When Denial is Not Wrongful (Family Law Act, Section 62)

Section 62 of the BC Family Law Act provides examples in which a denial of parenting time or contact is not wrongful:

(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;

(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;

(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner or nurse  practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;

(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child; or

(e) the applicant: (a) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and (b) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all.

Pursuant to Section 62(2) of the BC Family Law Act, the court may make an order for the applicant to exercise compensatory parenting time or contact with the child, even if the denial was not wrongful.

When Denial is Wrongful

         Enforcement of Parenting Time (Family Law Act, Section 61)

Section 61 of the BC Family Law Act establishes an enforcement regime for judges to ensure that parties respect each other’s parenting time and contact arrangements. This section provides a limit to ensure that applications are made with regard to recent denials only by requiring applications to be brought within 12 months of the denial. It provides a range of remedies, from preventative to punitive, that a judge can order when there is a denial of parenting time or contact, including:

Section 61(2):

(a) requiring parties or their children or both to attend family dispute resolution, counselling or other services;

(b) require one or more parties or, without the consent of the child’s guardian, the child, to attend counselling, specified services or programs

(c) compensatory time;

(d) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;

(e) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;

(f) require that the transfer of the child from one party to another be supervised by another person named in the order;

(g) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to: (i) give security in any form the court directs, or (ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;

(h) require the guardian to pay: (i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or (ii) a fine not exceeding $5 000.

This section also gives judges the discretion to allocate the cost, if any, of family dispute resolution, counselling or supervised transfer of children to facilitate parenting time or contact.

The court also has discretion not to impose any consequence or remedy even if a denial is found to be wrongful. Section 61(2) uses permissive not obligatory language. Cases with claims under s. 61 that have found that there was a justification for the denial under s. 62 turn on whether the reason for denying parenting time was reasonable.

Parenting time that has been included in an agreement or that has been ordered must be respected. If not appealed or varied, compliance cannot be viewed as optional. The time constraint in s. 61(1)(b) ensures some contemporaneity between the alleged denial and the remedy, thus serving as well to focus on the best interests of the children. Section 62 ensures reasonable denials are permitted, again consistent with the best interests of the children being the only consideration.

Deadline to Seek Enforcement

An application under this section may be made only (a) by a person entitled under an agreement or order to parenting time or contact with a child, and (b) within 12 months after the person was denied parenting time or contact with a child.

Summary:

Withholding a child from a parent is a very serious decision. Parents should not exaggerate their concerns in an attempt to gain control or alienate the other parent, but genuine concerns shouldn’t be dismissed. Parents do not only have the right to deny parenting time, they are obligated to if there is reason to believe that the children will be at risk of imminent harm in the other parent’s care. For example, if the other parent is clearly intoxicated when he or she arrives to pick up the child or if the other parent’s new partner has been physically abusive to the child and the child is scared to return.

It is usually best to discuss your concerns with the other parent and try to reach an agreement about an arrangement that is in the children’s best interest. For example, you may agree to postpone the parenting time; for the parenting time to take place in a public place or with a trusted third party; or that specific third parties will not be present during the other parent’s parenting time.

You may not like your former spouse’s lifestyle or parenting style, but the courts don’t expect parents to be perfect. Separation can be challenging and painful for children and they can tell if their parents are able to work as a team to resolve conflict. Children thrive when both parents are loving, nurturing, and present in their lives. If an agreement is not possible, it’s best to speak with an experienced family lawyer as soon as possible.