REMEDIES FOR FAILURE TO FACILITATE ACCESS
In the case of Scrivo v. Scrivo, 2013, ONSC 4655, the Honourable Madame Justice Donohue dealt with the enforcement of access she granted after a trial. Previously, the Mother was held in contempt of court for failing to permit the Father to have access to their child. The Mother could void the contempt order if the Father was permitted his access on a scheduled date and time.
At the day of the access, the Mother dropped off the child at the Father’s home as per the order. Instead of going into the Father’s home, however, the child walked down the street and asked his adult siblings, by phone, to retrieve him. They agreed.
Justice Donohue held that the Mother failed to void the contempt, however. Although Justice Donohue noted that the Child was estranged from the Father she also held that the Mother pre-arranged the child’s plan for pick up. Although the access did not proceed due to the actions of third parties the contempt order against the Mother continued because she failed her positive duty to facilitate the Father’s access to the child.
The Father requested withholding child support to force the Mother to comply with access orders. Justice Donohue was inclined to grant the Father’s request but she adjourned the motion to give the Mother time to assemble financial documents. Justice Donohue wanted the Mother to have a chance to prove that withholding child support would create financial hardship for the child.
Some general rules:
- If access is ordered then the custodial parent has a duty to take active steps to facilitate that access. Simply following the black letter of the law is insufficient;
- Access orders must be enforced by the parents even if the child reports that he or she does not want to have contact with the other parent;
- While it is possible to withhold child support to retaliate for failing to have court ordered access, it must be done only with the express order of the court.