one person to another, be supervised. An Alberta parenting order may contain a dispute-resolution process for future disputes about guardianship or parenting arrangements, where the people bound by that process have agreed to it.
Ask a lawyer which application, if any, fits the circumstances and the existing order.
Getting Help
The Divorce Act points two ways, and both are in its text. The parties are to try to resolve the matters that may be the subject of an order through a family dispute resolution process, to the extent that it is appropriate to do so — a process that Act defines as one outside of court, including negotiation, mediation and collaborative law.
And a legal adviser acting for a person in a proceeding under that Act is required to inform them of the family justice services known to the adviser that might assist in resolving those matters and in complying with any order, those services being public or private services intended to help people deal with issues arising from separation or divorce.
How parenting time, decision-making responsibility and guardianship fit together across the two Acts is set out in parenting, decision-making and child custody.
Talk to THEBIL Law
Contact THEBIL Law to discuss your parenting arrangement and the questions you want to address. The consultation request form can be submitted at any time, and the office makes contact to arrange a meeting.
THEBIL Law is a family law firm in Calgary at 5920 Macleod Trl SW Ste 720, Calgary, AB T2H 0K1, Canada.
Call 403-457-3128.