MESA's Response to Government initiatives (back)

The Following is MESA's response to the Alberta government's request for input into possible Access Enforcement legislation. MESA's input is under "Comments"

1. Applies to both Queen=s Bench and Provincial Court. 

• will augment existing Queen=s Bench jurisdiction - i.e. Queen=s Bench will keep all of its current jurisdiction, but the new legislation will be available for use.
• will give new jurisdiction to the Provincial Court.
• Provincial Court and Queen=s Bench will have concurrent jurisdiction over enforcement. Divorce Act variations can still only be done in Queen=s Bench.
• Comments: This legislation should not force the involvement of additional courts for its implementation, except under unusual circumstances. 

2. Applies to orders only

• will not apply to agreements. Based on the premise that if parties are in agreement, there is nothing to enforce, and if they are no longer in agreement, they had better get an order to give the court something to enforce.
• the order must be for specific (identifiable?) dates, periods, and times.
• does not apply to breaches which occurred before the legislation was proclaimed.
• where court determines that a frivolous or vexatious application has been made, court can ban further applications without leave of the court.
• Comments: Agreements should be enforceable, by all methods described below, except for use of force by police. Agreeing without the involvement of the court should be encouraged. Previous breaches, that occurred before the legislation was enacted, should be considered when determining consequences, when a new violation arises. Applications with respect to denial of parenting time should not be considered frivolous or vexatious. The legislation should specify that educational and medical information be provided as a matter of course to both parents. Access to, and provision of, information should be equal to both parents.

3. Conditions required to obtain a remedy

• there must be an access order.
• applicant must be entitled to access under the order.
• applicant must have been denied access contrary to the order.
• granting of a remedy must be in the best interests of the child.
• Comments: There must be an access order or agreement. Evidence of the order being violated must simply be that the child was not available for access/parenting time. If there is a claim that the child does not want to attend, this must be presumed to be a result of parental alienation, unless there is evidence to the contrary. Such evidence and protection of the child’s interests can be achieved by ensuring the child receives counseling by a certified practitioner, such as a Chartered Psychologist. This counseling should be child-centred and independent, with any reports going to both parents. Costs of the counseling should be borne by the custodial parent, since the responsibility for creating an atmosphere where both parents are valued lies mainly with that parent. This should apply even for older children. Relocation more than 200 kilometres without leave of the court should be considered access denial. Denial of access to medical or educational information should also be considered access denial. Remedies should be available to address information denial by medical or educational authorities.

4. Remedies available for breach of an access order

• compensatory access;
• supervised access (court must allocate costs between the parties);
• security for performance of the obligation to give access;
• parties or child to attend educational seminar, parenting course, counselling, or other sessions;
• mediation (court must allocate costs between parties);
• reimbursement for expenses (includes travel costs, costs of locating child and obtaining access, lost wages, other expenses court may allow);
• penalty of $100 per day to a maximum of $5000 for each day that access is denied, and, in default of payment, to imprisonment for up to 90 days;
• imprison continuously or intermittently for up to 90 days until access is given;
• for fines or imprisonment, court must be satisfied that no other remedy would be effective;
• make such other order as the court considers appropriate including an enforcement assistance order.
• Comments: Compensatory access must be more than the parenting time/access that was denied. For example, if one weekend was denied, then two should be made available to the parent who lost that parenting time with their child. Although fines may be effective in some circumstances, they would not be in many cases. Counseling, especially for the child involved, should be mandatory, with costs borne by the custodial parent. Expenses incurred while attempting to exercise access/parenting time should be compensated. Loss of custody should be a preferred remedy for multiple denials of parenting time. Prison terms for either parent are likely to be harmful to the child and should be considered only in the most serious of cases. Mediation should be ordered, but only in conjunction with compensatory access/parenting time greater than that denied, loss of custody, or other measure. There should be no reward for facilitating access denial. Fines may be the most appropriate remedy for medical or educational authorities that deny access to information to one or both parents. The wishes of the parent being denied parenting time should be given consideration when determining remedies. 

5. Obtaining an Enforcement Assistance Order

• is a direction to a police officer to assist the applicant in obtaining access to the child. Officer will be directed to do all things reasonably able to be done to locate the child and bring the child to the access parent.
• in addition to the conditions outlined above, the court must be satisfied on reasonable and probable grounds that access will be denied, and that no other remedy will be effective. One ground will be a history of access denial by the custodial parent.
• Comments: Removal of a child by force, should be undertaken only in extreme circumstances. Much preferable would be documenting of the circumstance by the officer, and then application for a reversal of custody. If this occurs, then the burden of proof, as to why custody should not be reversed must lie with the parent denying access time. In the vast preponderance of these cases, the court should order custody to the parent denied parenting time. If the child claims they do not want to attend, this is not grounds for denial of access, unless the child attends counseling sessions with an independent, certified, counselor for a minimum period of time, say 3 months. Likewise, sickness should not be grounds for denial of parenting time, unless the other parent is incapable of caring for the sick child. 

6. Using an Enforcement Assistance Order

• the threat of police intervention may mean that no intervention is actually required;
• if parent is unable to obtain access, he or she requests police assistance. If police officer unable to enter the premises where the child is believed to be located, he will contact a justice of the peace by telephone. The justice of the peace can authorize entry by force and a search of the premises, or make an order requiring the custodial parent to attend court to show cause why s/he should not be fined or imprisoned. Service of the order will occur by posting it on the premises.
• if access to the child is denied, the custodial parent may contact the justice of the peace to explain any change of circumstances which should cause access to be denied. The justice of the peace may decline to make a further order, may order that the police officer enforce the access, may direct compensatory access, or may make an order requiring the custodial parent to attend to court to show cause why s/he should not be fined or imprisoned.
• Comments: Once again, compensatory access, greater than the access denied, with expenses reimbursed; or a change in custody, are preferable alternatives to forcible entry, or forcible removal of a child. If exchange of the child(ren) does not occur with the presence of a peace officer, the officer should file a report including an affidavit that becomes, as standard procedure, part of the court file for that case. Involvement of a Justice of the Peace, for immediate orders, should be exercised only in exceptional circumstances. A preferable procedure is documentation of the incident, with a remedy provided by court at a later date, to minimize trauma that might affect the child. Circumstances whereby the parent being denied parenting time has traveled a great distance, or is only available at certain preplanned times may require immediate intervention by police and/or a Justice of the Peace. 

7. Where denial of access is determined to be excusable, the court may:

• decline to make an enforcement order;
• grant compensatory access;
• require parties or child to attend educational seminar, parenting course, counseling, or other sessions;
• mediation (court must allocate costs between parties);
• reimbursement for expenses (includes travel costs, costs of locating child and obtaining access, lost wages, other expenses court may allow);
• make other appropriate order.
• Comments: The court should not deem denial of access excusable except where there is incontrovertible evidence that this is in the best interest of the child. At the very least, counseling, by an independent, certified counselor should be ordered for the child, to assist them in understanding the situation from the child’s point of view. The burden of proof must lie with the parent denying access. 

8. Failure to exercise access

• court may order reimbursement of expenses actually incurred (includes travel costs, costs of locating child and obtaining access, lost wages, other expenses court may allow);
• conditions: there must be an access order, access parent has failed to exercise access, access parent failed to give reasonable notice to custodial parent.
• Comments: Reasonable efforts must have been taken to facilitate the access. For example, if the other parent does not arrive at the exact minute of the appointed time, this is not grounds for access/parenting time denial. Also, if there is possible confusion with respect to the circumstances of the exchange, these must be resolved before this is deemed failure to exercise access.