In Villeneuve v. Wilson, 2022 ONSC 2886 (CanLII) we read :
[21] It is the role of a parent to abide by court orders until such time as the orders have been terminated or varied through legal means. It is also the role of parents to instill in their children a respect of the law and legal institutions. A parent who does not do so does a huge disservice to his or her child- a disservice that can have long lasting ramifications throughout a child's life”: Stuyt v. Stuyt, 2009 CanLII 43948 (ON SC), Aitken J., at para. 62.
[23] The leading case on what a primary residential parent is required to do with respect to an access order is our Court of Appeal’s decision in Godard v. Godard (2015) (“Godard”). According to Godard, once the 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. Ontario courts have consistently held that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order” and that merely “encouraging” or abdicating decisions to the children is a breach of the Court’s Order: Godard v. Godard, 2015 ONCA 568 (CanLII), at para. 28.
[26] A parent cannot hide behind the child’s purported wishes as a reason not to comply with a parenting order. A parent who does this abdicates his/her role to the child because the parent does not want to be responsible for the violation of the order, or to suffer the consequences of breaching to order. Whether the parent or the child agrees or disagrees with that order, both must comply with it. It is the responsibility of the parent to show that she is the adult, she is the parent, and she will take appropriate steps to comply with an access schedule: King v. King, 2016 ONSC 3752 (CanLII), at para. 48.
[51] In this case it appears that the children K.M. and A.M. believe that it is their choice whether they are parented by their father and view their time with him as “visits”. This is regrettable.
[53] Ms. K.M. has admitted that she does not impose any consequences upon the children when they refuse to see their father. She sees enforcing the court orders with the children as “inflicting trauma” upon them.
[54] Based on the evidence called at this motion, the court finds as a fact that while Ms. K.M. may ask K.M. and A.M. if they want to see their father, she takes no steps beyond that to comply with the court orders that they spend every second week with their father at his home. Further, the court finds as a fact that Ms. K.M. has left the children with the incorrect impression that parenting time is based on their wishes.
[59] The court wishes to make it clear that this order is a staged approach to Ms. K.M.’s failure to comply with Justice Boucher, Justice Ellies and Justice Wilcox’s orders. It is an opportunity for Ms. K.M. to demonstrate that she is prepared to comply with those orders and take the proactive steps to ensure that the children are spending parenting time with their father. This will necessarily involve work on her part to repair and re-establish a “parenting relationship” between the children and their father.
[60] If Ms. K.M. fails to comply with this staged order, then the court will have no choice but to move to the next step in the contempt proceedings.
In Phong v. Nguyen, 2023 ONSC 514 (CanLII), we find:
If a child does not follow the order, and the parent does not force the child, under the Parental Responsibility Act, the parent is responsible for the breach/contempt. The parent is legally (if not ethically as well) obligated to ensure a child obeys an order.
[34] The law expects parents to correct their children’s behaviour. Counsel for the father drew the analogy of a child not wanting to attend school. The sanction under the Education Act, R.S.O. 1990, c. E.2, s. 30, is a provincial court offence for which the parent could be liable to pay a fine of no more than $200. The 19th-century legal positivist John Austin would likely have characterized this law as a sovereign command which the parent is simply expected to obey, on pain of a quasi-criminal sanction. It is not the purview of the sovereign to figure out how the subject corrects the child’s behaviour. Despite the inadequacy of our statute laws in addressing truancy, educators and social workers today would recognize that switching a child on to schooling is a complicated endeavour. The transfer of the threat of punishment from the parent to the child does not entail a prescription of what the parent must do.
[35] Attempts to impose parental responsibility have inevitably relied on such a transfer of commands, based on threats of punishment. Early this century, the passage of the Parental Responsibility Act, 2000, S.O. 2000, c. 4, codified the common-law civil liability of parents for property damage suffered as a result of a child’s torts and the repeal of s. 68 of the Family Law Act. The legislative debates show passage of the law over the concern that parents themselves already suffer from “a child who has gone off the track”: Ontario, Legislative Assembly, Hansard, 37th Leg., 1st Sess. (4 April 2000), at p. 1866. Despite the difference of the subject matter to the instant family law motion, the mechanism of the legal instrument of correction is identical. The child will not do as the court ordered. The parent is responsible for correction of the child’s conduct, or else the parent will be punished.
In H. v. H., 2023 ONSC 1933 (CanLII) we read:
[9] On behalf of her clients, Ms. Fitzpatrick submits:
In no other context would a reasonable person think it okay to consistently promote having a close relationship with a person who has a history of compromising one's emotional and psychological safety.
[10] With respect, the making of this submission demonstrates a failure to grasp two, and possibly three, crucial facts that form the context of this case.
[11] The first is that we are dealing with children, not adults. As I have tried, (unsuccessfully, it would appear) to explain, the views and preferences of children are not treated the same way in family proceedings as those of adults. As s. 24(3)(e) of the CLRA makes clear, the wishes and preferences of children are but one factor to consider and will vary in importance with the age of the children. These children are 11 and 13 years of age. Contrary to the submissions of counsel, there are circumstances in which reasonable people, indeed I would say responsible people, would require that children have contact with adults who make them anxious. Medical professionals administering necessary but unpleasant treatment come to mind. The Hospital for Sick Children is full of them. Ms. Fitzpatrick's submission ignores completely any consideration of the value of the relationship, which leads me to a discussion of the second crucial fact forming part of the context in this case.
[12] We are not dealing with the relationship between two children and a stranger in this case. Mr. H. is the father of these children. As I will explain, unlike the relationships between strangers, there is a statutory presumption of continuing contact between children and their separated parents.
Comments