Navigating a co-parenting agreement can be very complex and often raises a lot of questions. Even when you have successfully established a shared schedule for your child, situations arise where you may ask yourself if the contact should be denied. Wrongful denial can result in a number of different court orders. The party who is found to have wrongfully denied parenting time may be required to cover expenses, attend counselling, provide compensatory parenting time, or attend family dispute resolution. In some cases, a fine of up to $5,000 may be awarded as well.  As such, it is important to understand the law in this sensitive area.

First, what is your parenting arrangement?

In BC, a formal parenting agreement can be filed in either the Provincial Court or Supreme Court of British Columbia. If it is not followed, meaning one parent has breached the agreement, it can be enforced similarly to a court order.

Typically, the first course of action between you and the co-parent is to try to reconcile the breach amongst yourselves, as it may just be a misunderstanding of what the order means. For example, a change in a parent’s work schedule or traveling time may prevent the parent from adhering to the parenting agreement. If the misunderstanding is unintentional, it would be more cost-effective and timely to resolve the matter outside of court. 

Even if you have an informal arrangement, one parent cannot suddenly decide to make changes unless there is a genuine cause for concern. In these cases, it is worth seeking an order to finalize a schedule and resolve any disputes.

When might a parent deny time?

The Family Law Act (BC) (s. 62) acknowledges several circumstances in which denial is not wrongful and the courts are also given discretion to approve other situations.  In making this determination, the court always considers the best interests of the child. For example, in the case of D.J.S. v. J.M.D., (2014) BCSC 1143, the court found that denial was not wrongful because the family was in crisis and the mother required additional time with the child to restore the relationship. 

There are five specific circumstances listed in the Family Law Act in which denying parental time or contact with the child is permitted.

  1. Risk of Violence. If a parent reasonably believes that the child may be violently harmed, then denying parenting time would be considered appropriate.
  2. Influence of Drugs. As above, if there is a reasonable belief that the other parent is under the influence of drugs or alcohol and is not fit to care for the child, parenting time may be denied.
  3. Inconsistency. If the other parent has repeatedly failed to or refused to exercise their parenting time as decided under the parenting agreement in the 12 months before the denial, it may be considered lawful to prohibit contact.
  4. Illness. Sometimes denial of parenting time is not a reflection of the guardian’s parenting ability, but rather the physical wellbeing of the child. If your son or daughter is suffering from an illness and it is not suitable for the contact to go ahead, time may be denied on the grounds that the child is not medically fit. In some cases, a written statement from a medical practitioner may be required to substantiate the denial.
  5. Cancellation. If a parent previously cancelled the parenting time and did not provide sufficient notice that he or she no longer wishes to cancel.

In each of the above, the court will ask whether in those particular circumstances the denial was reasonable.

In the case of K.R. v. J.W., (2016) BCSC 225 (para 59), the court explained that denial can result from a cumulative effect of actions and words. It is not only saying “No” that can be interpreted as a denial of parenting time, but overall conduct that prevents the parenting time from happening. 

In the event a parent has failed to make regular child support payments, denial of access time is prohibited under the law.  

Missing allotted parenting time can be very difficult on a child emotionally, leaving them confused and distraught. It can also be tough for the other parent who must accommodate the non-compliant parents by re-arranging work schedules or incurring childcare costs.

Missed parenting time due to bad weather or situations beyond practical control are usually treated with leniency and make-up time should be allowed.

How can denial of parenting time be challenged?

If you are a parent or guardian being denied parenting time, and there are no apparent legitimate reasons for the denial, you have the option to bring an Application to court within 12 months of the denial.

If a court finds there was wrongful denial of parenting time, the court may order (but is not limited to) one of the following:

  1. require the parties to participate in family dispute resolution;
  2. specify a period of time during which the wronged party can be entitled to make up for any loss of parenting time or contact with the child; and
  3. require reimbursement for any expenses incurred as a result of the denial, such as travel costs, lost wages and childcare expenses.

Conclusion

The principal focus of any parenting agreement should always be the best interests of the child. Withholding contact out of spite or financial revenge will not be tolerated by the courts. There may however be legitimate and lawful reasons for parenting denial. An experienced family lawyer can help you negotiate these complicated matters and help protect the physical and emotional wellbeing of your child.

If you have any questions regarding any of the above, or would like to schedule a consult, our family lawyers in Vancouver, Anna Okorokov and Michael Lederman would be happy to assist.

 

Disclaimer

The above blog post is provided for informational purposes only and has not been tailored to your specific circumstances.  This blog post does not constitute legal advice or other professional advice and may not be relied upon as such.

References

https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_04#:~:text=(2)%20If%2C%20on%20an,or%20contact%20with%20the%20child.

https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/family-law/parenting-apart/other-parent-order

https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1143/2014bcsc1143.html