Contact with a child

Section 60 deals with changing, suspending or terminating order respecting contact and reads as follows:

Changing, suspending or terminating orders respecting contact

60 On application, a court may change, suspend or terminate an order respecting contact with a child if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.

Explanation from the Ministry of Justice

Section 60 carries over from s. 20 of the Family Relations Act the need to establish a “change in circumstance” to change an order respecting contact.

Commentary

Section 60 elaborates on the earlier requirement “if circumstances have changed since the order was last made” set out in s. 20 of the FRA and expands it to the court being satisfied that since the making of the order there has been a “change in the needs or circumstances” of a child.

A person with contact may also apply under this section to vary a contact order on being notified of a guardian’s intention to relocate with the child.

Sections 61 through 64 of the Family Law Act deals with the compliance respecting parenting time and contact with a child.

Denial of parenting time or contact

61 (1) An application under this section may be made only

(a) by a person entitled under an agreement or order to parenting time or contact with a child, and

(b) within 12 months after the person was denied parenting time or contact with a child.

(2) If satisfied that an applicant has been wrongfully denied parenting time or contact with a child by a child’s guardian, the court on application may make an order to do one or more of the following:

(a) require the parties to participate in family dispute resolution;

(b) require one or more parties or, without the consent of the child’s guardian, the child, to attend counselling, specified services or programs;

(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;

(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;

(e) require that the transfer of the child from one party to another be supervised by another person named in the order;

(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to

(i) give security in any form the court directs, or

(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;

(g) require the guardian to pay

(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or

(ii) a fine not exceeding $5 000.

(3) If the court makes an order under subsection (2) (a), (b) or (e), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, service, program or transfer.

Explanation from the Ministry of Justice

The Family Relations Act did not have specific remedies for disputes over time with a child. The remedies were quasi-criminal tools, such as contempt proceedings or applications under s. 128(3) of the Family Relations Act, which provided for enforcement of access orders through the Offence Act. They were rarely used and were ineffective and ill-suited to this type of parenting dispute.

Section 61 establishes an enforcement regime for judges to ensure parties respect each other’s parenting time and contact arrangements.

This section provides a limit to ensure that applications are made with regard to recent denials only by requiring applications to be brought within 12 months of the denial.

It provides a range of remedies, from preventative to punitive, that a judge can order when there is a denial of parenting time or contact, including:

requiring parties or their children or both to attend family dispute resolution, counseling, or other services;

compensatory time;

reimbursement of expenses incurred as a result of the denial, which could include, for example, payment to the other parent for their wasted travel costs or daycare costs where the parent does not fulfill their parenting time commitments; and

requiring the offending party to provide security or pay a fine of up to $5,000.

This section gives judges the discretion to allocate the cost, if any, of family dispute resolution, counselling, or supervised transfer of children to facilitate parenting time or contact.

Commentary

Division 5 provides a variety of remedial tools to address problems exercising parenting time and contact that was notably absent from the FRA. The range of remedies in this part provides the court sufficient flexibility to address the unique facts of each case. Options such as counselling may help resolve the underlying issues and reduce future difficulties whereas financial penalties are more punitive in nature.

The remedies under the FRA for circumstances where there were ongoing access problems were rarely used and ill-suited to parenting disputes regarding access. In addition, contempt orders were difficult to obtain in part because the test required that there be no ambiguity in the order from which the contempt arose. Further, the applicants were often able to provide quasi-legitimate reasons for the failure to abide by the order, such as a child’s illness or miscommunication between the parties.

Section 61 provides a variety of remedies the court may order in circumstances where there has been a wrongful denial of parenting time or contact. Remedies include preventative measures as well as escalating sanctions. Section 61 also provides a time limit to ensure that applications are only in relation to denials that occurred in the previous 12 months. Further, it allows the court the discretion to allocate any costs of family dispute resolution, counseling, or supervised transfer of children to facilitate parenting time.

When denial is not wrongful

62 (1) For the purposes of section 61 [denial of parenting time or contact], a denial of parenting time or contact with a child is not wrongful in any of the following circumstances:

(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;

(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;

(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;

(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;

(e) the applicant

(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and

(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;

(f) other circumstances the court considers to be sufficient justification for the denial.

(2) If, on an application under section 61, the court finds that parenting time or contact with a child was denied, but was not wrongfully denied, the court may make an order specifying a period of time during which the applicant may exercise compensatory parenting time or contact with the child.

Explanation from the Ministry of Justice

Section 62 provides examples of circumstances in which a denial of parenting time or contact is not wrongful.

Most remedies for denial of parenting time or contact are available only when the parenting time or contact was wrongfully denied. However, even when the denial was not wrongful, the court may, if appropriate, order compensatory time to the guardian to make up for the missed time with the child.

Commentary

With the exception of make-up parenting time or contact, the remedies set out in s. 61 for a denial of parenting time or contact are not available where the denial was not wrongful.

Failure to exercise parenting time or contact

63 (1) If a person fails repeatedly to exercise the parenting time or contact with the child to which the person is entitled under an agreement or order, whether or not reasonable notice was given, the court on application may make an order to do one or more of the following:

(a) require one or more of the things described in section 61 (2) (a), (b) or (e) [denial of parenting time or contact];

(b) require the person to reimburse any other person for expenses reasonably and necessarily incurred by the other person as a result of the failure to exercise the parenting time or contact with the child, including travel expenses, lost wages and child care expenses;

(c) if the court is satisfied that the person who failed to exercise the parenting time or contact with the child may not comply with an order under this section, order that person to do one or more of the things described in section 61 (2) (f).

(2) In making an order under subsection (1) (a), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, service, program or transfer.

Explanation from the Ministry of Justice

Section 63 lists orders that can be made when a person fails repeatedly to exercise the parenting time or contact agreed to or granted in an order.

These remedies are more limited than those for denial of time, since it may be at odds with the child’s best interests to force a relationship with an uninterested adult by using punitive remedies.

This section gives judges the discretion to allocate the cost, if any, to facilitate parenting time or contact.

Commentary

Section 63 sets out orders that can be made by the court when there is repeated failure by a person to exercise parenting time or contact that has been agreed on or granted in an order.

This is notwithstanding whether the parent not exercising the time has provided reasonable notice.

The orders the court can make are more restrictive than those set out in s. 62. They include requiring the parties to participate in family dispute resolution, require one or more parties to attend counseling or specified programs, or require that the transfer of the child be supervised.

The remedies are more limited than those under s. 62 since it may be at odds with a child’s best interests to force a relationship with an uninterested adult by using punitive remedies.