Brett Coleman
Decision Making Power of childrenA common message family lawyers hear from the bench is “children have a voice, not a choice”. That being said, there often comes a point in time when the court is no longer willing or able to force a child to attend for scheduled access with one or the other parent. Sometimes that means the court is unwilling to order such access be enforced by police. Other times, notwithstanding a police enforcement clause in an access order, police themselves are unwilling to comply with the order to enforce the access. When that time comes, children effectively achieve choice with respect to who is parenting them and when.

Clients with children who are expressing a reluctance to attend for scheduled access with the other parent often want to know exactly when voice turns to choice. That is, they want to know when the obligation on them as parents to facilitate access with the other parent is extinguished, legally, and autonomy of the child fully respected.

The reality is that there is no clear answer that can be given to that question. There simply is no magic age, at which point a parent’s obligation clearly terminates.

This is an important reality, as parents deemed by the court to have had such obligation and to have failed in that regard, could be held in contempt of court. The onus to establish civil contempt is on the complainant, who must prove beyond a reasonable doubt that the alleged contemptor acted deliberately in contravention of a court order.

In the British Columbia Supreme Court cases of F (KE) v P (TW), Justice Rogers held a father in contempt where it could not necessarily be said that he acted in a positive way to prevent the mother from having parenting time but rather he “improperly acquiesced to the children’s wishes”. This was a case involving a 12 and a 14 year old, who had been alienated from the mother, by the father. There was a court order in place, clearly setting out the parenting regime including access time for the mother. Despite court order, the children were not attending for visits with their mother. Justice Rogers made it clear that while the children had a voice, they did not have a veto and in allowing the children to make decisions about who should parent them and when, the father had essentially delegated parenting decision-making power and authority to the children. Here, the court held that the father’s deliberate decision to not use his own parental authority to override the children’s wish to spend less time with their mother amounted to a deliberate act, and civil contempt of the access order.

While it may be difficult to get pre-teens and teenagers to do what you want, at that age children do not have decision-making powers about when they will go to the other parent, particularly in the face of a court order. Court orders are not suggestions and while wishes and preferences of children of this age may be taken into account, they are not determinative. Parents are required to do everything in their power to ensure that parenting order provisions are given effect and when that does not happen, contempt may be the remedy.

Ultimately, the court has a lot of discretion in contempt matters and in this case Justice Rogers imposed a fine on the father of $5,000.00.

Often, in cases involving reluctance to access by a child (whether or not alienation is a factor), independent legal counsel is appointed for that child. There is a test to be satisfied in order to succeed in an application to have children’s counsel appointed and, again, that test does not include a specific age for the child. However, it is important to recognize that even with counsel being appointed for reluctant children, the child’s voice (as communicated to the court through his or her counsel) is only one factor of many to be considered by the court and, ultimately, it is up to the court to determine how much weight to afford to the child’s views and wishes.