Words Without Weight – Enforcing Parenting Orders

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FamilyLawTwo years after they separated, Stacey and Glen Haywood still argued bitterly about parenting arrangements for their three children. Glen accused Stacey of abusing alcohol and wanted sole custody. He filed six complaints and involved the police three times. The Office of the Children’s Lawyer, the Children’s Aid Society and the police investigated but turned up nothing. Glen finally relented, and he and Stacey signed a consent order. Stacey would have sole custody and Glen would have specified access. The consent order included a police enforcement clause. Stacey sighed with relief and hoped that everything would be okay.

Not so. Barely a month later, when Stacey arrived at Glen’s house to pick up the children, Glen refused to let them go home. There was a minor scuffle and Glen told their 11-year-old daughter Kasia to call the police. When the police arrived they charged Stacey. They held her in jail overnight. This was the start of Glen’s campaign to brainwash Kasia into believing that her mother was an unfit parent. Although Stacey soon retrieved her two younger children, she did not see Kasia for three months. By then, Glen had immersed Kasia in a sea of hatred and fear. He repeatedly told her that her mother was an alcoholic, and that her brother and sister were at risk in their mother’s house. Glen’s goal was to sever the attachment between Kasia and her mother, and he was well on the way to success.

Stacey applied in court for every remedy she could think of: contempt of court, a restraining order, the suspension of access, the immediate return of Kasia and her belongings, police enforcement, forcing Glen to follow the parenting schedule, prohibiting Glen from saying demeaning things about Stacey or involving the children in the court proceedings (Glen had filed Kasia’s handwritten statements in court), and to pre-pay and attend counselling.

Glen retaliated by seeking sole custody of all three children, a reduction of child support, and the appointment of a lawyer for the children (S.H. v. G.H., 2010 ONSC 5615 (CanLII), retrieved on 2013-02-02).

Stacey’s case was heard by Madam Justice McGee of the Ontario Superior Court. She took immediate action, quoting another judge: “It is not sufficient for the court to overlook a first breach. Child custody and access Orders are not like a game of baseball, where it takes three strikes before you are “out” (Justice Greer in Sickinger v. Sickinger, 2009 CanLII 28203 (ON SC), retrieved on 2013-02-02. In this case, the mother repeatedly breached a Consent Order and was found in contempt. She appealed the contempt finding and lost. She was ordered to pay her husband’s costs of $10,000.)

Justice McGee granted what is called a “multi-directional” order. She gave Stacey pretty much everything she asked for, but more importantly, she identified the case as high-conflict. She took control and ordered that all future proceedings must be before her.

From a lawyer’s point of view, Stacey was fortunate. As a family law lawyer, I have seen far too many cases where the offending parent is not “out” after one strike – or two, or three, or even four. In fact, parents like Glen sabotage the court system time and time again, seemingly without penalty. The case escalates into a high-conflict all-out fight where one (or both) parent’s goal is to alienate the child from the other parent. The case goes before a series of judges who don’t know what to do. Stacey was fortunate to have a judge who was willing to take charge right from the first breach of the order.

But Stacey probably didn’t feel so lucky. She had already withstood two years of accusations, spent thousands of dollars, and no doubt suffered an endless series of sleepless nights. Then it took her another three months and perhaps thousands of dollars more to get what she was already entitled to – Kasia’s return. The police helped Glen when Stacey was the one who needed help. She was treated like a criminal and went to jail, and Glen later leveraged this by trying to bait her into breaching her bail conditions. She was prohibited from contacting Glen while the children were with him. She endured yet another smear campaign alleging alcohol abuse. She had to listen to Glen’s lies.

Yet the highest price was paid by Kasia. Her father used her as a tool to meet his own needs – in short, he abused her, and for three long months there was nothing her mother could do to stop it.

It is perverse that one parent struggles to get a legally-binding order only to find that the other parent flouts it almost with impunity. It happens in all kinds of subtle ways. One parent keeps changing the pick-up schedule. The access parent doesn’t show up and the custodial parent is left to explain it to a deeply-disappointed child. Someone won’t answer the phone. A child is returned late, or not at all. There is a slow undermining of parental authority. Instead of doing their job, the police tell the parents to go back to court and sort it out.

The frustrated parent goes back to court to get … another order. In the meantime, he still has to obey the old one. So, until someone does something meaningful, the offending parent remains in control. Everyone loses faith in the justice system. Desperate parents start helping themselves – and risk Criminal Code prosecution for parental abduction.

The move toward reform

Governments are passing laws to deal with breaches of access orders (Alberta, Saskatchewan, Manitoba, Newfoundland and Labrador, the Northwest Territories and Nunavut), but it is not yet clear how effective those laws are. Section 61 of British Columbia’s new Family Law Act, in force March 18, 2013, empowers the court to:

  • make the parties see a counsellor or attend dispute resolution meetings;
  • make the offender reimburse the other parent for her wasted access costs and give make-up parenting time;
  • require that access transfers be supervised or make the offender report to the court;
  • post security that will be lost if the offender continues denying parenting time;
  • fine the offender up to $5,000, or make him pay up to $5,000 for the other parent’s or the child’s benefit.

Once a parent has an order, someone still has to enforce it. Alberta has now designated “enforcement officers.” They include police officers, First Nations police officers, and peace officers under the National Defence Act (Canada). There are enforcement guidelines and officers are required to write incident reports and give then to both parents.

It is easier to collect support than to collect your child. Every province and territory has a satisfactory maintenance enforcement program. Nova Scotia’s Judge Milner says we should have an equivalent program to enforce parenting orders. He suggests we create a “Director of Access Enforcement.” In theory, the director would oversee a squad of trained enforcement officers who understand the need to act quickly and decisively.

Judges do their best to make orders that benefit children. They are taking charge and case-managing high-conflict cases more often. The police are under pressure to treat breaches of parenting orders more seriously. After all, if the police who came to Glen’s house had arrested Glen instead of Stacey, Kasia would have been spared the emotional trauma that nearly tore her in two.

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