NOT SO SWEET SIXTEEN
Updated: Sep 26, 2019
In Ontario, it all too often it seems to be forgotten that the children are not a party to the divorce proceedings and as such, an order that grants the non-residential parent access time does not impose any compliance requirement on the children. In laments terms… an order for access between the parties in a divorce proceeding is directed at them and not their children. Since it is common for both parents and lawyers to be confronted with the issue of a defiant, unmanageable and even rebellious teenager who refuses to spend time with one of their parents, this can become a real issue. It is common to find a child defying an order imposed by the court in favor of their own wishes and preferences …will the court let them get away with it?
Having compliance with access issues is an unfortunate experience that a significant number of separating couples are faced with, even in cases where the separation is amicable. Children often begin to resent the access schedule as time goes on and will go as far as refusing to spend any time with the non-residential parent. This places the residential parent in an awkward position, in between their children who are refusing to have contact and the other parent demanding that the children spend time with them in accordance with the parenting plan in place. In cases where residential parent cannot force their children to attend access visitations and the children begin to skip same, the non-residential parent often begins to feel alienated, hence the term ‘parental alienation’.
In the case of L. (N.) v. M. (R.R.), 2016 CarswellOnt 1639 (Ont. S.C.J.) Justice Perkins of the Ontario Superior Court of Justice was faced with a parental alienation claim where a child over the age of 16 was refusing to have contact with his father and the police were refusing to enforce a prior court order to deliver the child to the father. In order to determine whether police involvement was in fact required at law, Justice Perkins reviewed the relevant section of the Children’s Law Reform Act (CLRA)(section 36) which grants the court with the power to authorize a parent or the police to apprehend their child for the purpose of custody or access where parental alienation is present.
In his analysis of the case at hand, Justice Perkins analyzed the case of Patterson v. Powell, 2014 ONSC 1419, where Justice Pazaratz had previously established several relevant legal principles with respect to this topic. One of which was limiting the application of parental alienation claims under the CLRA to present and existing problems, rather than future or potential problems. There is often a tendency to forget that the other parent must be lawfully withholding the child or proposing to leave Ontario with the child in order to claim parental alienation. This is a high threshold to meet, as the present reality must exhibit those factors, rather than the threat that they might happen in the future.
Justice Perkins then determined that Section 36 does not make police enforcement available “as a long-term, multiple-use, on-demand enforcement tool”, but rather, it should be used sparingly and only in exceptional circumstances and as a last resort. The fact that police enforcement could be a very traumatic experience for a child that is victim to parental alienation, resulting in negative emotional consequences for the child, is a real danger not taken lightly by the court.
In the end, the court concluded that it did not matter why the children were acting the way they were and deliberately avoiding their father, but what mattered was that they were doing so at all. Justice Perkins recognized that there was no point of involving the police, as the children were unwilling to see their father, and so the police enforcement clause was removed. Given that the children were arguing that they should have the right to determine who they live with and if they should have contact with their father given their age, Justice Perkins ordered each of the children was their own master and neither parent has custody or access rights over them. This decision was largely influenced by the fact the children had dropped out of school to hide out in order to avoid the court order, so it seemed to be the most favorable to maintain their education.
Although the preference of an alienated teenager may be irrational or even wrong, these two decisions have affirmed that the court will not disregard the children’s views, as long as they are lasting, consistent and have been acted on repeatedly. When a current custody order involving teenagers isn’t working for the parties involved, it is now a real possibility that both parents push for a specific access order may be disregarded by the court. If you are a parent to a teenager refusing to comply with an access schedule, feel free to contact me with your specific concerns.