Divorce is often a difficult process for many, and if children are involved, it can be even more challenging and emotionally charged. Determining which parent(s) have access to the children of the relationship involves specific considerations and nuanced legal arguments. This blog, we will provide an overview of child access rights in family law, and recent developments in the case law which provide guidance on enforcement of such rights.

What are Access Rights?

In Ontario, access rights to children, often referred to as visitation or parenting time, are crucial aspects of family law. These rights aim to ensure that both parents maintain a meaningful relationship with their children following separation or divorce. They are governed by Ontario’s Family Law Act, which emphasizes the best interests of the child as the primary consideration in determining access arrangements.

Access rights can be granted to a parent, grandparent, or any other person who has been granted access by the court. The court considers various factors when determining access, including the child’s age, wishes (if they can be reasonably ascertained), and the history of care. The court may also consider the ability of the parties to cooperate and communicate effectively regarding the child’s needs. The access rights can also be supervised or unsupervised, depending on the circumstances. Access rights can be ordered to include regular visits, holiday and vacation schedules, and communication methods.

Nevertheless, the law encourages parents to cooperate and create reasonable access schedules that reflect the child’s needs and schedules. Courts may intervene if parents cannot agree, considering factors such as the child’s age, wishes, and the ability of each parent to care for the child.

Judge Allows Access to Children

Access rights become even more complex when children are removed from their residence by the Children’s Aid Society of Toronto pursuant to the Child, Youth and Family Services Act. This was the case in Children’s Aid Society of Toronto v. R.I.. This case sheds light on the jurisdiction of the courts presiding over access matters, and the relevant considerations the judge will make when making such determinations.

The judgment of the lower court involved three children removed from their homes by the Children’s Aid Society (the “Society”). After a hearing before the Ontario Court of Justice, it was determined that two of the children should live with their parents, and the third should live with her maternal grandparents. The judge also ordered specific terms of access; the two children living with the parents would have access to the third child and the grandparents on a monthly basis. These arrangements were to persist for 12 months, and were subject to supervision from the Society.

Parents Provided With Opportunity to Remedy Breach

The terms of the access rights were allegedly breached, such that the Office of the Children’s Lawyer brought a motion on behalf of the third child before the same judge to enforce the access rights.

After hearing the motion, the judge provided the parents the opportunity to remedy the breach by ordering access for the next three months on specific dates in the following months. The judge adjourned the motion to a later date to ensure compliance, and if the breach persisted, she would hear submissions on potential remedies.

The Society appealed this decision to the Superior Court of Justice, which was dismissed. The Society then appealed to the Court of Appeal.

Ontario Court of Justice Has Jurisdiction to Enforce Access Rights

The Society’s primary argument was that the Ontario Court of Justice didn’t have the jurisdiction to hear an enforcement motion. It also argued that it was not afforded procedural fairness as it was not allowed to make submissions on jurisdiction, and that there was a reasonable apprehension of bias, although these arguments were quickly dismissed.

The Court of Appeal also dismissed the primary thrust of the case, and that the Ontario Court of Justice had jurisdiction to hear the motion to ensure compliance. The Society argued that in order to enforce an order, a new preceding was necessary for enforcement. The Court noted that if this was the case, then “by its own admission, would lead to the result that a party who needed the court’s assistance to enforce an order would have to start a new proceeding solely for that purpose.” A separate case for the enforcement of a court order would likely result in a multiplicity of court cases.

Therefore, the Court of Appeal dismissed the case, and in doing so, confirmed that enforcement can be sought before the Ontario Court of Justice, depending on the nature of the order.

Contact the Family Lawyers at NULaw in Toronto to Learn More About Your Parental Rights

If you are contemplating a separation, or are already in the process, and children are involved, disputes over parenting time and decision-making responsibility can be complex. Therefore, it is important to work with an experienced family lawyer who can advise you of your rights and develop a tailored legal strategy to ensure your interests are protected. At NULaw, our talented team of family lawyers can help you navigate the uncertainties associated with parental rights following a separation or divorce. Call our office at 416-481-5604 or reach out to us online to book a confidential consultation.

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