Unlike the Divorce Act, the Family Law Act has built-in remedies for the denial of parenting time, if you have an agreement or court order, and so long as you apply within 12 months of the missed time.
This can be useful in many different situations—it can be useful if the child or children are withheld for no legitimate reason, or if parenting time is missed through no real fault of either party. If the denial is wrongful, then fines of up to $5,000 can be ordered, and/or compensation for any sunk expenditures (movie tickets bought in advance, for example). Please note that child support and parenting time are separate issues, and that failure to pay support does not justify withholding the child.
Section 62 of the Family Law Act sets out some specific circumstances where denial is not wrongful, including:
- the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;
- the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;
- the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner or nurse practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;
- in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;
- the applicant
- informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and
- did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;
Even if parenting time is simply denied, and not wrongfully denied, the court can still order make-up time. This might happen if, for example, there is a halt in parenting time for a Ministry of Children and Family Development (MCFD) or RCMP investigation, or there was a protection order put in place which was subsequently set aside. It could also occur if someone was out of town from the child, but, through no fault of their own, came back a few days later than expected, possibly due to bad weather.
In my view, this section is actually a good idea, particularly in the example of the MCFD or RCMP investigation—it allows the court and the reporting parent to ensure that the child is safe, while the parent who is under a cloud can have some knowledge that, if the allegations are not borne out, the child will be able to spend some extra time with them to make up for it. This discourages reporting someone to gain a temporary advantage or out of spite, and it removes the necessity to immediately make an almost-certainly premature court application to restore parenting time while an investigation is on-going, which is likely to fail. It saves both parties money, but also saves valuable court time and taxpayer resources by allowing parties to be more patient with the process.
While parties should be discouraged from adding up five minutes here and there until they have a half day and then going to court, this section allows a clear path for redress where someone has withheld the child out of spite. It also allows a path where parenting has been denied—like the bad weather example above—where it is nobody’s fault, but the other party is unwilling to be reasonable in allowing compensatory time, as this is a clear indication from the legislature, in addition to the provisions that give remedies for when someone fails to exercise their parenting time, that they expect people to exchange the child as they’ve agreed or been ordered. When that doesn’t happen, the legislature has made it clear that the child who has been withheld will not, in the end, be denied time with the other parent.
If you are facing a related issue, please contact one of our Family Law lawyers.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.
This article was written by a lawyer formerly with Lindsay Kenney LLP.