Parenting time refers to the period a child spends in the care of a parent, whether or not the child is physically with that parent, as outlined under Canada’s Divorce Act and provincial family laws. What happens when a child refuses to visit? When a child refuses to visit, the primary caregiver has a positive legal obligation to facilitate that time and encourage the relationship with the other parent to the best of their ability. Here are the 10 proven steps.
Key Takeaways
- Legal Obligation: In Canada, parents must actively encourage and facilitate parenting time; simply being “passive” is often seen as a breach of a court order.
- Best Interests Standard: Every decision regarding parenting time is governed by the “best interests of the child” test, not the parents’ preferences.
- Views and Preferences: While older children (typically 12+) have more “voice,” they do not have the legal “choice” to skip visits until they reach the age of majority.
- Documentation is Vital: Keep a detailed log of all attempts to facilitate visits and the child’s specific reasons for refusal.
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Determine the Root Cause: Estrangement vs. Alienation
It is critical to distinguish between “realistic estrangement” and “parental alienation.” Realistic estrangement occurs when a child has a legitimate reason to pull away, such as witnessing domestic violence or experiencing a parent’s poor parenting skills. In contrast, parental alienation involves one parent intentionally or unintentionally manipulating the child to reject the other parent. Identifying which one you are facing is the first step in determining whether the solution is a change in your own behavior or a legal intervention to protect the child’s relationship with the other parent.
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Review Your Separation Agreement or Court Order
Before taking action, you must understand the specific terms of your legal parenting arrangement. A Separation Agreement (a private contract between parents) and a Court Order (a mandate issued by a judge) carry different weights in terms of enforcement. If you have a valid court order, a child’s refusal does not automatically grant you the right to stop visits. In Canada, failing to follow a court-ordered schedule can lead to a finding of contempt, which may result in fines or even a change in primary residence.
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Fulfill Your “Positive Obligation” to Facilitate
Canadian courts have established that parents have a “positive obligation” to ensure parenting time occurs. This means you cannot simply say, “The child didn’t want to go, so I didn’t force them.” Judges expect you to use your full range of parental authority—the same authority you use to make a child go to school or the dentist—to ensure they attend parenting time. If the child refuses, you must be able to demonstrate the active steps you took to encourage them to go.
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Listen to the Child’s “Views and Preferences”
The Divorce Act and the Children’s Law Reform Act requires courts to consider the child’s views and preferences, given their age and maturity. While a five-year-old’s refusal is usually given less weight, the “voice of the child” becomes increasingly influential as the children age. In many provinces, you can request a Voice of the Child Report, where a trained professional interviews the child and presents their perspectives to the court, ensuring their feelings are heard without placing the burden of “choosing” on the child.
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Prioritize Therapeutic Intervention
If the refusal is persistent, legal threats often make the situation worse for the child. Seeking a Reunification Therapist (a specialized mental health professional who works to repair parent-child bonds) is often a “proven step” that Canadian judges look for. Proposing therapy shows the court that you are acting in the child’s best interests and trying to resolve the conflict outside of a high-conflict courtroom environment.
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Maintain a Detailed Parenting Log
Documentation is your best defense and your best evidence. You should keep a record of every scheduled visit, the child’s behavior leading up to it, the specific words used by the child if they refuse, and your response. If the other parent eventually brings a Motion to enforce the court order in existence, your log will serve as contemporary evidence that you attempted to facilitate the visit and were not the source of the resistance.
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Communicate Transparently with the Other Parent
It is easy for a child’s refusal to turn into a “he-said, she-said” battle between parents. Use a written communication tool (like an app or email) to notify the other parent immediately if a child is resisting. Invite the other parent to help solve the problem—perhaps by talking to the child on the phone or adjusting the transition time. This transparency prevents the other parent from assuming you are “gatekeeping” or interfering with their time.
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Consider a Mediation-Arbitration Approach
The Canadian legal system is moving away from adversarial trials in favour of Alternative Dispute Resolution (ADR). Mediation-Arbitration (Med-Arb) allows a neutral third party to help you reach an agreement, but if you cannot, that same person has the power to make a binding decision. This is often faster and less traumatic for the child than a standard court application, and it allows for more creative solutions tailored to your family’s specific needs.
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Address “Section 7” and Support Implications
While child support and parenting time are legally distinct in Canada, a total refusal to visit can sometimes impact financial arrangements. For example, if the parenting schedule was originally a “shared” 40/60 split and it shifts to a “primary” arrangement because of the child’s refusal, the amount of child support may need to be recalculated. Understanding how the Federal Child Support Guidelines apply to your changing reality is essential for long-term planning.
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File for a Variation Order When Necessary
If the child’s refusal is based on a “material change in circumstances”—it may be time to seek a Variation Order (a legal request to change an existing court order). Rather than constantly being in breach of an old order that no longer works, asking the court to update the parenting plan to reflect the child’s current reality is often the most responsible legal path.
FAQ
At what age can a child decide not to visit a parent in Canada? There is no “magic age” where a child can legally decide to stop visits. However, as a child grows older (typically around 11 to 14), Canadian courts give significant weight to their wishes. By age 15, it is very difficult for a court to force a child to visit against their will, though the legal obligation to facilitate remains until they are 18.
Can I be held in contempt if my teenager refuses to go? Yes, you can be, but it depends on your effort. If the court finds you were “passive” or encouraged the teen’s defiance, you may be found in contempt. If you can prove you did everything reasonable to get them to go and they simply were too large or headstrong to physically move, a judge is less likely to find you in contempt.
Conclusion
Navigating a child’s refusal to have parenting time is one of the most emotionally taxing experiences a parent can face. Whether the issue stems from a simple schedule conflict or a deeper issue like parental alienation, acting quickly and legally is paramount. By following these steps, you protect your legal standing and, more importantly, your child’s emotional well-being.
If you are struggling to facilitate parenting time or your child is consistently resisting visits, we can help you navigate the complexities of the Children’s Law Reform Act and/or the Divorce Act and provincial laws. Contact us today for a consultation to review your parenting plan.
