Maclaren Corlett (Lawyers Est. 1873)

It’s something that is thought to be the case by I would suggest almost all parents, a lot of lawyers, and certainly some judges. If a child says to a custodial or shared custodial parent, “I don’t want to go to dad’s (or mom’s) house”, whichever is the case, then as long as the custodial parent has asked them the custodial parent has done their duty – it’s the child’s decision. Well, no it isn’t.

In a decision of the Ontario Court of Appeal last year, Godard v. Godard, a mother was found to be in contempt of an access order in favour of a child’s father in spite of the fact that the child in question was refusing to see her father – an accepted fact in the case. The mother in this case said that she had done her best to have her daughter see her father but the daughter “persistently refused to see (her father).” The daughter was 13 years old. No reason was given by the daughter for not wanting to see her father. Basically, what the Court said was that in this case although the mother was trying to encourage her daughter to see her father, she had in the end left it up to her daughter to decide whether or not she would see her father, and this was just not good enough. The mother needed to do more – didn’t have to use physical force – but had to demonstrate that she had taken all reasonable steps, short of physical force, to get her daughter to go. The rhetorical questions were asked: what would the mother do if the child refused to go to school, or refused to go to the dentist? Are there privileges that could have been removed such as an allowance, going to a weekend hockey tournament? They have to be tried. In a direct quote from the decision, speaking of what the mother did or didn’t do, “She (the mother) did not go beyond mere encouragement to attempt any stronger forms of persuasion.” So, just saying “she (or he) doesn’t want to go” may not be enough – mere encouragement is not enough.

A couple of things trouble me about the end result of this case, however “legally correct” it may be, and these types of concerns are often “baggage” that come naturally along with decisions on custody and access. One is: should we be forcing a child to see another parent the child is expressing a deeply held wish not to see without insisting that the cause of the deeply held view of the child first be uncovered? Two: will forcing the child to see his or her other parent through a finding of contempt on the part of the custodial parent not perhaps lead to even more deeply rooted resistance on the part of the child to see the other parent?

A situation and set of circumstances with no perfect answers.