Denied Visitation? Exercising Your Parental Rights
January 16, 2023
Family
Many Albertan parents raise concerns about complying with access responsibilities. Most problems arise when parents disagree on access arrangements or fail to comply with the terms of an existing written access agreement or a court order.
Some of the reasons cited for these challenges include reluctance to accept the terms of a court order or written agreement and also general misunderstandings about what the court order or agreement requires parents to do.
The Alberta courts and statues have formulated several legal approaches to deal with access denial cases. Some viable options include mediation, supervised access, variation of custody orders, reimbursement of expenses, scheduled time intended to make up for lost access time, and imprisonment or fines to respond to deliberate unreasonable non-compliance.
Exercising and Complying with Access
Both parents must comply with the conditions stipulated in a custody and access order, also known as parenting order. However, access-related problems can arise from even minor incidents, like when access is denied on a specific occasion, such as when the child is sick.
At other times, the problems arise from serious disagreements where parental relations are highly antagonistic. The fact that parent-child connections are often disturbed by the failure of a parent to assume their access responsibility can present a severe problem.
When parents are separated, there arises a need to reorganize parental responsibilities. In civil law, this does not imply the loss of parental authority of the non-custodial parent. The Divorce Act stipulates that unless there exists a court order to the contrary, a parent with granted access also has the right to make inquiries and to be given all relevant information as to the well-being, health, and education of the child.
Custodial vs. Non-Custodial Parents
The custodial parent, also known as primary caregiver, often makes the everyday decisions that affect the child’s life. That includes daily discipline, housing, clothing, food, and activities. Since these decisions seriously affect the child’s well-being, the non-custodial parent has a right to supervise these activities.
As such, the non-custodial parent is always entitled to information about the child. Therefore, this parent continues to maintain an influence on the daily activities of the custodial parent. That notwithstanding, information can be denied by specific prohibition orders.
In shared parenting arrangement, or joint custody situations, both parents must exercise their responsibilities in turn whenever the child is under their roof.
In the recent case of Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court of Canada stated that:
“The parent who cares for the child on a daily basis is in a unique position to assess what is in their best interests: Gordon, at para. This logic applies to both parents in a shared parenting arrangement, and accordingly, both of their views are entitled to great respect in an assessment of the child’s best interests. This makes sense: a court always pays careful attention to the views of the parents.”
Factoring in the Best Interest of the Child
In making an order for parenting time, decision-making responsibility or contact under the Divorce Act or the Family Law Act, the court will consider only the best interests of the child.
We at Laws & Beyond are often asked what this “best interest of the child means”?
The child’s best interests is often a matter of individual opinion or interpretation.
Section 16(2) of the Divorce Act states that when considering the best interest factors, the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
The problem arises when determining the best way to promote the parental access in a manner that best serves the child’s best interests. To achieve this, parents may also need to involve professionals, such as psychologist to perform an assessment.
Encouraging Parents to Meet Access Responsibilities
There are several measures that parents can take to better meet their access responsibilities. These measures include:
Some of the available legal remedies include contempt of court, amendment of custody orders, financial measures, psychosocial evaluation, and examining the child before presentation to the court.
Contempt of Court
Parents who contravene court orders are liable to pay fines or imprisonment for a period of up to 2 years (Rule 10.53 of the Alberta Rules of Court).If the custodial parent is denying you visitation, and it’s a right reserved in a court order, then this is one of the viable solutions. However, it is best that you first attempt solving the issue out of court.
Amending the Custody Orders
Another option for a parent who encounters challenges related to custody or their exercise of parental rights is to apply for amendment or custody orders and agreements. Lack of cooperation between parents and negligence in exercising parental duties in the child’s best interest sufficient grounds for amending custody orders.
Orders for Psychosocial Evaluation
With the consent of all concerned parties, the court can request an expert’s opinion in order to understand the nature of the underlying problem. The evaluation is then attached to the court and serves in an impartial fashion with respect to the two parents.
It is a tool that permits the court to identify the best solution in the circumstances of the case at hand. The goal is to establish what is best for the child.
Examining the Child’s Views
The court can also order for the child’s views to be heard without the parents’ presence. The child’s age or their level of maturity and ability to express themselves are some of the factors that the court will consider. Even though the court will not place the decision on the child, engaging with the child can help inform the court’s decision.
Mediation
In Canada, it is possible for parents claiming access to resolve differences between themselves. You can take advantage of the readily available free services of experienced and accredited mediators.
In Alberta, there is a mandatory obligation on the parents to use mediation as the first stage of child custody negotiations.
