Vancouver denial of parenting time lawyers understand the heartbreak of a child being deprived of the love and guidance of two loving and caring parents after relationship breakdown. Lorne MacLean, QC was the winning counsel on Young v. Young, Canada’s leading case on the principle of a child being entitled to “maximum contact” with both of their parents. Mr. MacLean was also one of the first lawyers to advocate successfully for shared equal parenting. Vancouver parenting time denial cases now have powerful new rules to govern them thanks to new sections in our BC Family Law Act. Contact our Vancouver parenting time denial lawyers immediately as delay can impact the result of your case. You can call us toll free at 1-877-602-9900 to meet at any of our 4 offices across BC.
New Rules Govern Vancouver Denial Of Parenting Time
In the past only the cumbersome and heavy handed contempt remedy was available for Vancouver denial of parenting time cases but it had a high threshold to obtain success and the procedure was expensive. The new sections of our Family Law Act are sections 61 and 62. Compensatory make up time can be ordered if the Vancouver parenting time denial is wrongful.
In the recent BC Supreme Court case of KR v JW, the court reviewed the law and established principles to be used in a Vancouver parenting time denial case. Mr. Justice Betton reviewed a number of cases on the issue of Vancouver denial of parenting time and then provided a very useful summary of what rules a court will apply to decide if there has been a Vancouver parenting time denial:
[22] There are relatively few decisions that have considered ss. 61 and 62 of the FLA in detail. The provisions have, however, been referred to a number of times.
[23] The central determination needed before any remedy pursuant to those provisions is available is that there be a “wrongful denial of parenting time”. Section 62(1)(a)-(e) provides a non-exhaustive list of when a denial is not wrongful. Clearly, there will be scenarios where concluding denials are wrongful is straightforward, leaving only the question of identifying the appropriate remedy. The court also has discretion not to impose any consequence or remedy even if a denial is found to be wrongful; that is to say, s. 61(2) uses permissive not obligatory language.
[24] Consistent with the best interests of children being the singular concern, s. 62(2) also allows for compensatory parenting time to be ordered even if a denial is not wrongful.
[56] Clearly the sections are intended to provide a mechanism less rigid and difficult to apply than contempt proceedings. This is consistent with the objective of the legislation of making the best interests of the children the only consideration. To that end, the standard of proof being that I be “satisfied” that there has been a wrongful denial is a significant change from contempt proceedings.
[57] Parenting time that has been included in an agreement or that has been ordered must be respected. If not appealed or varied, compliance cannot be viewed as optional. The time constraint in s. 61(1)(b) ensures some contemporaneity between the alleged denial and the remedy, thus serving as well to focus on the best interests of the children. Section 62 ensures reasonable denials are permitted, again consistent with the best interests of the children being the only consideration.
[58] In my view, the objective of the provisions is to give the court a broad discretion that can be adapted to each unique situation. It would be inconsistent with the broad objectives to limit the remedies to only discrete events of an express denial.
[59] A pattern of wrongful conduct that frustrates an agreement or order such that parenting time is not fully available is a wrongful denial. A parent need not say the word “no” to scheduled parenting time for them to communicate a denial nor must they physically prevent the parenting time from occurring for it to be a wrongful denial. The cumulative effect of less definitive words and actions may suffice.
[60] When a child is resisting the parenting time accorded a parent by the order or agreement, it is appropriate to view the origins of that resistance. A parent who encourages that resistance by words and/or actions can, in my view, be said to be denying parenting time and, depending on the circumstances, it may be a wrongful denial.
[61] In circumstances such as this case, an assessment of the parent’s response to that resistance can be critical. If the response is situationally appropriate but ultimately unsuccessful in overcoming the resistance, the parent should not be found to have wrongfully denied parenting time.
[62] In addition, it is my conclusion that a parent who elects not to challenge the other parent who wrongfully denies parenting time at that moment should not be deprived of seeking a remedy pursuant to these provisions. That is why s. 61 exists, and the timeline in it would be defeated if a different conclusion were to be reached. Acquiescence to a wrongful denial does not change the character of the act of the wrongful denial.
[63] Where, however, a parent agrees to forgo scheduled parenting time because of the resistance of the child, it may preclude a finding that the other parent has denied parenting time but the circumstances of such agreement must be reviewed carefully. The genesis of the resistance is again critical, as is the other parent’s response to that resistance. Acquiescence or even agreement alone should not end the analysis. The underlying circumstances must be examined to prevent defeating the utility of these sections in ensuring the best interests of children are served.
[64] I will add that I see no reason to restrict the availability of the provisions in the context of interim applications. Indeed, the time constraints placed in the provisions require they be available throughout the course of the litigation. Further, the harmful effects of wrongful denial can be significant and should be addressed at the earliest opportunity. Having said that, courts dealing with interim applications seeking remedies under s. 61 should proceed cautiously and with restraint guided by the particular circumstances.
[65] In summary, the three questions I pose above should not be considered in isolation. With that proviso, I would answer them as follows:
1. The sections are not limited to discreet events of wrongful denial. While available in such circumstances, they are also available to address more nuanced circumstances where cumulative effect of a pattern of conduct, including words or actions, results in a loss of parenting time.
2. Where a child is resistant to scheduled parenting time, the source of that resistance must be examined to determine if the parent has fostered it. Further, that parent’s response to the resistance must be examined to determine if it is situationally appropriate so as to avoid the result being characterized as a denial of parenting time.
3. Where a parent entitled to parenting time agrees or acquiesces to forgoing scheduled parenting time, the circumstances must again be reviewed to determine whether there was, in fact, a denial by the other parent. For example, a parent who agrees or otherwise does not compel the child or the other parent to accommodate the parenting time may have had little practical choice in the face of the actions or words of the other parent. The fact of an agreement or acquiescence alone does not absolve the other parent of potential responsibility for wrongful denial.
If you are involved in a Vancouver parenting time denial case call the highly experienced lawyers at MacLean Family Law. Vancouver’s top rated family law firm as recently found by top choice awards is MacLean Law. We have offices in Vancouver, Kelowna, Surrey and Fort St. John to assist you with any Vancouver parenting time denial cases.
