• by Roxanna Cian
Originally published in the OFLM 2024-10 edition
Overview
Navigating parenting orders becomes increasingly complex when the children subject to the order resist spending time with one parent. Recent case law highlights the challenges that courts face in addressing non-compliance, particularly when parents argue that older children’s preference should dictate parenting arrangements. By examining the recent case of Moran v. Helmuth, 2024 ONSC 3196, among other relevant cases, this article will illustrate that a child’s resistance to parenting time does not relieve a favoured parent of their legal obligation to adhere to the parenting terms of an order.
Case Overview
In the recent case of Moran v. Helmuth, 2024 ONSC 3196, a father brought a motion for a compliance order against a mother’s alleged breaches of parenting terms previously ordered by the court. The court noted that despite the father’s efforts, the relationships with his 16- and 18-year-old daughters had gradually deteriorated, resulting in the children resisting contact for a number of years (paras. 6, 13). In effect, the father had lost 65 of his allotted parenting sessions (at para. 45).
The mother claimed the daughters did not want to see him because of his controlling and coercive behaviour and that the legal efforts made in pursuing the relationships were motivated by vengeance rather than fatherhood (at para. 14).
However, the court found that the evidence before them suggested otherwise. The father had made meaningful efforts to attend a variety of counselling programs directed at conflict management and coparenting in attempts to mend the relationship (at para. 18).
The mother’s position was rooted in the belief that the children were old enough to decide whether they wanted to pursue a relationship with their father (at para. 45). She further suggested that she would support the children’s desire to see their father but did not want to push them (at para 46).
The Law
Justice Healey swiftly dispelled this approach, finding that the mother incorrectly assumed her obligation towards the parenting order were met by simply bringing the 16-year-old to the parenting arrangement then leaving once the child refused to engage (at para. 45). Justice Healey went on to explain, “While I recognize that it may be significantly more difficult to persuade teenagers of Anna and Flora's ages to attend parenting time, in this case there is no evidence of active encouragement or withholding of privileges. There is only evidence of her active encouragement of estrangement from Mr. Helmuth” (at para. 51).
Justice Healey emphasized, “Courts have been clear that a parent must not simply leave the decision to interact with the other parent in the child's discretion, as it is an abdication of parental responsibility and a breach of that party's positive obligations under a court order” (at para. 51).
The 18-year-old
Despite the 18-year-old being legally considered an adult, Justice Healey found that she still remained a child of the marriage and thereby subject to parenting orders. In doing so, Justice Healey relied on a report prepared by a psychologist, referred to as the “Alton Report” (at para. 20).
The report suggested that her avoidance of her father was rooted in her anxious tendencies and unchallenged pattern of avoiding uncomfortable situations, that stunted her development on many fronts (at para. 24). The court exemplified her distorted thought process by referencing how the daughter described her father’s parenting to the psychologist as “abusive” when referring to being sent to her room and losing privileges for disobeying rules (at para. 27).
The report commented,
…Without a further court order requiring an increase in normal parenting time, together with ongoing multi-faceted family therapy with trained reunifications specialists, the children remain empowered to reject their father and his authority as a parent - there is no counter-balancing or corrective influence from their mother and no evidence she has sufficient insight about her role at this time… (at para 24).
In light of the report’s findings, the court used its jurisdiction over the 18-year-old as a child of the marriage “in her best interests, to assist her to break down the barrier created by her mother's relentless campaign to isolate her from her father” (at para. 30).
The Order
Stopping short of finding the mother in contempt, Justice Healey explained that sanctions are beneficial when non-compliance has been deliberate, willful, intentional, lacking credible explanation, and compliance is otherwise reasonable (at para. 69).
In an attempt to motivate the mother “of modest means” to cultivate the relationship between her daughters and their father, Justice Healey imposed a $100 fine per child for each time one of them fails to attend the father’s allotted parenting time. The fines were to be deducted from child support, if necessary (at para. 67).
It is clear that even when a child opposes seeing a parent, a parent cannot passively defer to a child’s resistance to justify non-compliance of parenting orders. The “favoured” parent has an active obligation to make sensible efforts to ensure the child is participating in the parenting time outlined in an Order.
Other Cases to Consider
As cited in Moran, the leading case of Godard v. Godard, 2015 ONCA 568, set the standard of evaluation in assessing the role of a parent in executing parenting time with the other parent when the child opposes it.
In Godard, the mother argued that she had done her best to facilitate the father’s parenting time, but that the 12-year-old daughter in question had persistently refused to participate. The motions judge found her in contempt of the court order, citing a failure to pursue multiple avenues, short of physical force, to motivate her unwilling daughter to partake in the parenting time ordered (at para. 14). On appeal, the mother argued that the motion judge erred in finding she had deliberately and wilfully breached the parenting order (at para. 15).
The Court of Appeal wrote,
Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant's failure to do all that she reasonably could: she failed to “take concrete measures to apply normal parental authority to have the child comply with the access order” (at para. 29) (emphasis added).
The court further cited the helpful analogy put forward by the motion judge:
[W]hat does the mother do when this child doesn't want to go to school or doesn't want to go to the dentist? What are her mechanisms? Right? ... Does this child have an allowance? Does she have a hockey tournament that maybe she's not allowed to go to if she doesn't go to see dad before? Are there things she could do to force her to go short of the police attending at her house and physically removing her? (at para. 30).
The court found particular concern with the fact that the mother did not attempt any efforts to make the child see her father beyond verbal encouragement, despite being alerted at previous hearings that more persuasive modes of encouragement may be necessary (at para. 33). Ultimately, the court upheld the motion judge’s decision that the mother had deliberately and willfully breached the court order, beyond a reasonable doubt, and thereby in contempt of the court order.
A recent application of Godard
Godard was more recently applied at the Court of Appeal in Bors v. Bors, 2021 ONCA 513. Similar to the factual background in Moran, the mother believed she had fulfilled her positive obligation to facilitate parenting time by bringing the children to the parenting time exchange location. She argued she could not be held accountable for the children’s refusal to transition into the father’s care (at para. 28). The court reinforced that, “Once a court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child” (at para. 28). The court also found that the mother’s intense resentment of the father had transferred to the children and alienated them from him (at para. 32).
As a result, the court upheld the trial judge’s reversal of decision-making and primary residence to the father, and ordered that the mother have no contact with one of the children and minimized contact with the other for a period of time (at paras. 4 and 41).
Hamid v. Hamid: a word to counsel
In Hamid v. Hamid, 2023 ONCJ 215, Justice Sager asked whether the children’s alleged resistance to parenting time with their father excused the mother of her breach. Here, the father moved to find the mother in contempt of a parenting order. The mother claimed that the 14- and 9-year-old sons refused to see their father because of his behaviour (at para. 4).
The court considered four questions, as deployed in Smart v. Belland, 2021 ONSC 1124 to determine whether a parent’s efforts met the Goddard threshold of “concrete measures” in the exercise of reasonable parental authority towards ensuring parenting time compliance:
- Did they discuss and determine the child’s refusal with the child?
- Did they communicate with the other parent or others involved with the family about resolving the difficulties?
- Did they incentivize the child to comply with the order?
- Did they impose disciplinary measures for the child’s refusal to comply with the order? (at para. 34).
The evidence suggested that the mother did not take any active steps to ensure the children met the terms of the parenting order (at para. 39).
Notably, the court took issue with the language used by counsel for the mother in communicating about the mother’s failure to facilitate the ordered parenting time. In particular, her counsel claimed that despite the mother’s attempts to encourage visitation, her failure to facilitate parenting time reflected the children’s many documented complaints about the father. Counsel for the mother continued, “I suggest your client listen to the children and stop undermining their feelings. Their views and preferences matter a whole lot and minimizing them won't change how they feel” (at para. 25).
Citing the court in McCarthy v. Murray, 2022 ONSC 855, Justice Sager expresses,
[C]ounsel arguing noncompliance with a court order is justified when a child does not wish to see a parent and a parent who fails to comply with a court order in that circumstance is only acting in the child's best interests "is a completely unacceptable stance to take, and it is irresponsible for counsel to suggest (emphasis mine) that the mother's actions are appropriate or in the best interests of the child” (at para. 41)
Further, “Counsel must ensure that parents understand that a court order for parenting time must be complied with and cannot be unilaterally changed or ignored” (at para. 42).
Although the court acknowledged multiple breaches of the order, the court found it most appropriate to convert the motion into an enforcement motion, only after which failure to comply would allow the father to bring a motion for contempt (at para. 58).
Evidently, it is clear that counsel who encourage non-compliance in such contexts risk prejudicing their client’s position and perpetuating conflict. Counsel must be cautious about reinforcing unhealthy relational dynamics between children and parents and instead steer their clients towards constructive compliance.
A Summary of Potential Consequences
As seen in the cases above, there are several ways a court may tackle a parent’s failure to encourage their reluctant child to engage with the other parent. The approach seems to vary depending on the extent to which alienating behaviour is involved.
As discussed in the September 2023 edition of the OFLM, in cases where parental alienation is strongly adduced by evidence, the courts may:
- Do nothing and leave the child with the alienating parent;
- Reverse decision-making and primary residence, and place the child with the rejected parent (as seen in Bors, discussed above)
- Leave the child with the favoured parent and order therapy and counselling; or
- Provide a neutral, transitional, placement for the child and order therapy.
MPM v. ALM, 2021 ONCA 465 at para. 36.
As seen in Godard, a court may also hold a parent in contempt for failing to take reasonable efforts and exercise their parental authority to ensure their child obeys the parenting order.
Other courts, like the one in Hamid, may give a second chance to a parent failing to successfully encourage visitation with the other parent by first suggesting an enforcement order is set in place before a motion for contempt is heard.
In recent cases from this year, two courts have been observed to exercise their discretion under 1(8) of the Family Law Rules to impose monetary penalties for non-compliance. As mentioned in Moran, the court imposed a $100 penalty for each child that failed to attend. Further, in Cousins v. Healey, 2024 ONSC 688, the court also attributed a $1,500 fine to a mother who failed to facilitate a relationship between the children and the father and breached the parenting order (at para. 132).
There, the court declined to accept the mother’s claim that she had lack of control over the children’s attitudes towards their father after she permitted them to not open his gifts, speak poorly about him, and dictate his parenting time (at para. 81). The court explained, “The purpose of the payment is to incentivize compliance with court orders and to signal to the offending party that the court will not tolerate non-compliance, in other words, to do what is necessary to achieve enforcement” (at para. 130).
This analysis highlights the court’s evolving approach to cases involving parental alienation and non-compliance with parenting orders, even when the breach is alleged to be motivated by the children’s desires. The range of responses, from reversing decision-making to imposing fines, demonstrates the court’s increasing focus on ensuring that children maintain meaningful relationships with both parents. The varied approaches taken by the courts also underscores the need for flexible and case-specific remedies in these contexts.
Conclusion
The cases outlined above serve as a reminder that both parents are responsible for nurturing their children’s relationships with one another, even in the face of a child’s resistance or opposition. Failure to do so may lead to unfavourable outcomes for the preferred parent. Notably, many of the cases above dispel the common myth that teenagers are old enough to decide who they want to spend time with. When a court determines it is in the best interest of the child to have a relationship with both parents, courts will not tolerate a parent who allows their children to skip parenting time simply because they did not want it.