G. Terms and Conditions

Author:Julien D. Payne - Marilyn A. Payne

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1) General

Subsections 16(6) and 17(3) of the Divorce Act confer a broad discretion on the court to grant custody or access orders for a definite or indefinite period and subject to any such terms, conditions, or restrictions as the court thinks fit.106

These subsections are broad enough to permit a court to incorporate a peace officer assist clause in a custody or access order.107Custody orders can be reviewable or varied after a specific period of time.108Review orders, unlike variation orders under section 17 of the Divorce Act, do not require proof of a change of circumstances to justify modification of an existing custody or access order.109It is appropriate that the court order

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a review where there is uncertainty as to what the final disposition of a matter should be, and when and how the trial judge anticipates the uncertainty will be resolved.110 A review order is also appropriate in situations where serious uncertainty may arise and require case management of transitions for limited purposes.111Although courts are generally averse to attaching conditions to a custody order that limit the powers of the custodial parent,112it is not that unusual for a court to impose restrictions on an access order that restrain the non-custodial parent from engaging in conduct that is detrimental to a child.113In determining what restrictions, if any, should be placed on a custodial parent, a court should be wary about interfering with the custodial parent’s right to decide what is best for the child. A court should defer to the decision-making responsibilities of the custodial parent unless there is substantial evidence that the child’s long-term welfare will be impaired.114There are two notable exceptions where courts will impose restrictions on a custodial parent.115The first arises in mobility cases wherein the court determines that restrictions should be imposed on a custodial parent’s right to relocate with the children.116The second arises in high-conflict parental disputes wherein the court directs one or both parents to undergo counselling.117These orders are becoming increasingly common. While enforcement of court-ordered counselling by means of contempt proceedings may not be permissible, it is not improper for a court to draw an adverse inference against a parent who refuses to comply with such an order, and this may result in a court-ordered variation of the parenting regime. By analogy to court-ordered blood tests in disputed paternity cases that may result in an adverse inference being drawn against a person who refuses to undergo the test, a parent who refuses to

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undergo counselling is unlikely to be successful in any Charter challenge of the court’s order.118In the absence of spousal hostility, courts will often order specified midweek, alternate weekend, and summer access. When spouses are still at war and cannot work out an access schedule, the court will step in to fill the vacuum by stipulating detailed access arrangements. Detailed specifications are usually imperative in high-conflict situations.119Where appropriate, a court may order supervised access, which signifies that a third party will be present when access privileges are being exercised.120

Supervised access may be ordered when some risk to the child is envisaged.121

Supervised access creates an artificial environment that inhibits the development of a natural, healthy parent-child relationship. Consequently, it should only be imposed by a court in exceptional circumstances.122Because of their inevitable limitations, the exercise of access at a supervised access centre should be avoided unless a suitable access supervisor cannot be found or there are serious and current safety issues which can only be addressed through institutional supervised access.123Supervised access may be found appropriate where there is reason to question a non-custodial parent’s fitness to parent, or ability to protect the child if domestic violence, child abuse, or parental alienation has occurred, or if there has been no contact between the parent and child for an appreciable length of time. Supervised access is used as a last resort and should not become a permanent feature of a child’s life. It is intended to provide a temporary and time-limited means of resolving a parental impasse over access and should not ordinarily be used as a long-term solution.124It is typically ordered when children require gradual reintroduction to a parent or until a parent is sufficiently rehabilitated so that the

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child is no longer in danger of physical or emotional harm.125But in Merkand v Merkand,126the Ontario Court of Appeal dismissed the appellant’s submission that the trial judge had erred in law by ordering supervised access to the children for an indefinite term, being of the opinion that the trial judge was aware that her order was exceptional in that it included no provision for a transition to unsupervised access nor any prescribed review date. While acknowledging that such an order should only be made in rare circumstances, the Ontario Court of Appeal found that the record fully supported the trial judge’s decision to order the continuation of supervised access because of the appellant’s attempts to manipulate the children and pressure them into living with him. In rejecting the appellant’s submission that the order of the trial judge rendered it practically impossible for the appellant to obtain a future order for unsupervised access, the Ontario Court of Appeal pointed out that the trial judge’s order in no way precluded a future application to vary the terms of access upon proof of a material change of circumstances. Orders for supervised access to a teenager are rare but the circumstances of a particular case may justify a determination that it is in the child’s best interests to have long-term supervised access, notwithstanding the age and wishes of the child.127Although supervised access is not a remedy the law looks on with favour, particularly over the long term, termination of access is obviously an even more drastic remedy, rarely invoked unless absolutely required in a child’s best interests.128In appropriate circumstances, a court may suspend access pending the submission of an acceptable parenting plan.129

2) Intended Change of Residence; Mobility Rights

Pursuant to subsection 16(7) of the Divorce Act, any person granted custody of a child may be required to give notice of any change of residence to any other person who has been granted access privileges.130In the absence of any specified period to the contrary, such notice must be given thirty days in advance of the change of residence. Given such notice, the person with access privileges may apply to the court to challenge the intended change of residence of the child or seek variation of the custody or access arrangements in order to preserve meaningful contact with the child.

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The issue of mobility rights was addressed by the Supreme Court of Canada in Gordon v Goertz,131wherein the custodial parent, the mother, intended to move to Australia and wished to take her daughter with her. Upon learning this, the non-custodial parent, the father, applied for custody of the child or, alternatively, an order restraining the mother from removing the child. The mother cross-applied to vary access so as to permit her to change the child’s residence to Australia. In the majority judgment of McLachlin J, as she then was, which represented the opinion of seven of the nine judges, the law was summarized as follows:

  1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.1322. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

  2. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

  3. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.1335. Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.

  4. The focus is on the best interests of the child, not the interests and rights of the parents.

  5. More particularly the judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

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(b) the existing access arrangement and the relationship between the child and the access parent;

(c) the desirability of maximizing contact between the child and both parents;134(d) the views of the child;135(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;136(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.137In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

In applying the above criteria to the facts of the case, the Supreme Court of Canada, in both its majority and dissenting judgments, concluded that the mother’s custody of the child should be continued, notwithstanding her...

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