My son or daughter won’t attend access visits, but we have a court order that set out a specific schedule. Now what?

A question that often comes up for parents on both sides of custody and access disputes is what should be done when a child is resistant to attending court-ordered access visits. Sometimes the parent who has primary care of the child will be faced with a situation in which they want their child to go to access, but the child doesn’t want to, and sometimes the access parent is faced with a situation where their former spouse or the child’s other parent is claiming that they simply cannot get the child to go and see them as ordered. So, what can be done in these situations?

The family courts in Ontario have generally been consistent that when a child refuses to attend access with their other parent in accordance with the terms of a court order, the parent who has the child with them should treat the situation and the child in the same way that they would do if they child were refusing to go the dentist, refusing to go to school, or simply misbehaving. Some parents will be very uncomfortable with this especially where the child is older and expresses what appear to be legitimate reasons for not being comfortable with visiting the other parent. But what must be kept in mind is that if a court order exists, the parents must follow the order. If you feel that there is a legitimate reason to alter or even suspend the access schedule that’s contained in an existing court order, then the correct course of action will almost always be to go back to court and ask that the order be changed (either temporarily, on a final basis, or both, depending on the circumstances).

In the meantime however, court orders are in place to be followed, and in the absence of a real and substantial possibility of serious risk or harm to the child accompanied by a motion to the court as immediately as possible, the courts will not look kindly on parents who simply disregard their orders. When parents take what lawyers and courts often term “self-help measures”, rather than seeking permission from the court to alter the schedule, they are usually asking for trouble.

For the Parent Who Is Trying to Get the Child to Go to Access

In a case called Jacksha v Funnell, Ontario Superior Court Justice Gordon provided parents with a simple set of three steps the court might expect a parent to take when a child is resistant to attending access:

1. Have a discussion with the child to determine why he does not want to go;
2. Engage in communication with the other parent to advise of the difficulty and discuss how it might be resolved; and
3. Offer the child an incentive to go, or some form of discipline should he continue to refuse.

As you can see, the court’s view is that a parent should first try to work with the child to see what the problem is, try to resolve that problem with the other parent directly and cooperatively, and finally offer the child an incentive, but then move toward a disciplinary approach is necessary. The Court, here, does not speak of physically forcing a child to go to access, but ask yourself how you would approach the situation if your child told you they were not going to school one morning – the courts will generally expect parents to take a similar approach in these situations.

There are at least two other considerations that a parent in Ontario should keep in mind when considering their approach to this problem:

Firstly, it simply is not enough to just tell the court that you made vague best efforts to convince your child to see the other parent, if you do end up back in court because the other parent brings a motion against you. You will want to be prepared with concrete examples of the steps you took in making every best effort to comply with the court’s order. Secondly, think about your long-term approach to the case – especially if you are still at the stage of interim or temporary orders, and litigation is still ongoing. Do you want to demonstrate to the court that you are the parent who encourages your child to have a positive relationship with the other parent, and who consistently fosters that relationship, or do you want to be seen as the parent who obstructs the relationship, or possibly even engages in some form of alienating behaviour? In all but the most extreme cases involving the most serious inappropriate or harmful behaviour by the other parent, the courts in Ontario will be looking to the parties to at least attempt to work together, and will want to see a parent who has primary residence or care of a child to be encouraging about the child’s relationship with their other parent.

If you believe that there are legitimate reasons for your child to not see their other parent, or if you would like advice specific to your situation about what steps you might take if your child is resisting going to access visits, you should contact a family lawyer in your area for advice before deciding what action to take. For London, Ontario parents in need of family law advice, you can call our office at 519-488-5263 to set up a consultation.

For the Parent Who is Being Told the Child Won’t Go to See Them

Being the parent who sees their child less frequently – perhaps on weekends, or holidays, or evenings during the week – can be difficult. The situation becomes even more difficult when your child’s other parent is telling you that the child does not want to see you. In some cases, you might go to pick the child up only to be turned away, or the other parent might threaten or take unilateral action to reduce or cut off your access.

If the other parent is contacting you about these concerns, it is important to be as cooperative as possible. As difficult as the situation is, remember to remain calm, and focused on hearing out the other party’s concerns. Again, parents will want to demonstrate to the court that they can work with the other parent cooperatively – especially if the other parent is making a claim for sole custody that you disagree with. Sometimes a child will express sadness or frustration at an access parent’s perceived lack of interest in including the child in certain activities, or they might not enjoy spending time on the same activities or with the same people as the parent does. Consider whether trying changes to the routine or activities that you have been planning for your child might help.

Where open and civil communication does not improve the situation, or if the other parent is taking self-help actions that contravene your court order, or will simply not work with you, then you should certainly contact a family lawyer for advice on your options and next steps. Again, for London, Ontario parents in need of family law advice, you can call our office at 519-488-5263 to set up a consultation.