Wrongful Denial of Parenting Time
By Millad Ossudallah, Vancouver Family Lawyer
Under British Columbia’s Family Law Act (the “FLA”), the term ‘parenting time’ refers to a parent’s right to spend time with their child or children. The FLA recognizes the importance of preserving meaningful relationship between a parent and their child, even after separation or divorce. Instances where one parent interferes with or restricts the other parents access to their child, without a justifiable reason, are classified as a wrongful denial of parenting time.
The FLA encourages both parents to actively participate in the upbringing of their child(ren), promoting shared parenting responsibilities and decision-making. It emphasizes the best interest of the child(ren) as the paramount consideration when determining parenting arrangements.
What can I do if my parenting time is wrongfully denied?
If a parent is wrongfully denied parenting time, they can take legal action to enforce their rights. Here are some steps a parent can take if they have been wrongfully denied parenting time:
Communication - as a first step, the parent who is being denied parenting time should try to address the issue immediately with the other parent. If a written agreement or court order detailing parenting arrangements is already in place, the parent who is being denied parenting time should discuss the importance of their written agreement or court order.
Mediation - should direct communication prove ineffective in resolving the denial of parenting time, the affected parent can suggest mediation. This involves enlisting the help of a neutral third party. While the parent facing denial can propose this step, it cannot be enforced unless the other parent cooperates or there is a dispute resolution clause in their written agreement or court order. The parents are free to seek a neutral mediator who can assist with the denial issue, and they can choose to attend these mediation sessions with or without their respective lawyers
Court application - if direct communication and/or mediation is unsuccessful and does not result in a resolution, the parent can file a court application. Depending on the urgency and circumstances surrounding the denial of parenting time, you may need to consider bringing an urgent court application, which would allow that parent to bypass the procedural deadlines for attending court. If the matter is not considered urgent, the parent will need to follow the appropriate deadlines to attend court.
Court order - upon filing a court application, the case will be subject to a judge's review. The judge will take into consideration the best interests of the child(ren) when making their decision. If the judge determines the denial of parenting time to be unjust, the court can then issue an order that mandates adherence to the parenting schedule and enforcing the parent’s right to spend time with their child(ren).
Compliance and enforcement - if the court order is granted, it is legally binding. If the denying parent continues to disregard the order, the other parent can take further legal action to have the terms of the order enforced. The court has various enforcement options such as fines, compensatory parenting time, etc.
How is a denial of parenting time or contact triggered?
The FLA outlines that a parent can bring a court application for a denial of parenting time or contact only if:
- there is an agreement or court order in place for parenting; and
- the court application was brought within 12-months after the parent was denied parenting time or contact with the child(ren).
The BC courts state that in cases of denial of parenting time, the burden of proof initially falls on the parent experiencing the denial (the applicant). It is their responsibility to establish that there has indeed been a denial. Once a denial of parenting time has been established, the onus then shifts to the offending parent to show that the denial was not wrongful. There is emphasis that if there is parenting time included in an agreement or court order, it must be respected, and compliance cannot be viewed as optional.
What are reasonable denials of parenting time?
Courts in British Columbia suggest that reasonable denials of parenting time may be permitted, provided they align with the child(ren)’s best interests. The pattern of wrongful conduct that frustrates an agreement or court order for parenting time will also be considered when determining the available remedies.
The FLA has several examples when parenting time or contact with a child(ren) is not wrongful, including the following circumstances:
- If there is a concern about family violence and the safety of the child(ren);
- If the parent being denied parenting time was impaired by drugs or alcohol during their parenting time;
- If the child or children are suffering from an illness;
- If within the 12-month period of denial, the parent failed to exercise parenting time or contact;
- If the parent provided notice for the denial; and
- Other circumstances the court considers sufficient.
What are the available remedies for a denial of parenting time?
The FLA outlines that if the court is satisfied that a parent has been wrongfully denied parenting time, the court may make an order to do one or more of the following:
- Participate in family dispute resolution;
- Attend counselling;
- Compensatory parenting time;
- Reimburse the parent who was denied parenting for expenses reasonably incurred for the denial;
- Require the transfer of the child(ren) from one parent to the other to be supervised;
- Require the parent to give a form of security if there are issues with non-compliance; or
- Require the parent to pay fines not exceeding $5,000.
If there has been a continued history of a denial of parenting time and the other parent has no respect for written agreements or court orders in place for parenting, a parent may seek a police enforcement order with the court. A police enforcement order is not granted unless there are extraordinary circumstances, and no other remedy is sufficient to enforce compliance. The court is of the view that not only are police enforcement clauses harmful to the child(ren), but the police should not be diverted from their usual law enforcement responsibilities unless it is absolutely necessary.
When you're faced with wrongful denial of parenting time, it's important to have knowledgeable and empathetic legal professionals in your corner. Schedule a complimentary 20-minute consultation with one of our experienced family lawyers or mediators today! Let us help you navigate this challenging terrain and take the necessary steps to safeguard your parenting rights and the best interests of your children.